Opinion
No. 167.
February 1, 1932.
Appeal from the District Court of the United States for the Eastern District of New York.
In Admiralty. Libel in personam by the Gold Dust Corporation, as successor to the American Linseed Company, against the Munson Steamship Line, as owner of the steamship Munindies. From a decree for libelant in part, respondent appeals.
Modified.
This suit was begun as an action in personam against the respondent as owner of the steamship Munindies, on which a shipment of linseed belonging to the libelant's predecessor had been brought from Buenos Aires to New York and was found to be in damaged condition upon arrival. The respondent's ship Munorleans was attached, but that attachment was subsequently vacated and an answer was filed.
The Munindies loaded a partial cargo of logs at Santa Fé, Argentina, between August 5 and 14, 1927, and from there proceeded to Buenos Aires to take on the linseed which was to complete her cargo. She loaded all but about 500 tons of it at the Dreyfus Elevator in the South Basin, when lack of water made it necessary for her to shift on August 21st to the North Basin to load the remainder. She made this change under her own power with the assistance of two tugs. She was in charge of two dock pilots, which the respondent employed, and had to pass through a series of basins in some respects like locks. In so doing, she took a sheer which brought her No. 1 cargo port on the starboard side into contact with a wall. She went on to her final loading point, where an examination was made by her master, chief engineer, chief officer, and the port captain, an employee of the respondent. At this time the vessel was so heavily laden that the bottom of this loading port door was only about nine inches above the water line and the lower part of the forward hinge from which some paint was scraped was already submerged. Examination of the outside was made with the aid of a boat and of the inside by crawling over the cargo which had been stowed in No. 1 hold. Two rivets were found to be weeping, but they did not appear to be loose. No damage to the cargo port itself was discovered. No repairs were made. Thereupon the remaining portion of the shipment of linseed was loaded, and the Munindies proceeded with it to New York. When being discharged there some of the linseed in the after part of No. 1 'tween-deck and in the lower hold under it was found to be wet. It was then discovered that this water had entered through an opening from one-sixteenth to one-eighth of an inch wide between the lower forward corner of the No. 1 starboard cargo port door and the ship's side. Beyond any doubt, this opening was a result of the collision with the wall at Buenos Aires, though it may have actually developed later because of a tendency of the door to spring back to its normal shape and away from the ship's dented side.
While the ship was being unloaded at New York, the second assistant engineer was ordered to fill tanks with fresh water for use for boiler inspection and for general purposes connected with the ship. This was done by running water into the forepeak and letting it run by gravity into the tanks below. While he was doing this, he requested and received shore leave, and was told to notify his relief that the tanks were being filled. He failed to do so, with the result that during the night the tanks overflowed and more linseed was damaged by this fresh water.
The bill of lading contained the following:
"11. The Carrier shall not be liable as Carrier or otherwise, for any loss, damage, * * * or default * * * occasioned by any of the following Excepted Causes, throughout this Contract always excepted; by causes beyond the Carrier's reasonable control; by dangers or accidents of the sea or other waters and navigation or transportation of whatsoever nature or kind; * * * by any latent or other defect in hull, machinery or appurtenances of the vessel * * * or unseaworthiness thereof, although existing at the time of shipment * * * or at the beginning of the voyage provided due diligence shall have been exercised to make the same seaworthy. By collision * * * by faults or errors in management of the Vessel provided due diligence shall have been exercised to make the Vessel in all respects seaworthy and properly manned, equipped and supplied. * * *"
"14. This shipment is subject to all the terms and provisions of the Act of Congress of the United States approved February 13, 1893, entitled `An Act relating to the navigation of Vessels,' etc."
There was some additional damage to linseed in the after part of No. 4-5 hold for which the respondent admitted liability. The respondent was held liable for the salt water damage but not for that caused by fresh water, and appealed. Both parties filed assignments of error.
Rumsey Morgan, of New York City (Ralph W. Brown, of New York City, of counsel), for appellant.
Bigham, Englar, Jones Houston, of New York City (Oscar R. Houston and James N. Senecal, both of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The most that may fairly be said of the examination made at Buenos Aires to discover what damage had been caused by the collision with the wall is that it was superficial. The representatives of the respondent simply made such visual examination as they saw fit without moving any cargo, and failed to discover the damage which had been done and which would have been sufficient if discovered to cause a prudent man to have it thoroughly investigated and repaired before the voyage to obviate the danger of just such damage to the cargo as subsequently occurred. In failing to do more than look a little, the respondent's men merely took a chance on the seaworthiness of the ship before she broke ground. It was not an error in management, but a lack of due diligence to make seaworthy for which the trial court correctly found the respondent liable, since it failed to carry the burden of proof resting upon it to show such due diligence. Grace Co. v. Panama R.R. Co. (C.C.A.) 285 F. 718-722; Jahn v. The Folmina, 212 U.S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748.
As to the fresh water damage, the respondent was relieved from liability on the theory that it was occasioned by an error in management for which no recovery may be had under section 3 of the Harter Act (46 USCA § 192) incorporated in the bill of lading. The second assistant engineer was clearly negligent in leaving the ship with water running into the tanks without telling any one to shut it off when the tanks were full. We notice the fact that this intake of water was after the ship had ended the voyage on which the linseed was carried to its destination although the cargo had not been discharged, and that it had no direct connection with that voyage, but we do not now decide whether that affects the respondent's liability under the Harter Act. No exemption can be claimed under section 3 in any event unless it is shown that due diligence was exercised to have the ship properly manned. The Fort Morgan (C.C.A.) 284 F. 1, 4. As there was no evidence to show such due diligence in respect to the competency of this second assistant engineer whose negligence caused the damage, the respondent takes nothing from the Harter Act, and must be held liable for the fresh water damage to the linseed.
Decree modified in accordance with this opinion.