269 F. 768 | 2d Cir. | 1920
After the purchase by Capt. Gilbert, in the fall of 1917, the then barge Henry R. Tilton was rebuilt and re
In the latter part of February, she left the dry dock and sailed light to Norfolk, there to take a cargo for Brazil. She remained at Norfolk several days, and after being loaded with cargo it was discovered that she was leaking. An examination was made by her master, Capt. Gilbert, examining for the owners, and a marine surveyor, who examined for Lloyd’s agent and as a representative of an insurance company. It was found that there was a treenail hole about 50 feet from the bow on the starboard side and about 6 inches under the water line when the ship was loaded and about 4 feet above the water line when the vessel was light. There were also some spike holes. The tree-nail hole was about seven-eighths of an inch to one inch in diameter, and the spike holes about one-quarter of an inch in diameter. The explanation as to this condition is given as follows: It is said that the treenail hole had not been fully plugged by the pine plug which had been placed in it, and that the spike holes were left when the stage, used in repair work, was removed. But the testimony is that these holes were then carefully plugged and the vessel was declared seaworthy by the three who took part in the examination.
On March 9, 1918, she left Norfolk for Brazil. For the first three days out, she encountered a severe storm reaching a maximum of 60 miles per hour off Harteras, with heavy seas and gales. The testimony is that the storm came from the south, increased to a gale, with mountainous seas. They could not hold sail on her, and she was making so much water, and laboring so heavily, it was deemed advisable to return to Norfolk, and this was done; the ship arriving on the 18th. Thereafter, and on March 25th, a survey of the vessel was made by the same three examiners. It revealed that she had been badly strained. The testimony is that the conditions found were caused by bad weather. Capt. Gilbert testified that the conditions found were caused by bad weather, and the marine surveyor testified that conditions were due to straining of the vessel. Requests were then made to various shipbuilders for bids for repairs. The lowest bid received was for $40,000. One witness testified that it would cost $40,650. On April 12th defendant in error abandoned the vessel to the plaintiff in error, declaring it to be a total loss. Liability is denied on the ground that the vessel was unseaworthy.
The District Judge submitted the question of unseaworthiness of the vessel to the jury as one of fact. It resulted in a verdict for the defendant in error.
We agree with the instruction, given by the District Judge to the jury, that—
“Seaworthiness is a relative term, and it means the capacity of the vessel to resist or overcome the ordinary perils of the sea; that is, such perils that a vessel engaged in that business, and upon such voyages, and at that age, would probably encounter.”
It was fairly left for the jury to determine whether the ship was seaworthy to the extent of being competent to weather the ordinary perils of the sea with the cargo she had. Their verdict, if found after a consideration of conflicting evidence, we are not at liberty to disturb. McLanahan v. Universal Ins. Co., 26 U. S. 170, 7 L. Ed. 98; Troxell v. D. L. & W. R. Co., 227 U. S. 434, 33 Sup. Ct. 274, 57 L. Ed. 586; Napier v. Greenzweig, 256 Fed. 196, 167 C. C. A. 412. The storms which the vessel encountered after she left Norfolk were a sufficient explanation for the condition of the vessel as found upon her return to Norfolk.
YVe find no error, and the judgment is affirmed.