79 F. 371 | S.D.N.Y. | 1897
The above libel was filed to recover damages to a large quantity of sugar in Nos. 3 and 4 holds of the
The vessel sailed from Alexandria on January 30, 1896. There was no leak of any kind until February 14th, four days after passing Gibraltar. On that day weather of extraordinary severity set in, and continued gales were encountered until arrival at the Delaware Breakwater on March 6th. In this weather the ship received much injury from the seas; two lifeboats were damaged, one washed away; the winches were damaged, pipes and ventilators on deck carried away, bridge, rails and stanchions bent and broken; the after deck started in two places, the wheel chains parted several times, shackles parted, and the propeller shaft fractured through racing, while pitching in the heavy seas. The leak occurred during this stormy weather. The defects in the rivet, when examined, were sufficient, according to the estimate of Mr. Mancor, the libel-ant's expert, to fill the port bilge, which was 80 feet long from the sluicegate to the bulkhead forward, in about seven hours. Had the sluicegate leading into the well been opened twice a day during the stormy weather, as was customary at other times, no such accumulation of water would have occurred, as the leak would have been soon discovered in pumping the water from the well, and the pumps were sufficient to prevent any accumulation of water or consequent damage. But the opening of the sluicegates during the heavy weather was neglected; and the accumulating water having overflowed (he bilges, gradually engulfed the hags of sugar, and formed within the bilges a candied mass, which at length somewhat checked the leak, but not without a large loss and damage to the sugar.
When the defective rivet was found on docking the ship, it was knocked in, and lias been produced in court. The cylindric part is somewhat oblique as respects Hie plane of the inner head, which is intact, showing that the holes in the overlapping plates through which it was originally driven when hot, were not perfectly true, so that both heads must have liad something of a cant. The exterior end of the rivet, after being driven in hot, was battered down, so as to fill up the flaring countersink on the outer surface of the ship’s plate, extending into the plate about three-eighths of an inch in depth, and thus forming a clinch or outer head, flush with the plate. The defective rivet proves to be three-sixteenths of an inch short, and the countersunk portion, which should be flaring outward, is gone. The defendant contends that the rivet and the rivet hole were in good order at the time when the vessel sailed; that the outer rivet head or countersunk portion was broken off
The libelant contends that the rivet was defective when the ship sailed, and that the damage falls within the express liability created by the provisions of the charter and the bill of lading, and that those provisions supersede the Harter act in the present case, even if “due- diligence” were shown, which, it is claimed, is not proved.
fiefore considering the terms of the charter and bill of lading, my conclusions concerning some controverted matters of fact should be stated. The clear weight of evidence seems to me to show the following:
1. That the exterior end of the rivet to the extent of about three-sixteenths of. an inch, including all the flaring or countersunk portion, was gone at the time the ship was docked and the defect discovered, i. e., before the rivet was driven out.
The loss of three-sixteenths of an inch in length could not have been caused by the two or three blows of the hammer by which the rivet was driven back. Had the rivet been then entire, it could not have been driven back without first cutting out, or breaking' off, the flaring portion which forms the clinch or head. It was neither cut nor broken off at that time; and it could not have gol into the present shape by rust alone. Had the flange been broken in driving back, or had the flange rusted away, the cylindrical part of the rivet would have shown its full length, or nearly its full length, instead of being three-sixteenths of an inch short; and if broken off, the circumference at the end would naturally also have shown marks of forcible breaking all around, quite different from those which the rivet now exhibits. On the other hand the rivet does show upon the circumference, at the outer end, some toothed marks of rupture, such as would be likely to attend a fracture at the depth of the countersink, viz. three-sixteenths of an inch; and I accordingly find that there was such a fracture and loss of the outer end of the rivet to that extent.
2. This fracture and the loss of the countersunk portion of the rivet occurred some time during the heavy weather that the ship encountered, beginning on February 14th, more than two weeks after the ship sailed from Alexandria. This is the necessary inference from the fact, that the rivet hole was about 14 feet below the water line, and from the facts (a) that prior to the ship’s arrival at Alexandria, there had been no noticeable leak; (b) that no leak was visible at Alexandria, when the limber boards were all taken •up and the pockets of the limbers carefully cleaned at the placo •where the defective rivet was afterwards found; and (c) that after sailing from Alexandria, and for 16 days until heavy weather set in, the sluices 'vyere open daily and no water was found up to that
•3. There is not sufficient evidence to warrant my finding that 1 here was any lack of diligence in the inspection of the ship. The vessel was comparatively new, and built toy hrst-class makers. She passed her first Lloyd’s survey in February, 1895, when the whole bottom was inspected and the riveting found sound. No accident intervened: Diligent care of the ship does not require redocking more than once a year, in the absence of some known necessity for it; and at the time of this voyage, a year had not expired since the last docking.
1. The excessive vibration caused by long-continued racing in heavy weather is adequate to explain the breaking-off of the conn tersink of the rivet. This has been known to occur before; usually with more than one rivet head broken off. Here there was but one broken. This, however, dees not discredit the cause in this case, because there is otherwise abundant evidence of the existence of the cause in the long-continued very heavy weather, and much other damage to the ship. In the case of The Alvena there was no evidence of the existence of any sufficient external cause. 74 Fed. 252, 254, 255. But where the existence of an adequate cause, of the damage to a seaworthy ship is proved, that is presumptively sufficient to relieve the ship. The Warren Adams, 20 C. C. A. 486. 74 Fed. 413, 416; The Sintram, 64 Fed. 884. Cases of single rivet heads broken off are in evidence. That only one was broken is evidence of the soundness of the general structure, or that the vibration was not sufficiently violent or long continued to break others. It is also likely enough that the cant given to the rivet by driving it through the overlapping holes which were not quite true, ami the cant given to the clinch at both ends might diminish its endurance, by subjecting it to an unequal strain, and increasing- the in jurious effects of the vibration of the plates against it. If such was the fact, any such mere inequality iu the strength of the rivets does not amount to unseaworthiness, or a violation of the provision of the charter that the ship shall be “light, staunch and strong.”
Upon the above conclusions of fact, it follows that the access of water through the rivet hole arose primarily from a peril of the sea; that is to say, It was an access of sea water through an accident to a seaworthy ship, arising from extraordinary'weather, the eonse
The evidence leaves no doubt that had the sluicegate been ,opened twice daily, as customary, no damage would have happened, notwithstanding the leak. It is evident, however, that the daily opening of the sluiceways is a part of the “management of the ship'-': and inasmuch as the evidence shows that the owners and their agents exercised “due diligence,” the ship and owners are exempted from liability for this resulting damage by the third section of the Harter act (Act Feb. 13, 1893; 2 Supp. Rev. St. 81, 82), unless the provisions of the Harter act are superseded by the contract, as the libelant claims. Hine v. Bermudez Co., 68 Fed. 920, 923. Although this act applies to shipments upon foreign vessels transporting cargoes to this country, I have no doubt that shipowners for whose benefit the exemptions of the third section were provided may waive these benefits and bind themselves to a more extended responsibility than the statute imposes, if they choose to do so; but no such waiver should be found, except upon explicit proof, or undoubted inference.
The charter party in this ca.se, after reciting that the ship should be tight, staunch and strong, and in every way fitted for the voyage, provides for the delivery of cargo, but with numerous exceptions, which are stated in section 4, among which are the following:
“The act of God, perils, dangers and accidents of the sea or other waters of what nature and kind soever, * * * any latent defect in hull aad machinery, stranding, collisions, and all other accidents of navigation, and all losses and damages caused thereby are excepted, even when,occasioned by negligence, default or error in judgment of the pilot, master, mariners or other servants of the shipowner; but unless stranded, sunk or burnt, nothing herein contained shall exempt the shipowner from liability to pay for damage to cargo occasioned by bad stowage, by improper or insufficient dunnage or absence of customary ventilation, or by improper opening of the valves, sluices and ports, or by causes other than those above excepted, and all the above exceptions are conditional on the vessel being seaworthy when she sails on the voyage; but any latent defects in the hull, pipes or machinery shall not be considered unseaworthiness, provided the same do not result from want of due diligence of the owners or any of them, or by the ship’s husband or manager.”
The nineteenth clause of the charter provides'that:
“The Mediterranean, Black Sea and Baltic grain cargo steamer bill of lading, 1885, is to be used under this charter, and its conditions are to form part thereof.”
The bill of lading contains the clause, “All conditions as per charter party,” giving the date of the charter, and then enumerates substantially the same exceptions as the charter; but as respects latent defects it reads that “latent defects in the machinery shall not be
The shipment in the present case, however, was by the charterers; and the libelants, as indorsees of the bill of lading, took the goods subject to the provisions of 11m charter parly, inasmuch as the bill of lading expressly recites, “All conditions as per charter party.” The somewhat narrower provision of the bill of lading as respects the hull, therefore, does not exclude the additional provisions of the charter, and the provisions of the charter must, therefore, govern.
The effect of the charter exceptions is largely the same as the provisions of the Harter act—passed eight years after this form of bill of lading was adopted. By the language of the charter, a, latent defect in the hull or machinery is not to be considered unseaworthiness, when, as l find here, there was no want of due diligence. If there was any defect in the rivet, it was a latent defect, as it was not visible upon such inspection as was required and given, as above found: so that the ship cannot: be deemed unseaworthy under the charter. The Carib Prince, 15 C. C. A. 385, 68 Fed. 254.
The negligent failure to open the sluicegate in the heavy weather is clearly covered by the express exception of “perils, dangers, or accidents of the sea or other waters, * * * and all other accidents of navigation, and all losses and damages caused thereby, even when occasioned by negligence of tin; master, mariners or other servants of the shipowners.”
In effect, this exception, as applied to this case, is identical with the third section of the Harter act, since the same negligence is a part: of the “management of the ship.” The tfilvia, 64 Bed. 607, •affirmed 15 C. C. A. 362, 68 Fed. 230; The Etona, 64 Fed. 880.
The subsequent provision of the charter, viz, that “nothing herein contained shall exempt the shipowner from liability to pay for damage to cargo occasioned * * * by causes other than those above excepted,” does not aid the libelant., because the exception of sea, perils and of negligence of the seamen in connection therewith is one of the “'causes above excepted”; and it was that cause that made the leak operative to the libelant's damage.
The charter, contains the further provision:
“That nothing herein contained shall exempt the shipowner from liability to pay for damage io cargo occasioned * ® * by improper opening of valves, sluices and ports.”
There can be no doubt that the opening of valves, sluices and ports during the voyage is a part of the “mana gem eat of the ship.” The Silvia, supra. Damage arising from negligence in this regard, therefore, would fall within the exemption of the Harter act; though this charter and the bill of lading provide that nothing therein shall exempt the owner from liability caused by improperly opening the valves, sluices or ports. The negligence in this case, however, does not fall within the language of this qualification. For this damage did not arise from any improper opening of the sluice-
Even if the effect of this exception in eases coming within it, would be to supersede the provisions of the Harter act, and to make the ship and owner legally liable for the damage arising from open valves, etc., under their general liability for negligence, as to which I express no opinion, nevertheless, inasmuch as I cannot find this damage to be covered by this clause of the charter and bill of lading, the previous general exceptions, and the third section of the Harter act to the same effect are sufficient to absolve the ship.
The libel must be dismissed, with costs.