Balfour, Guthrie & Co. v. American-West African Line, Inc.
136 F.2d 320
2d Cir.
1943
Check Treatment

*1 longer impose no court to can questioned. Devine, 237 Morgan v. 632, 1153; 712, Morgan 35 S.Ct. 59 L.Ed. Sylvester, Cir., v. Con 231 F. ceding years im five that the sentence of posed by the court the second count of the indictment was excessive the law authorized three a sentence of years, it sentence does follow that the n por legal for that reason void. The tion of the sentence attacked corpus proceeding. this habeas McGourin, Harlan v. 218 U.S. Appel 54 L.Ed. 21 Ann.Cas. 849. custody legally still detained un unexpired portion der valid and question, sentence and is not entitled to Sylvester, Morgan immediate release. v. supra; Hudspeth, Reger v. Hill, McNally supra; F.2d v. Wall Hudspeth, v. Hunt Hudspeth, v. Dodd Peak, App.D.C. v. F.2d 430. appealed judgment from is affirmed. CO.,

BALFOUR, Limited, & GUTHRIE al. et AFRICAN AMERICAN-WEST LINE, Inc. LINE, Inc., AFRICAN

AMERICAN-WEST BALFOUR, CO.,& GUTHRIE Limited, et al.

Nos. Court of Second Circuit.

Aug. 2, 1943. Detels, Martin City of New York (Big- ham, Englar, Houston, & Ezra G. Jones Fox, Benedict Sullivan, Daniel A. City,

of New York on the brief), pellants. Betts, Jr., Geo. Whitefield of New York City (Hunt, Hill & Betts and Helen F. Tuo- hy, City, all of New York on the brief), appellee. *2 321 CLARK, year. a warn- in a ing from SWAN, this and Before Shipping, of the American Bureau Judges. Circuit surveyors, 20, 1937, dated May to all “Zar- longitudinally ships framed like the CLARK, Judge. grooving 'and embo” for should watched voyage to New On a Africa West corrosion, yet more libellants contend that January, 1940, plate of the York in hull stringent applied. tests should during heavy steamship “Zarembo” cracked however, practical tests, proposed. No are seas, hold, sea her water entered No. unreasonably And the district court not cargo damaged. her cocoa beans suggested, warnings, in so far as cargo owners, Balfour, Guthrie & The Ltd., effect, given any probably spurred Ltd., African, and Commonwealth surveyors on to exercise even more care peal judgments in a libel in from adverse actually employed. in the tests event we need not In cargo damage rem for and loss and in a go further into nice- against ship- cross-libel themselves seaworthiness, ties of examinations for for owner, Line, African American-West enough has been said to show that dis- general average. is- The substantial findings trict diligence court’s of due sue before us is whether the district court clearly no means erroneous. Cf. The finding diligence erred in exer- that due Court, Quarrington ship seaworthy prior cised to make the to Lighterage Corp. Petterson & Towing voyage. narrower is wheth- New Co., Cir., York Cent. R. properly African was de- Commonwealth recovery against ship- nied a owner, alleged delivery for an short The damage district court also found that beans, bags of cocoa because of its failure to by perils was caused of the sea. required by to file written claim clearly The evidence supports finding precedent its the condition ship gauntlet perilous ran a seas— shipowner’s liability. appeal The frequently for the wind was Beaufort cross-libel appeal in the scale, ship’s deck, waves washed the main libel. The district court referred the particular one freakish na- general average determination of to a com- ture shook violently, the whole vessel rivet- missioner. popped straining heads off with the ship, long heavy list of other weather a has There is no that in fact the doubt recounted, damages including ship unseaworthy at the time she sailed. ladder, cracked, gal- broken deck ley main rail plating Her in excess of where it was worn thin cracked stack, stool, range light smoke and vent cent, course, per though, pipes away, steering and cowls torn chains hindsight; maximum wear is con and turn buckles strained. Cf. Ore S. S. per Only sidered cent. if due safe Corp. Hassel, Cir., D/S A/S diligence was exercised to make the July district 1943. The court did seaworthy exculpated her owner be perils find that of the sea liability. United States proximately damage. alone caused the unnecessary this was in view its further regular survey annual of the finding diligence of due on January, 1939, “Zarembo” was made in and shipowner seaworthy, make the vessel four-year special survey her in Novem perils which we have affirmed. At least ber, 1939, just before voyage. the African contributing the sea were cause of the During both, plating was hammer test damage; thus witness the fact that the ves- ed, out, by inside survey- at least one voyage withstood sel and West Africa or. And numerous visual examinations of began unusually leak se- told, the hull were also made. All some vere weather was encountered on the re- inspected plate fifteen men and riveting Adams, Cir., turn. Cf. The Warren F.2d survey between the first certiorari denied accident, in some cases on more than This, course, L.Ed. 316. occasion. support for is further the conclusion that What would ordinarily thus suf- shipowner exculpated diligence ficient an exercise of due dis- liability for sea water under the Act flaws, exception closed no with the of some plate adjacent on corrosion to the one cracked; survey report which erred,' The district court how Janu- ary, recommended its ever, renewal holding with- that there could be no re- .322 amount in realized titled to vage Rep. pard Hunt, apparently damaged cargo sold as inedible as Geo. Commonwealth African ments asian cumstances, void. that stored testimony condition to cluded which, loss in suit fy delivered. upon the ly ther, the date vision damage” shall not shipper to have within go unless written vides Act claim therefor was “after timely *3 covering bill of covery Commonwealth (6) is that failure to owner would do any stipulation Department Agriculture filing liability Act, Balfour, any within a V, § & Co. v. United Steam customary that failure been delivered giving [1921] written claim conditioning a should not in Nevertheless, 3(6), thirty days requirement of seem c. no event clause when the the reasonable called for. hold No. of that the similar delivery. its statement turn, filing owed bring To like trifling credited cargo, because suit at no modification of the of the a in- violence to to have been Guthrie & such has Larrinaga S. S. year prior enforce which was in bill A.C. requires and oil. of provision in bills suit U.S.C.A. § been provision in a prejudice notice be liable for may prejudice right written goods given within six months amount realized after carrier otherwise Navigation Co., Ltd. written claim of This is also to notice give share of bags 351; Coventry Shep- within one parties and as For it claimant file written claim of shipowner’s liability interpreted a bill of written claim as time. Cf. implication of shall be null and we provided that thereof was at most was en “notice of loss should the damages. African salvage received refused notice.” lading lessening of it failed scheduled date the unless written damage.1 Act, 14 view appears 1303(6), goods should loss, Co., general right lading among with that apparently year after funds entry by Austral- to nulli- 1303(8), prior certain- be con- But the British of car- of Hence finally of the latter judg & 15 given libel Ll.L. were short than loss, pro- pro- fur- sal cir av- within the so of Moreover, or just the statute were, tice of loss filed. though no claim brought within a notice two ute indeed, hanna, Cir., these & Co. v. sumably Act notice of loss pain Act, the of the as described tingent nia that should be anything Goethals, Cir., bill rier to within of able—within six fore, lost. As judge that there can be no cause no written proper of except erage. The commissioner should That statute If notice Affirmed. I concur in claim were or written notice of loss. goods treated permits recovery of v. International Mercantile M. separate and distinct Anchor like the bill otherwise of a lost or should a Consequently lading. the that upon the credits permissible put United States et so considered in of loss to them bags. a notice of time of the statutory only real as be held to have had made Line into in it does not seem to not different 296 F. 461. the result a result of within owner make enforced. Bank of Califor- provides for the That time have required passed, which deals with the Carriage for loss filing § “prima notice of Carriage of Goods the for it months fixing general provision the carrier I having the removal 1303(6) merely permitting suit Judge limitation for the car- Jackson, agree been, disadvantage the stat- year The General F. given. contract of loss or by Congress I by and in the allows suit facie” al., as well as no no bags things. of Goods a notice the failure to limit limit after the could did delivered time with the district lading. This (concurring). claim things, Apart the this foreclosed for suit even recovery be- liability in damage was and notice terms of the was which were as evidence but was, fixed agree filing of a average. respect was A. Russo of claim carriage me that Susque- opinion wheth- G. W. by giving Co., 2 goods there- denial to be when given con- pre that Sea Sea the is, at notify prompt- Libellant did to assert claimant do

ly alleged shortage, parties for the loss. but the claim no notice proof if disadvantage some as to certainly does duly given of loss has been no think, give any not, put I failure be category and same tice of claim into the lad scope legitimate bill of yond the shipper. ing agreement between carrier broad, general provision Nor does the in the Act there shall lessening by agreement provided” be no liability of *4 the carrier for negligence, fault or failure caused comply make the district with the statute judge’s phrase conclusion untenable. Act” in this merely setting contrary to the means in its cannot the Act and ably thought deprive the carrier liability” simply

“lessening such language there is no itself affirmatively permitting it. I would above stat- affirm the reasons

ed. PRODUCTS, FRUIT

HOLLY HILL ADDISON et al.

No. 10643.

Circuit Court of Fifth Circuit. 24, 1943.

June