33 F. 515 | S.D.N.Y. | 1887
The charter and the subcharter were both in the same form, which described the Rover as being “tight,' stanch, strong, and in every way fitted for the service.” By this clause of the charter, as well as by the legal implication of the bill 'of lading, the owners warranted the seaworthiness of the vessel; that is, that she was reasonably fit for the service in which she was to engage. This warranty extends to latent defects not discoverable by prior examination. . Either the ship or the freighter must bear such risks; under the warranty of seaworthiness, the law places this risk upon the ship and her owners. Talcot v. Insurance Co., 2 Johns. 124, 128; Work v. Leathers, 97 U. S. 379; The Lizzie W. Virden, 19 Blatchf. 340; Kopitoff v. Wilson, 1 Q. B. Div. 380; The Titania, 19 Fed. Rep. 101, 107; The Regulus, 18 Fed. Rep. 380; Sumner v. Caswell, 20 Fed. Rep. 249, 253. Exceptions in the bill of lading precisely similar to the exceptions in this case have been repeatedly held to apply only to matters arising upon the voyage, and not to override the express or implied warranty of seaworthiness, or to cover faults or defects, amounting to unseaworthiness, existing before the commencement of the voyage. Kopitoff v. Wilson, supra; Steel v. Steam-Ship Co., 3
There is no convincing evidence of negligence on the part of the officers or crew in the management of the ship, nor on the part of the owners in her equipment. The opinion of the witness Whitton, that the shaft was out of line, and that that was the cause of the break, is insufficient as against the evidence of many other witnesses. The case must therefore turn, in my judgment, wholly upon the question whether the break in the shaft was caused by such defects in the crank-shaft as amounted to unseaworthiness. Upon this point the case has been prosecuted upon each side with the most painstaking thoroughness and ability. A great amount of testimony has been produced, the broken parts of the shaft exhibited, and numerous experts examined on each side. The experts on the part of the libelant, while they all agree in condemning the shaft, do not altogether agree as to the nature or extent of the defect to be inferred from the appearances which the different parts of the surfaces of the broken shaft now present. The rupture was a transverse one across the forward arm of the crank, beginning about two inches below the highest point of the fillot of the shaft. The rupture upon the opposite side is at about the same level, but it does not pass directly across in a straight line. The line of fracturo, as it approaches the axis of the shaft, describes a curve upward on the one side and downward on the other, corresponding with a part of (he circumference of the shaft, and sloping down at the side, so as to present upon one side of the fracture a part of the section of a cone, or crescent, or semi-cup-shaped form, as variously described. Some of the experts on the part of the libelant express the confident opinion from this feature that the shaft had been, welded into the arm in the mode formerly practiced and called the “jumping on” process; by which the end of the shaft made conical in shape was welded into the concave surface of the arm. This crescent-shaped part of the ruptured surface, termed “Z,” as it now appears, is pretty uniform as regards smoothness, and the apparent texture and fiber of the iron. Of the flat portions of the ruptured surface, the part along the edge which is in front of the line of motion, termed “W,” is quite worn and smooth; while the part upon the opposite side, in rear of the. line ol‘ motion, termed “ Y,” is quite rough and jagged, the part between being intermediate in character. From the form and present appearance of the raptured surface, Z, the libelant’s witnesses in general infer that there must have been an original flaw or defect in the welding, which gradually extended over nearly the whole surface, Z. The defendant’s witnesses contend that no such inference is warranted.
■ It is difficult and embarrassing to determine the cause of this break amid such a conflict of opinion between eminent scientific and practical men. So far, however, as I am able to understand the action of mechanical forces, considering the fact that no material is absolutely perfect, or absolutely homogeneous, I do not think that the fact that the break commenced below the upper line of the fillet is proof of a faulty construction. The libelant’s witness says, as I understand, that the maximum strain is at about the middle of the fillet, and it is near that point that this rupture began. If the arm of the shaft was supposed to be placed in a horizontal position, and the shaft were made immovably fast, -and a weight were then placed upon the end of the crank, and increased until the arm must break somewhere, the greater leverage power exerted a little below the upper line of the fillet might well, as it seems to me, cause the break to occur there, near where Whitton puts the maximum ■strain—that is, below what Burr says is the weakest point; and in that ■case, the additional metal in the line of the immovable shaft would form a kind of supporting fulcrum, sufficient to turn the line of the rupturing surfaces in the direction it took; so that through the torsional and .transverse strains together, the- cleavage might naturally present the crescent shape of Z as the line of least resistance, which the defendant’s witnesses testify to, and "Whitton says is not uncommon. And a very slight
The crescent, or partly conical, shape of Z is, however, so even, that it very strongly suggests the “jumping-on” process, which Mr. Haswell and others so confidently affirmed must have been the mode in which the shaft was made; and I should have been disposed to concur in that view, were it not for the direct evidence on that point. I cannot disregard, however, the positive testimony of the respondent’s witnesses, who testify concerning the manufacture of the shaft, and show just how it was made. I do not see any sufficient reason to reject this commission. The testimony is as direct and positive as could possibly he expected in regard to the forging of a shaft 18 years ago. The witnesses state in detail the precise mode in which all the shafts were welded, which shows that- the “ jumping-on” process was not used in any shaft made at that time. Kennedy says expressly that “there was no welding to make the angle formed by the arm of the journal,” and the method given in detail shows that the arms of the crank were made by slotting them out of ingots welded together solid.
It is urged that the identity of the shaft broken with that built for the Rover in 1874 was not proved; and that the shaft broken might have been some other shaft put in since, and not the shaft testified to by the Glasgow witnesses. Neither side, it is true, put the precise question to any of the witnesses, whether the shaft broken was the identical shaft originally put into the Rover; nor is there any proof that the Rover her
Upon the testimony of the manufacturers, I must, therefore, hold it established that the “jumping-on” process was not used in the manufacture of this shaft;' and consequently that the theory of somemf the chief witnesses for the libelants cannot be sustained. The credit due to others also of the libelants’ experts' is to some extent weakened by their evident error as to the place where the break commenced, and as to the line of fracture. The small perpendicular cleavages shown near Y, and in the •interior edge of Z, are too slight to be regarded as flaws materially affecting the strength or sufficiency of the shaft.
At the time of this accident, the vessel had been 11 years in service, and in all kinds of weather. This break occurred in the Florida straits, a rough region, and in a violent gale, amid much pitching, and when the vessel was taking on board a good deal of water. The shaft was 25 per cent, larger than was required by the rules for a vessel of the small size of the Bover. A good shaft does not deteriorate with use. In a case of this kind, therefore, it is manifest that a shaft that has done good service for 11 years is presumably reasonably fit for service. Upon such proof, the presumption of fact is in favor of the shaft, and of'the seaworthiness of the vessel in that respect; and when the break-down is shown to have occurred in a violent gale, and in a heavy sea, the presumption must still remain in favor of the ship, and the breakage ascribed to the perils of the seas, unless the fact, not merely of some trifling defect, but of some material and serious flaw, is fairly established by the preponderance of proof as the cause of the accident. Lunt v. Insurance Co., 6 Fed. Rep. 562, 568, and cases there cited.
In the case of The Glenfruin, 10 Prob. Div. 103, the shaft broke down on a voyage on which “the ship had met with no more than ordinary weather,” and the break, it was found, was caused “by a very serious flaw,” and the ship was consequently held liable.
Taking all the evidence in this case together, I do not think the preponderance of proof establishes any material or serious flaw in this journal. Not only the testimony, but the shaft itself, proves careful inspection. Upon the journal attached to the opposite arm of the crank, a slight external flaw had been’ carefully examined and proved not to extend inward. Where the break occurred there was no external sign of
Considering, on the one hand, the doubtful and inconclusive result of all the evidence as to the fact of any such material and substantial defects in the welding as to make this shaft not reasonably fit for service; and, on the other hand, the long period of 11 years during which it had been in constant use, and the severe weather and the trying circumstances under wdiich it finally broke, I must hold that the presumption in favor of the sufficiency of the shaft arising from this long use still remains, and that the break resulted from the perils of the soa, rather than from unseaworthiness of the shaft.
The libel must, therefore, be dismissed, with costs.