20 F.2d 304 | 2d Cir. | 1927
(after stating the facts as above). The evidence sustains the finding of the District Court that the Baxter was unseaworthy when she left New Orleans, and that such fact could have been discovered by duo diligence. The petition to limit liability was properly denied. For the consequences of the breach of warranty of seaworthiness the ship and petitioner are liable.
The master of the Baxter did not leave New Orleans with the knowledge that he would have to make a port for repairs, but honestly thought ho could make the trip in safety, and tried unsuccessfully so to do. The leak was not discovered until after the ship had left New Orleans and anchored at Port Eads, and it was the condition of the ship and intention of her master, when she left New Orleans, and not when she left Port Eads, that is controlling.
If going into Key West or Havana for repairs constituted voluntary deviation, then returning to New Orleans from Port Eads for repairs would have constituted voluntary deviation, and when the ship broke ground at Port Eads she would have had no option but to deviate. To oblige a master of a ship to choose between such alternatives has been condemned: Kish v. Taylor, [1912] A. C. 604, 614.
Even when the ship broke ground at Port Eads, the master was not certain that he would
In the last-cited case we followed the House of Lords in. Kish v. Taylor, supra, which was a case of unseaworthiness from overloading, and in which case it was held that it is the presence of the peril, and not its cause, which determines the character of the deviation. The Circuit Court of Appeals in the Fourth Circuit also followed Kish v. Taylor, supra, in The Turret Crown, 284 F. 439.
This holding is not inconsistent with the decision of the Supreme Court in The Willdomino, 272 U. S. 718, 47 S. Ct. 261, 71 L. Ed.-, 1927 A. M. C. 129, and the House of Lords in United States' Shipping Board v. Bunge, [1925] 31 Com. Cas. 118, in which cases the deviations were caused by the ships leaving port with insufficient fuel.’
The distinction i§ plain. If the circumstances under which the ship leaves port are such that 'it must be known that she will be compelled to deviate, e. g., a shortage of fuel, the deviation is voluntary. If, however, the ship leaves port unseaworthy, which includes one badly stowed, even if it was known, she does not voluntarily deviate if she seeks a port of refuge. We therefore hold that the schooner did not voluntarily deviate when she sought a port of refuge at Key West or Havana.
The circumstances under which the Baxter put into Key West and Havana were not caused by gross negligence, as that term is used in the opinion in The Willdomino, supra, because it was not plain when she left New Orleans that deviation was inevitable.
The delay of the Baxter at Havana was a result of her unseaworthiness, but a breach'of the covenant of seaworthiness on sailing did not require the owner to discontinue further performance of the contract of affreightment. All necessary repairs were made at Havana as fast as circumstances would allow, and the ship was seaworthy and ready to proceed on her voyage on January 14,1920. The embargo was not the result of the unseaworthiness of the ship, and for it she was not responsible.
The embargo was an unusual exercise of power by the government, a permanent restraint, making the sailing of the ship illegal, and therefore impossible, and rendering that illegal which had previously been legal. Allanwilde Corp. v. Vacuum Oil Co., 248 U. S. 377, 39 S. Ct. 147, 62 L. Ed. 312, 3 A. L. R. 15; Int. Paper Co. v. The Gracie D. Chambers, 248 U. S. 387, 39 S. Ct. 149, 63 L. Ed. 318; Standard Varnish Works v. The Bris, 248 U. S. 392, 39 S. Ct. 150, 63 L. Ed. 321.
The contract to carry the cargo to Bordeaux, which, after making the repairs, the ship was ready to perform, was thus by the embargo rendered illegal and impossible of further performance, entirely independent of any exception or express agreement of the parties. Therefore the provisions of the bill of lading are effective.
No damages can be allowed against the ship or petitioner because of the embargo, nor can there be any recovery of prepaid freight; but the ship and petitioner are, under the terms of the bill of lading, liable only for the actual damage to the malt and starch, and for the difference between the value of the goods, had they arrived at Bordeaux on a straight voyage leaving New Orleans on August 16, 1917, and on a voyage leaving Havana on January 14, 1918.
The decree is reversed, with costs, and with direction to the District Court to enter an interlocutory decree in accordance with this opinion.
On motion for rehearing and reargument.
In our opinion we held the Baxter and the petitioner were liable for the consequences of the breach of warranty of seaworthiness, and when we mentioned starch and malt we did not mean to exclude damages to tobacco, general average payments, nor any other damages due to the Baxter’s unseaworthiness. The costs awarded were only the costs in this court.
While the award of costs in the court below, was reversed as a part of the decree, we made no award of the costs in that court. When a final decree is entered by the District Court, the costs will be awarded by that court as it may determine upon the facts.
We considered and determined the questions sought to be reargued, as to the retention of prepaid freight, frustration, deviation, and measure of damages, and see no reason for granting a rehearing and reargument.
Motion denied.
