24 F.2d 702 | 2d Cir. | 1928
The statement of facts in this case by the District Judge is substantially unchallenged, and we accept it without repetition. We cannot, however, agree that section 16 of rule XI of the Rules and Regulations of the Board of Supervising Inspectors for the Great Lakes, applied to the Gerken. The cargo, of course, required no protection from water, being itself -a mixture of sand and water. The ship required no such protection, because she was altogether seaworthy, though her cargo boxes were filled with sand and water to the very scuppers. - The rule was plainly meant to apply only to eases where the cargo was in danger from water, else it would have been idle to require gaskets and tarpaulins. If it did not
There remains the question of whether the G-erken was seaworthy, independently of the rule. Merely to ship seas in heavy weather could not harm her; her boxes were watertight and already full of water. All that could happen was what did happen; the seas might be so violent as to shift the sand, or carry it out of the after box. However, at worst this would do no more than to give her a,list, or to put her by the head, or both. A ship need not be in perfect trim to be seaworthy, and in this ease we cannot tell how much of her list was due to the shift of cargo alone. The leak was in a forward compartment, and would in any event have put her down, and, once aleak, like all vessels, she became tender. It would be unwarranted to attribute her condition solely to the absence of hatch covers.
As soon as her pumps were found to be unable to keep down the leak, she was doomed; it was thereafter merely a question of time when she foundered. While it is probably true that she would have lived longer, if on an .even keel, no vessel is so perfectly trimmed as not to list when she fills. It is the merest speculation to suppose that the crew would not have had to take to the boats before the Maitland arrived, or, if not, that they could have been transferred without recourse to the boats. Again, the testimony of the claimant’s expert was without any basis whatever that the leak was due to her being by the head. She was already aleak before this occurred, and there is no reason whatever to conclude that the strains so set up still further opened her seams. They might, but it is only a possibility.
Seaworthiness involves no more than a reasonable fitness for the purposes of the voyage. To demand such foresight as would provide against the combination of events from which this ship foundered appears to us to insist upon more than reasonable preparation. She was sailing in summer upon inland waters for short trips, in the same rig, and fit as was usual for vessels in her trade. She encountered a storm of most unusual violence for the season, and developed a leak beyond her control. To say that her owners must have foreseen that, should all this happen, the seas would shift her cargo and aggravate the consequences of the leak, appears to us to set up an unduly severe standard of care.
The decree is reversed, so far as it holds the ship, at fault, and is otherwise affirmed.