135 F. 424 | E.D. Pa. | 1905
This action is brought to recover from the owner of cargo its proper contribution toward a general average loss sustained in June, 1900, during a voyage from Java to the Delaware Breakwater. The libelant is master of the steamship Adriático, an Austro-Hungarian vessel, which was chartered in April, 1900, to carry a cargo of sugar from certain ports on the north coast of Java to the Delaware Breakwater, this being one of the possible points of destination in Europe and America that were named in the charter party. On June 24 she finished loading at the port of Samarang, and began her voyage to this country in calm and clear weather about half past 11 in the night of that day. She was drawing 22 feet 8 inches forward and 24 feet aft, and, at a quarter to 5 in the morning of June 25, when she had proceeded about 30 miles on her way, she ran upon the Bapang, or Korea, reef, which is a small, unmarked coral rock about 13 yards in circumference, hidden under 14 feet of water. There is plenty of depth all around it. Immediate efforts were made to get the ship off by reversing the engines, and afterwards by the use of a hawser and other lines, an anchor and the steam winch, and by filling a tank at the stern in order to raise the bow. The vessel could not be moved, however, and, as speedy assistance could not be obtained, and the ship was in a dangerous position if bad weather should come on 100 tons of coal were jettisoned, and afterwards 100 baskets of sugar, a part of the cargo. Another effort that day to relieve the vessel was also ineffective, but about 8 o’clock in the morning of the 26th she was finally pulled off the rock, losing the anchor and lines and sustaining other damage, which aggregated a considerable amount, and forms the basis of the present claim. The loss was adjusted after the vessel arrived in America, and I do not understand the accuracy of the computation to be in dispute. The controversy has to do wholly with the question of the ship’s negligence, the respondent denying liability in toto on the ground that the stranding was due to negligent navigation, and that the loss is therefore not the subject of general average.
It is undoubtedly true, as was decided in The Irrawaddy, 171 U. S. 189, 18 Sup. Ct. 832, 43 L. Ed. 131, that “the owner of a ship is not entitled to a general average contribution where the loss was occasioned by the fault of the master or crew.” And the rule is declared to be “founded on the principle that no one can make a claim for general average contribution if the danger, to avert which the sacrifice was made, has arisen from the fault of the claimant, or of some one for whose acts the claimant has made himself, or is made by law, responsible to the co-contributors.” It is necessary, therefore, to inquire whether the master or some other officer of the ship was negligent in directing the navigation, and thus caused the stranding and the losses that are complained of. The vessel was of steel, only a few months old, ■of nearly 2,600 tons net register, was properly manned, equipped, and supplied when she left Samarang, and was then in a thoroughly seaworthy condition. The master was a man of 43 years’ experience at sea, 27 years in command of sailing vessels and 10 years in command ■of steamships, and had been in these waters twice before, although this was his first voyage to the island of Java. I see no reason to doubt
In this state of the proof it is inevitable, I think, to reject the master’s explanation, and accept the much more probable theory that by some error or fault of the first mate the northwest course was carried too far, so that the second course took the vessel directly upon the reef. She certainly did strike the reef, and this theory accounts for that fact much more naturally than any other, and it does not conflict with any of the testimony in the case. The important witnesses for the libelant assume, in effect, that the master’s instructions were carried out, although the essential and preliminary inquiry upon that subject is not assisted by a word of direct evidence, while the probabilities point, I think, in the opposite direction. If I have drawn the correct inference from the testimony and the lack of testimony in the case, it is unnecessary to pay any attention to the controversy concerning the precise place of anchorage at Samarang, the possible variation of the ship’s compass, and the question whether the course laid by the master was true or magnetic.
The libel must be dismissed.