196 F. 165 | E.D. Pa. | 1912
It is charged) that the ship was at fault in two particulars: First, because she sailed from New York with irregular clearance papers. The details are not essential. It is agreed that one of her papers contained an erroneous statement, and that this required her to gO' from Tanamo to Nipe before she could clear for the return voyage. This retarded the delivery of the fruit by nearly a day, but I am satisfied that the mistake in the paper was not the fault of the ship, but of the broker in New York who was acting for the charterer’s agent, the Atlantic Fruit Company, and was responsible for the proper clearing of the vessel. There is a conflict of evidence on this subject, but I find the fact in favor of the ship. Evidently the broker, if he could have contradicted the captain, would have been a most important witness on behalf of the libelant; but he was not called, and the libelant cannot complain if unfavorable inferences are drawn from his unexplained absence.
The second, and the principal, ground of complaint is, because the ship drew her fires and cleaned her boilers immediately upon her arrival at Tanamo, thereby delaying the return voyage by several hours. It is said that this act was prejudicial for either of two reasons: (1) If steam had been kept up, the ship could have gone to Nipe at once before loading began, and could have returned in a few hours, thereby saving the time that was afterwards consumed at Nipe owing to the fact that she arrived at that port on a Sunday; but (2) even if the necessary detour to Nipe had been deferred; until the fruit had been loaded, it is urged that, if the ship had kept steam in her boilers, she could have left Tanamo at least one-half day before she actually started. It is true that either of these courses could have been pursued if the fires had been maintained, but it still remains to be decided whether the ship was at fault in drawing the fires and in taking the necessary time to clean her boilers. No complaint is made that the process was needlessly slow; on the contrary, it appears to have been unusually rapid. The only objection is that it should not have been undertaken at all. That, of course, depends on the circumstances. Boilers will become dirty, and they must sometimes be cleaned! if they are to maintain their efficiency. This vessel was bound to the utmost dispatch, and she was also obliged to keep her machinery in such condition that she could perform her obligations under the charter party. Whether a Danish law requires the boilers of a Danish steamship to be cleaned after use during 1,000 hours was not proved by the proper, kind of evidence; but it does appear clearly that the captain believed that such a law existed, and there is no doubt that such belief influenced him decidedly in his repeated insistence that the boilers must receive attention. It is not denied that he spoke strongly upon this subject to the charterer when he was in Cuba upon the voyage immediately preceding, and (although the fact is disputed) I find it to be true that the charterer gave him a written communication upon this subject addressed to the firm’s agent in New York. This paper was evidently of much importance, but apparently the charterer made
These being the only faults complained of, it follows that the libel-' ant has no ground of complaint against the ship, even if an action in rem against the vessel can be sustained.
A decree may be entered dismissing the libel, with costs.