The Guadeloupe

92 F. 670 | S.D.N.Y. | 1899

BROWN, District Judge,

On the 31st day of March, 1898, the French schooner La Guadeloupe, being then at Santos, Brazil, was chartered to E. Johnston <& Co. for the carriage of a cargo of coffee to New York. She was loaded by the charterers and left Santos on May 4, 1898. Shortly after, she met with a pampero, or hurricane, in which she lost her anchors, damaged her windlass, and was subjected to considerable strain, whereupon she returned to Santos for repairs. After an official survey there, and the making of all such repairs as were deemed necessary, she again sailed on the 31st day of Slay, and arrived in New York on the 18th of August. Upon discharging, considerable of the coffee was found damaged by sea water, to recover which damage the above libel was filed.

1. The libel charges unseaworthiness on sailing from- Santos, and bad stowage. The evidence shows that two beams of the main hatch had been cracked at some time previous to this voyage, and that under the direction of the Bureau Veritas repairs had been made and the beams strengthened by nailing slabs or planks across the cracks in or prior to December, 1896. Her classification had been kept up on repeated surveys, and had not expired at the time this voyage was made. I am of opinion that the evidence offered is sufficient to afford presumptive evidence of seaworthiness at the time the vessel first sailed from Santos, and that the extraordinary weather she soon after experienced, together with her subsequent voyage, is sufficient to account for the widening and increase of the cracks in the beams, and for the sinking of the deck, as they were found to exist after her discharge in New York.

2. The evidence does not show any established custom requiring in the ’tween-decks of a ship like this any wooden dunnage between the matting and the ceiling. The mode of stowage used in this vessel seems upon the evidence to have been equally common, and to be regarded as good and sufficient stowage.

It was doubtless the duty of the master to use diligence in making ¡ill necessary repairs at Santos to put the ship in a seaworthy condition, and for that purpose to make such surveys as were apparently needed in order to determine what repairs were necessary. This obligation, however, was not a warranty, but a duty to use due diligence only. An official survey as I have said was made, and everything was done by the master that was recommended. But ihe question whether the cargo should be removed, and t'o what extent, for the purpose of examining the interior of the ship, thereby incurring certain considerable expense, was a question for the exercise of the master’s judgment. There is nothing to indicate that he did not act fairly and in good faith; he consulted, as was proper, with the agent of the underwriters representing to a large extent the cargo interests, and they opposed any opening of the hatches, as no leak had yet been disclosed. If any error was committed in this respect, I think it was an error of judgment. It was an error, moreover, pertaining to the “management” of the ship; since the question arose after the voyage had commenced, at a port of distress, far from the home port, and away from any supervision by the owners, and was wholly subject to the master’s determination.

In procuring the surrey and doing the repairs, as the master acted with due and reasonable care and diligence, the case falls ■within the express pro vision of section 3 of the Harter act (2 Supp. Rev. St. p. 81). This renders it unnecessary to determine whether the injury to the deck occurred solely during the hurricane immediately before the repairs, or partly from that cause and partly from the subsequent additional strain upon the hatch beams, through the heavy weight of water taken aboard on the voyage to New XorK after the repairs were made.

The libel should be dismissed but without costs.