274 F. 873 | E.D.N.Y | 1921
The Lake Allen was a vessel built at Detroit in the year 1918, brought through the Canal, refitted at Boston, where she was in dry dock, and the outside of her hull inspected and painted. She had made two or more voyages during the winter of 1918-19 before the voyage in question. She was under charter to the respondent, the Panama Railroad Company, and on the voyage in question experienced what apparently was severe, but not extraordinarily rough, weather. During the voyage, some water was found in the various holds, which, according to the captain, amounted to five or six inches each watch, but which was pumped out with a few minutes’ pumping; and the testimony also shows that the pumps sucked when the level of the water in the bilges was reduced to about three inches.
After some severe weather south of Cape Harteras, water was discovered in No. 3 hold, to a depth of some three feet. The discovery was also made that the pump in this hold had become stopped through cotton waste in the valve or intake, which was removed and the water pumped out. The presence of this water had not been previously ascertained, because the waste in the valve or intake caused the pump to fail to act, and the engineer supposed that the pump was sucking with no water present. The finding of the water caused the officers of the vessel to examine her. Upon reaching New York she was put in
According to the officers of the vessel, these rivets had worked loose under the strain of the weather encountered on the trip north. According to the expert produced by the libelant, these rivets had been improperly driven when the vessel was constructed, and had escaped detection when the vessel was inspected, later working loose or giving way under the vibration of the engines. This expert witness testifies that the defective rivets were so distributed and that the nature of their defects was sttch that strain from severe weather could not alone produce the result in question, as their condition was not caused by ilie mere strain or working of the plates, but rather through the vibration as it affected the individual rivet.
The leakage having resulted, therefore, from the structural defects, which manifested themselves under ordinary conditions of severe weather, it cannot be held that the damage was due to perils of the sea, within the exemptions of section 3 of the Harter Act (Comp. St, §• 8031), unless due care to render her seaworthy be shown.
The vessel was unseaworthy, and the sole issue left is determination of responsibility therefor. In other words, has the owner or carrier (charterer) avoided liability by the stipulation that no liability shall resit It if due diligence has been used to make the vessel seaworthy? The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181; The Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65. In The Thessaloniki (C. C. A.) 267 Fed. 67, and The Ontario (D. C.) 106 Fed. 324, it was held that certificates of examination and proof of inspection and repair were sufficient to show due diligence, etc., and thus the presumption of unseaworthiness was rebutted. As a consequence, the accident was held due to a peril of the sea. In The Aggi (D. C.) 93 Fed. 484, The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, 38 L. Ed. 688, and Compagnie Maritime Francaise v. Meyer et al., 248 Fed. 881, 160 C. C. A. 639, casual inspections were held insufficient.
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