The Royal Sceptre, 187 F. 224

187 F. 224 | S.D.N.Y. | 1911

HOUGH, District Judge

-(after stating the facts as above). [1] Under the circumstances of this affreightment, the owner of the Royal Sceptre was not a common carrier, but a bailee to transport as a private carrier for hire. The Fri, 154 Fed. 338, 83 C. C. A. 205.

By the charter itself, the parties to this litigation agreed that:

“The ship is to be in no way liable for any consequences of * * * perils of the sea * * * collisions, stranding, ana/or other accidents or errors of navigation even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners.”

It may be assumed with the claimant that the quoted charter provision delimits the obligations of the ship, in so far as it goes, when reasonably interpreted. If therefore the proximate cause of this loss be a peril of the sea (or river), a stranding, an error of the pilot or negligence of the master, it may be assumed that libelant cannot recover; for, without any written limitation of liability, all that the bailor-libelant could require or expect from the bailee-claimant was the use of ordinary care and skill (Sumner v. Caswell [D. C.] 20 Fed. 251, and cases cited), and that expectation has been (in part) bargained away for a consideration presumably expressed in the rate of charter hire.

In view, therefore, of the foregoing, and of the further charter provision that “deck load (was to be) at owner’s option and at charterer’s risk,” some ground of liability must be discovered and substantiated, other than the negligence, of any one concerned in managing or navigating the vessel. Such reason for recoveiy is assigned in the unseaworthiness of the ship (i. e., unfitness -for the stage of voyage), when the disaster occurred, coupled with the assertion that damage was done solely by reason of such unseaworthiness. The alleged causes of unseaworthiness, unfitness, and disaster are all contained in the statement that the Royal Sceptre on leaving Borghi with a full cargo with a deck load of 800 tons and more, and 11 feet high and with empty ballast tanks, was inherently unstable, and so much so that she was likely to do what she did when impelled by such expected events as putting her rudder hard over, or grazing a sand bank.

[21 If this be true, the ship must respond, and it makes no difference that in one sense of the.words the master was negligent in so loading his vessel that there resulted instability amounting to unseaworthiness. The somewhat scholastic answer to such argument is that negligently causing an unseaworthiness existing at the commencement of a voyage (or the beginning of any stage thereof) is an act antecedent to navigation, and not protected against by the charter party clause first above quoted. The more forceful answer is that even a bailee for hire who agrees in executing his bailment to carry goods on his ship impliedly warrants that ship’s seaworthiness, and explicitly warrants the same by the familiar words beginning most charters (including the one in suit), and describing the carrier’s vessel as “tight, staunch and strong and in every way fitted for the intended voyage.” The Europa, Prob. [1908] 84, citing Carver’s Carriage by Sea (5th Ed.) § 17; Sumner v. Caswell (D. C.) 20 Fed. 249.

Nor in view of the nature of the warranty of seaworthiness, and the imperative necessity of stringently enforcing it in the interests of all marine business, is it material that to ascertain with exactness the range of stability of any given vessel is a matter of some delicacy and one demanding scientific knowledge. Let it be admitted that such “special technical knowledge is not to be attributed to the master” (The Oneida [D. C.] 108 Fed., note, p. 889), yet that fact only renders it more obligatory upon owners to provide ships which will be stable when laden with such degree of technical or scientific information as competent shipmasters may be presumed to possess.

[3] This leads to an inquiry into the actual condition of the Royal Sceptre, at the time of disaster, a condition confessedly the same as when she left Borghi. The facts regarding her structure and lading have been put before three experts, one of them her designer. They all agree in principle, and with differences too slight to affect decision I think they agree in results. Such differences as exist arise from differing assumptions as to weight and homogeneity of deck load. From their testimony the following conclusions are drawn: The steamer’s range of stability did not exceed 46 degrees — that is, she could careen 23 degrees (at most) and retain tendency to return to an upright position — with a list of 10 degrees her righting lever was at its maximum, being .064 of a foot with a righting moment of 565 foot tons, that is, the total force then tending to right her or (same thing) the total force then to be overcome to pull her further over was as last stated. Her curve of stability as calculated by all the experts shows this righting moment rapidly diminishing as the limit of stability was approached. For small inclinations she was very tender, and so constructed that a list of about four degrees would bring her "harbour deck” edge under water, which means that a “turret” vessel is shaped (roughly) amidships like a long box, with a smaller but similarly shaped box on. top of it, the top of the smaller box being the “turret deck,” and the projections of the larger box on each side of the smaller one being the “harbour decks.” The effect of submerging the harbour deck edge was to diminish resistance to inclination. At 23 degrees (at most) all righting moment vanished, and the result of natural forces was to produce a tendency toward capsizing, which continued until 37 degrees were reached, when the righting moment reappeared and continued until about 81 degrees of inclination, when, if the pressure continued, ■ complete capsize was accomplished. This condition is to be compared with her designer’s assertion that in sea trim her range of stability should be nearly 100 degrees on each side of vertical.

Applying these calculations to the proven 'facts, and remembering that whatever bottom the steamer touched tended slightly to careen her to starboard, and that at her speed and in the current her starboard helm had the same effect, the conclusion is irresistible that she was too top-heavy to recover from the careening effect of one or both of two causes each trivial and each reasonably to be considered probable before the voyage began. Much time has been spent in examining into the mathematical or physical possibilities of this ship. The results cannot be asserted with absolute accuracy, yet they assist in holding (as is now done) that a vessel is unseaworthy which begins even a river voyage with a range of stability of about one-fourth that calculated for her at sea with a rapidly diminishing righting moment after one-tenth of her calculated range had been passed, which encountered nothing that ought normally to careen her to any pronounced extent, and which .did as matter of fact list 70 degrees in half a minute. The result stated seems to me to be reached on much clearer testimony than was available in The Oneida, supra, or The Whitlieburn (D. C.) 89 Fed. 526, and without calling in the aid of presumptions against the steamer as was done in The Oneida on appeal (128 Fed. 687, 63 C. C. A. 239).

[4] But one further contention requires comment. It is urged that, since the charterer agreed to assume,th"e risk of deck stowage, there can be no recovery for loss of cargo so laden; and for this proposition Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58, is relied on.

Pressed to its logical limit, the untenable nature of the argument seems very plain; for if a vessel can become unseaworthy by piling up deck load, without any liability to the owner of the same, she may capsize as soon as her fasts are thrown off. Deck cargo at shipper’s risk does not mean such absolute surrender of all rights. The risk assumed presupposes proper loading for deck stowage and a seaworthy ship. It is not thought that Lawrence v. Minturn asserts any doctrine opposed to this. It speaks only of a jettison; while, if even a jettison be rendered necessary by unseaworthiness existing at commencement of voyage, the ship is liable, as is shown by the summary of decisions given in Compania De Navigacion la Flecha v. Brauer, 168 U. S. at 120-121, 18 Sup. Ct. 12, 42 L. Ed. 398. See, also, Higgins v. Watson, Fed. Cas. No. 6,470, and Talbot v. Wakeman, Fed. Cas. No. 13,731 (both decisions of Betts, J., in this court), also Barker v. Swallow (D. C.) 44 Fed. 771.

■Decree for libelant, with costs.