82 F.2d 752 | 2d Cir. | 1936
This is an appeal by the respondents from a decree in the admiralty in a suit in personam against underwriters for general average contribution. The libellant is the owner of the ship, “Steel Scientist,” which went ashore in the Caribbean on the little islet of Farallón Sucio, a few miles off the coast of Panama and twenty-four miles from the Colon breakwater, on April 13, 1926. She was floated and most of the cargo eventually delivered in accordance with the bills of lading, after executing general average bonds for the expenses incident to the salvage. The underwriters of these bonds are defending this suit upon the ground that the strand was the result of negligent navigation and that although the bills of lading contained the “Jason Clause,” the ship was unseaworthy when she left New York on April 6, 1926, because her charts and light lists had not then been brought up to date. The judge held that the ship had proved her seaworthiness in this and all other respects, and it is conceded by both sides that Jhe strand was due to the negligent navigation of. the master. Since May v. Hamburg-Amerikanische Packetfahrt Aktiengesellschaft, 290 U.S. 333, 54 S.Ct. 162, 78 L.Ed. 348, it is not necessary in such situations that the ship’s defect should contribute to the loss; section three of the Harter Act (46 U.S.C.A. § 192) makes her fitness in every detail a condition upon her excuse for her negligence. In this case the controversy centres upon the
She was bound on a voyage around the world, and her first landfall after leaving New York was San Salvador, from which she would pass through the Windward Passage and so to Colon, the last few miles being along that part of the coast of Panama, off which lay the Farallones. Her charts and the three navigating manuals concededly made up a sufficient equipment, had they been corrected, and the British light list, as much corrected as it was possible to make it, stood at hand if the navigating officer wished it. The American light list could be brought up to date by pasting on the proper pages slips cut out from the “Notices to Mariners” which told the proper page where they should be put. Moreover, the slips were arranged topographically with proper territorial references, the Farallones being under the caption, “Panama,” and “Panama” in its proper geographical sequence between, for example, Nicaragua and Colombia. A mariner bound through the Caribbean could learn what changes to make in his charts and light list by at once turning to the pages which referred to those waters. It is true that there was an accumulation of these pamphlets on board when the ship left New York; said to amount to some nine hundred pages in all; but even so it would have taken only a few hours at most to cull out from them all notices affecting the waters between New York and Colon and to bring the charlj and the list up to date. As we have said, the American Pilot actually had been so corrected from its own supplement after leaving New York. The necessary information being thus at hand, the single question is whether it should all have been collated and put in its proper place before the voyage began. To an uninstructed landsman the answer seems obvious; it need not have been if before the ship reached the waters which the charts and the lists covered they could conveniently be brought up to date; if that was not done, it was due to the negligence of the crew during the voyage, not to faulty equipment, and the ship was not unseaworthy. An exception need be made only as to waters that the ship must enter át once or too soon for the necessary correction. Unless there is some preponderant competent nautical opinion to the contrary, we cannot therefore see why the “Steel Scientist” was not seaworthy when she sailed.
A large amount of expert testimony was in fact taken on this issue. Disregarding Cetti, the ship’s second officer, who was under fire, and Donnelly, the libellant’s marine superintendent, also an interested witness, there were in all thirteen navigators who spoke as experts, nine called by the ship, and four by the underwriters. Seven of the libelant’s nine said without qualification that it was enough to have the charts corrected by the time the ship reached the locus in quo. If this was true of charts, it was á fortiori true of light lists, for all the witnesses agreed that charts were the most important guides for navigation. Of the two other ship’s experts Halvorsen thought it was a matter for the master’s choice and he must therefore be counted with the other seven; but the ninth, Bertie Smith, considered that all corrections for the first leg should be made before the ship left port, and that on this voyage the first leg was from New York to Panama. He would not say absolutely that under no circumstances this might not be deferred to the first day or so out in cases where information comes in on the last day, but on the whole he was with the underwriters. Of their four witnesses two, Jessop and Sheridan, were quite positive that all corrections should be made before sailing, and though McCaw and Sheppard
The evidence, drawn upon the rule-books of steamship lines and from text-books, also seems to us inconclusive. All these do emphasize the importance of having charts and light lists “kept up to date”; and obviously that is an important admonition; when the time comes to look at a chart or a list, it must be in order, for it is then too late to correct it,' or to look elsewhere. But we are not satisfied that the lines mean to require this to be done before the ship sails, except in one or two instances. Lecky’s Wrinkles in Practical Navigation (page 108), declares that the British Board of Trade in 1912 had issued a notice that charts must be corrected to the time of sailing when taken on board, and Lloyd's Calendars for 1924 and 1931, seem to contemplate the same thing. But these lay down the absolute doctrine which, as we have said, seems to us an unnecessary counsel of perfection and which we. are not disposed to enforce. On the contrary we believe that a ship is well found, if she has the proper documents on board, and if when she sails, such of her charts and light lists are corrected as cover the waters she will enter before her officers will have ready opportunity to correct them. In the case at bar the possibility that the seven days before reaching Colon might be so occupied as to leave no opportunity to the second officer to do this work, seems to us very remote; and besides, it was desirable, if safe, to wait till the last moment before going to the Hydro-graphic Office, so as to get the latest information. The ship was not likely to encounter serious weather or to be hard pressed; spring had fully come, the hurricane season was long past, the ship would pass San Salvador four days before she reached the Canal. It is of course true that section three of the Harter Act (46 U.S.C.A. § 192) is a privilege not granted to other principals of negligent servants, and it has been somewhat jealously construed. The Irrawaddy, 171 U.S. 187, 195, 196, 18 S.Ct. 831, 43 L.Ed. 130; The Germanic, 124 F. 1, 5 (C.C.A.2) ; Benner Line v. Pendleton, 217 F. 497, 505 (C.C.A.2); The Fort Morgan, 284 F. 1, 4 (C.C.A.4). Still the question is of wider importance than the immediate situation before us; it will affect other legal transactions as well and there is no reason why we should hold ship owners to refinements of care which go beyond the practical wisdom of the calling.
Finally the argument is made that in any event the ship was not seaworthy on her earlier voyage because then at least, though she passed through the same waters, she did not even have on board the notices that a new light was to be set on Farallón Sucio. We cannot understand the force of this argument. What determined her fitness at that time, did not determine it later. She may have been unseaworthy- without the preparatory notices on board, and
Decree affirmed.
