Bursley v. The Marlborough

Butler, J. The libelant, Ira Bursley, and Galbraith, Pembrook & Co., owners of the Marlborough, entered into a charter-party, dated London, April 16, 1889, whereby they agreed that the Marlborough should go to Iloilo, and there load from the libelant’s freighters a full cargo of dry sugar, and therewith proceed to the Delaware break-water for orders; the cargo to be delivered at Boston, New York, or Philadelphia, as ordered, on payment of the specified freight. It was further agreed that “the act of God, perils of the sea, * * * and other accidents of navigation, * * * even where occasioned by the negligence, default, or error of judgment of the pilot, master, mariners, or other servants of the ship-owners,” shall be excepted from the respondents’ risk. The voyage thus undertaken led from Iloilo, (Philippine islands,) in the Pacific ocean; thence through the China sea to Singapore; across the North Indian ocean to Colombo; across the same ocean to Aden, near the south' entrance of the Red sea; through this sea to Suez; and through the Suez canal and Mediterranean to Gibraltar, and thence across the Atlantic ocean. In the course of it steam-vessels usually stop for fuel and other necessaries at the several places named. The vessel went to Iloilo, and in due course took on a cargo of sugar, and started on her voyage. She reached Colombo, nearly 3,000 miles distant, without unusual incident. Rough weather was encountered during several days, but no rougher, probably, than is common to the locality and season. On her way from this place to Aden, and when from six to seven hundred miles distant from the latter, she encountered exceptionally bad weather, a hurricane or cyclone of great violence, coming from the south-west and west, raising a rapid current, directly in her front, of such force as not only to arrest her progress, but to drive her many miles back. After continuing her efforts to get forward until the supply 669 of coal had run short, the rudder damaged, and the forecastle decks sprung and opened so as to admit large quantities of water, she turned about, and ran with the current to Bombay, the nearest available port. To reach this place it became necessary to use all available wood-work of the vessel, and a large quantity — about 1,100 bags — of the cargo, for fuel. On arriving there, a survey of the vessel and cargo was called for and made. By order of the surveyors a part of the cargo was unloaded, and the vessel put on dry-dock. Examinations showed that the decks were strained and injured, the rudder and propeller damaged, and other injuries sustained. After considering the advisability of repairing the deck by renewing the parts injured or caulking and sheathing, the latter was adopted. A part of the cargo was so damaged that the surveyors recommended its sale. A smaller part was, however, in such condition that the health officer of the port ordered its destruction. The balance (about 360 bags) was sold. Upon being repaired, the vessel went into dock to reload. While lying there she was again injured by rubbing against a projection of masonry at one side of the dock, several feet below the water’s surface. A leak was thus caused, which required the vessel to bo put hack in the dry-dock and again repaired. The additional handling of cargo thus made necessary (and possibly some further wetting) increased the damage. After the injury was repaired, and the vessel reloaded, she started for Aden. On the way much rough weather was encountered, though not more or rougher, probably, than should have been expected; and the decks again opened and leaked. After entering the lied sea she ran upon a coral reef in the dark, (at night,) a few miles off Mocha, and for some lime was in very serious danger. She consequently jettisoned a pari other cargo, (about 340 bags,) and subsequently sold, at Mocha, nearly 1,400 more, which had been taken off by lighters, sent from that place, while she was aground. On getting free, and after proceeding to within a few miles of Suez, she again grounded upon a sand-bar, in the night; and some further damage was sustained by the cargo through the escape of water from the .bilges into the after-hold; the sluices being open to admit of pumping, and the vessel’s bow thrown up by the bar. On getting free and reaching Suez, to which place a part of the cargo had been carried while she was last aground, it ivas deemed prudent (after another survey) to make sale of about 2,300 bags more. The vessel was recaulked at this place, under more favorable circumstances than at Bombay, after which she proceeded on her voyage, and reached the Delaware break-water without further accident, delivering the balance of her cargo in good condition. The libelant demands compensation on the grounds, substantially, that the vessel was imseaworthy when started; that she was carelessly navigated and handled; and that a part of her cargo was unnecessarily and wrongfully sacrificed by jettison and sale. After a full examination of the case, I am of opinion that neither of the charges is sustained. The questions presented are all, substantially, of fact, and must be determined by the evidence. This I have read carefully and repeatedly without finding anything in it irreconcilable with the belief that the vessel was seaworthy when started, and was kept in this condition there 670 after, or as near it as was practicable; that she was carefully navigated and handled; and that the jettison and sales of the cargo were justified by the circumstances under which they were made. Of course the testimony may be so culled, parts detached and read separately, as to lend an appearance of support to these charges. Taking the entire statements of the witnesses, however, and applying an impartial judgment, I do not think anything can be found to sustain the libel. The loss of the cargo is, I believe, properly ascribable to perils of the sea, of which the libelant assumed all risk. A written discussion of the questions and analysis of the testimony would require much time and space, and afford no corresponding advantage. A few general observations on the specific charges will express all I desire to add. What constitutes seaworthiness is not, I think, open to controversy. The vessel must be reasonably safe for the service and voyage undertaken. There are, however, degrees of safety; and she need not be the safest. A new vessel, of the highest order of construction, is safer than one several years old, and of a lower order of workmanship. Yet the latter may be, and, if in good condition, is, seaworthy. A majority of vessels in the merchant service, employed on the most dangerous voyages, are of the latter description. The vessel, however, must not only be seaworthy when entering upon the voyage, but must, in so far as is reasonably practicable, be kept in this condition throughout its course. The Marlborough was built of iron in 1877, was kept in good repair, and, when started on this voyage, was rated in the highest class of English iron steamers on Lloyd’s Register. The specifications on which the charge of unseaworthiness rests are, substantially, that the decks were worn out; that she was overloaded; that she was not sufficiently provided with coal; and that the decks should have been renewed at Bombay, if not before starting. The decks seem to have been in good condition when she left Iloilo. Notwithstanding the rough weather encountered for several daj^s on the passage (covering nearly 3,000 miles) to Colombo, which drove the water over her, there was no leakage; and after the leaks were recaulked at Ceylon, Avhere the Avork could be well done, she crossed the Mediterranean and the Atlantic, — a distance of more than 8,000 miles, — with a good deal of rough weather, in safety. I do not attach serious importance to the fact that the decks had needed repair a year or more before the vessel started. They had been repaired, and subsequently. Nor do I attach serious importance to the fact that they opened and leaked after the vessel passed Colombo, and had been subjected for many days to the severe Aveather of the monsoon. Whether decks be new or old, the pitching and twisting and pounding of the vessel in such Aveather will be likely to cause leakage. Such a result cannot, therefore, under such circumstances, be accounted evidence of unseaworthiness, even when the tempestuous Aveather is anticipated at starting. Some damage to cargo, under these circumstances, is probable, if not unavoidable. It is not clear, however, that any damage was sustained from leakage until after the hurricane or cyclone was encountered, beyond Point De Galle. The weather through Avhich the vessel then passed is amply sufficient to account for the crippled condition in which 671 she readied Bombay, without the aid of any inference of nnseaworthiny>; at starting. But for this storm, I find nothing to justify belief that she would not have continued her course, and reached Aden safely, with little or no loss to cargo. In that case the question of seaworthiness could not have arisen, and what is now said of her decks, overloading, insufficiency of fuel, would not have been thought of. It is inspired by the desire to find some other cause of disaster than the storm,- — a sufficient, the most obvious, cause, — and thus to charge the vessel with loss, which otherwise the libelant must bear. Was she restored to a seaworthy condition, or proper efforts made to restore her, at Bombay? Everything the surveyors recommended was done; and this, in their judgment, and that of the officers, was all the safety of the vessel and cargo required. It appears that the owners did not want the deck renewed, but it does not appear that the surveyors were influenced by this, or considered renewal necessary. One of the surveyors, Mr. (JJa.rk, represented the cargo as agent of the underwriters, and was therefore interested in securing a safe carriage. II, is urged that the decks should have been renewed here at least. If they'had been, it is not certain, nor very probably, that they would have withstood the storm and strain any better. It is quite likely the seams would have opened, and the caulking worked out, under the pitching and twisting to which the vessel was subjected again, on this part of the voyage. The circumstances under which she was repaired at Bombay were unfavorable to the work. The constant and unprecedented rain rendered the sheathing and caulking imperfect; but not more so, probably, than it would have rendered the renewed decks, if this method of repair had been adopted. 1 do not find any support for the allegation of overloading. The Plimpsol mark on the vessel — the guide in this respect — was above the water. Nor do I find anything to support the allegation of insufficient coa!. The quantify taken at Colombo (ami the quality) was equal to this usual supply for a passage to Aden. The hunkers were lull; and the amount would have been more than sufficient, but for the unexpected tempests encountered after passing Point Do Galle. The clogging of a forepeak pipe resulted from the loss of its rose, and this loss occurred after Uie vessel started on her voyage;. Its displacement is doubtless attributable, as Mr. Arnott says, to the dashing about of loosened gear during the storm. The dogging of the pipe could not, therefore, be guarded against. The sluices do not appear to have been unnecessarily open. When open at night, as the witnesses say, it was to admit of pumping. Those uncovered at the time of grounding near Buez wore, the witnesses testify, open for this purpose. The specifications of negligence and improper conduct (not connected with the question of seaworthiness) are, substantially, the consumption of sugar for fuel, improper docking at Bombay, straining in the Bod sea, and jettison and sale of cargo. The first has been sufficiently remarked upon in considering the question of seaworthiness. The run to Bombay, and the consumption of sugar to enable the vessel to make it, seem clearly to have been necessities of the situation, which could not be foreseen or avoided. Persistence in the effort to pass through 672 the storm to Aden would have seriously imperiled both ship and cargo, even had the supply of coal been double what it was. A supply for the run to Bombay could not be expected. The charge of improper docking does not seem to find any support in the evidence. The vessel was ordered in where she went by the superintendent of docks, and was therefore fully justified in believing that she could safely lie there. The obstructions against which she chafed were hidden several feet below the water’s surface. She cannot be held to the duty of inquiring for such sources of danger. To so hold would clearly be unreasonable; and, without inquiry, she could not discover them. The injury was repaired as speedily as possible. The stranding in the Red sea is attributable, I believe, to a sudden and unexpected starting of an unusual current under the influence of wind or change of temperature, such as frequently occurs in that locality. Stranding is not uncommon there; and when such unusual currents are encountered at night it cannot, probably, be avoided. The vessel, as the witnesses testified, is gradually and imperceptibly carried off her course, and, before the fact is discovered, runs aground. It is improbable that sounding would reveal the presence of a perpendicular reef projecting in the midst of deep water. The vessel would be likely to strike while the lead showed ample depth. Soundings are not, therefore, commonly resorted to in that locality. The existence and situation of the reef is marked on the chart, and was known to the master. This, however, afforded him no protection under the circumstances. He thought, as he testifies, he was on the proper course to avoid it, and at a safe distance; and he was, I think, justified in so believing. Substantially the same may be said of the grounding near Suez. The jettison and sales of cargo seemed to have been justified by the circumstances. The sales were principally recommended by surveys. A proper regard for the libelant’s interest seemed to require them, and I do not see how they could have been made more advantageously. A jettison also appeared to be necessary at the time, however it may appear in the light of subsequent events. The entire cargo, as well as the vessel, was in imminent danger. A sudden blow, or roughening of the sea, such as might be expected at any moment, would probably have sent both to the bottom. It was important, therefore, to get afloat as soon as possible. The chances of obtaining relief from Mocha (in the light of all the master knew at the time) did not justify delay in looking or waiting for it. When relief came from that quarter next day it was neither efficient nor reliable. The jettison seemed to be a plain necessity. Had the master neglected this means of relief, and the ship and the cargo been lost, he might, I think, justly be accused of failing in duty. The important questions of law raised upon the “ negligence clause ” of the charter-party need not be considered. In this view of the facts theyure not reached. The libel must therefore be dismissed, except so far as respects the subject of average, which is not ready for hearing, and a decree may be prepared accordingly.