May v. HAMBURG-AMERIKANISCHE PACKETFAHRT, ETC., 97.
| Decision Date | 14 February 1933 |
| Docket Number | No. 97.,97. |
| Parties | MAY v. HAMBURG-AMERIKANISCHE PACKETFAHRT AKTIEN-GESELLSCHAFT. |
| Court | U.S. Court of Appeals — Second Circuit |
Bigham, Englar, Jones & Houston, of New York City (Henry N. Longley and F. Herbert Prem, both of New York City, of counsel), for appellant.
Haight, Smith, Griffin & Deming, of New York City (Charles S. Haight, John W. Griffin, and Wharton Poor, all of New York City, of counsel), for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Alleging that it paid, under duress, sums of money as security for general average contribution, these libels are filed by appellant, as assignee for cargo owners. A special commissioner's report in favor of the appellee was confirmed by the court below.
The ship Isis, of 7,000 tons dead weight, equipped with twin screws and driven by engines of a total of 2,400 horse power, carried cargo for appellant's assignors for Bremen, Hamburg, and Antwerp. It is not questioned that when the vessel left her loading ports on the Pacific Coast she was seaworthy, properly manned and equipped. On her way to Bremen, Germany, the first port of discharge, she stranded in the Weser river, and, in clearing, her stern swung across the channel, striking the opposite bank; the blow doing damage to the port side of the rudder, resulting in a twist of 45° in the rudder stock. She resumed her way up the Weser, and developed a tendency to sheer to starboard. Tugs assisted her to Bremen. This stranding was due to negligence in navigation. While at Bremen, her rudder was examined by a diver, who found nothing wrong with it. She was then drawing 18' 6" of water forward and 23' 3" aft. When dry-docked, the water in the dock was lowered sufficiently to uncover all but 3 or 4 feet of her rudder. The marine superintendent of the appellee took charge, and, with others, inspected the ship. They found the twist in the rudder stock, but the rudder blade was found to be fair and straight as to that part which was above water, and the submerged portion appeared to be in equally good condition. The examination was by hand, boat hook, and was assisted by electric searchlight. Repairs were not made to the rudder stock, and she was directed to proceed to Hamburg with the assistance of three tugs. The rudder was lashed by wires led to the quarter bitts and set up with tackles, and the quadrant was secured by one or more set screws. She proceeded at night down the stream against a flood tide. As the vessel proceeded, the Lesum river enters from the east or the starboard side, and the Weser bends sharply to the west or port, at a point between the points known as seventeenth and eighteenth kilometers. As the Isis approached, the flood tide current was about 3 kilometers per hour setting up both rivers. A vessel bound up the river was sighted at this bend, and the Isis was navigated to starboard. She passed the other vessel near the seventeenth kilometer, but before she was entirely clear of this vessel she sheered to starboard, although the tugs used their utmost efforts to avoid it, and her engines used like efforts, and, while out of control, she was caught by the current on the port bow in such a way as to strand hard and fast amidships on a sand spit at the junction of the Weser and the Lesum rivers near Vegesack at about 3:50 a. m. To release the vessel, it was necessary to make sacrifices, and it is this, together with the expense incurred consisting of the assistance of tugs and the lighterage of the cargo, which forms the subject of the claims of general average. The ship was damaged and repairs were necessary. The entire cargo was discharged and delivered by transshipment to destination. Before delivery of the cargo to the consignees at destination, the appellee obtained deposits to secure payment of general average contribution from each cargo owner for the sacrifices and expenses due to both strandings.
The cargoes in question were shipped under a bill of lading which provided:
The Punta Arenas cargo was shipped under a form of bill of lading providing:
The latter bill of lading, it will be noted, does not have an express condition that due diligence must be used to make the vessel seaworthy, and this form is different from the usual Jason clause with which the first form is identical. The appellant contends that the shipowner cannot recover from the Punta Arenas cargo a general average contribution to sacrifices resulting from negligent navigation or unseaworthiness, because the absence of the due diligence provision has the effect of invalidating the entire general average clause. He refers to The Irrawaddy, 171 U. S. 187, 18 S. Ct. 831, 43 L. Ed. 130, and The Jason, 225 U. S. 32, 32 S. Ct. 560, 56 L. Ed. 969. In The Irrawaddy Case, the validity of the general average clause was not questioned, and the court decided that the Harter Act (46 USCA §§ 190-195) alone did not entitle the owner to share in the general average rendered necessary by negligence in navigation. This was referred to in The Jason, 225 U. S. 32, 54, 32 S. Ct. 560, 56 L. Ed. 969, where an agreement provided that, if the owner had exercised due diligence to make his vessel seaworthy, he should be entitled to share in general average rendered necessary by negligence in navigation. It was held valid, and the owner was entitled to recover a contribution arising out of a negligent stranding. The court pointed out that, so far as the Harter Act relieved the shipowner of responsibility for the negligence of the master and crew, it is no longer against the policy of the law for him to contract with the cargo owners for a participation in general average contribution growing out of such negligence. Thus the shipowner may contract exemption in so far as such is not in violation of the Harter Act. The prohibition of the Harter Act against bill of lading clauses relieving from liability for negligence in the care and custody of cargo limits but does not invalidate general exemptions, and "the proper construction of such general language restricts it to cases where the carrier is not at fault for negligence or failure of due care." Cunard S. S. Co. v. Kelley (C. C. A.) 115 F. 678, 686; Compania de Navigacion La Flecha v. Brauer, 168 U. S. 104, 123, 18 S. Ct. 12, 42 L. Ed. 398.
The Punta Arenas bill of lading must be construed as impliedly containing the restrictions of the Harter Act and as such be enforced. Therefore the effect of the general average provisions of both bills of lading is substantially the same, and it becomes unnecessary for us to consider separately whether the cargoes under these two forms are to be regarded as under bills of lading not containing the Jason clause above.
The bills of lading raised the questions of the effect of (a) negligent navigation; (b) management by the agents of the shipowner other than the master and crew of the vessel; (c) due diligence; and (d) seaworthiness at the time of the...
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