76 F. 587 (S.D.N.Y. 1896), Hurlbut v. Turnure

• Citation: 76 F. 587
• Party Name: HURLBUT v. TURNURE.
• Case Date: October 29, 1896
• Court: United States District Courts, 2nd Circuit, Southern District of New York

Page 587

76 F. 587 (S.D.N.Y. 1896)

HURLBUT

v.

TURNURE.

United States District Court, S.D. New York.

October 29, 1896

Convers & Kirlin, for libellant.

Carter & Ledyard, E. L. Baylies, and W. F. Taylor, for respondent.

BROWN, District Judge.

The above libel was filed upon a general average bond to recover the defendant's share of a general average

Page 588

assessment made upon the steamship Dunedin and her cargo, for ship's materials and cargo consumed as fuel, and also for port of refuge expenses in putting in to Newport News for additional coal, upon a voyage from Cienfuegos, Cuba, to New York, in October, 1891, under the following circumstances:

The steamer left Cuba on the 3d of October with a cargo of merchandise, including sugar of the respondent and others. As ordinary passage with her cargo, and in the probable condition of her bottom, (not newly scraped) would have been eight days, or a few hours over, excluding any specially unfavorable weather. Her consumption of coal was 12 tons per day; and the evidence does not warrant my finding that on leaving Cienfuegos she had over 115 tons, a supply for say 9 1/2 days. She was 12 days, however, in reaching Newport News, still one day's sail from New York. On the 4th of October, the second day out, on rounding St. Antonio, she met head winds and seas, and on the 9th and 10th a northeast gale. This, on the 11th, became a hurricane, which continued through the 12th and 13th, and carried her back on her course, so that she was unable to reach Newport News until the 15th of October. On the morning of the 11th, with only 18 tons of coal left, the engineer began to use ashes and ship's material along with the coal; and on the 12th, with but 12 tons of coal remaining, the use of sugar as fuel along with coal began. During the last half day, on the 15th, before reaching Newport News, only sugar fuel, according to the Captain's testimony, was used.

If 115 tons of coal was a reasonably supply for the voyage to New York, then the consumption of the ship's material and cargo that became necessary from the prolongation of the voyage through extraordinarily long-continued heavy weather, and the putting into Newport News for additional coal, were general average expenses, and the charges as assessed should be sustained. The defendant contends that 115 tons of coal on leaving Cienfuegos was not a reasonable supply for a voyage to New York at that season; that the consumption of ship's material and cargo were the result of the ship's fault in not taking a reasonably sufficient supply, and that the general average assessment should, therefore, be disallowed.

The weight of testimony is that for the ordinary contingencies of the voyage, there should have been at least 10 days' supply of coal or upwards; whereas the steamer took only 9 1/2 days' supply. I cannot sustain the contention, however, that a mere deficiency of five or ten tons below the customary supply makes the ship an insurer against all subsequent events, or against damages not arising from the short supply, so as to exempt the cargo from a general average charge not arising from this deficiency. No authorities to that effect have been cited. The analogies are to the contrary. An insurance policy, indeed, does not attach if the vessel is unseaworthy at the commencement of the voyage insured; because seaworthiness is a part of the contract, and a condition precedent. But seaworthiness is not a condition precedent of the obligation of the shipper to pay freight. Though the shipper may for

Page 589

unseaworthiness refuse to load, yet if he ships his goods, and the voyage is performed, he must pay the stipulated freight, less any damages arising from the...