United States Steel Products Co. v. American & Foreign Ins. Co.

• Decision Date: 09 March 1936
• Docket Number: No. 285.,285.
• Citation: 82 F.2d 752
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES STEEL PRODUCTS CO. v. AMERICAN & FOREIGN INS. CO. et al.

82 F.2d 752 (1936)

UNITED STATES STEEL PRODUCTS CO. v. AMERICAN & FOREIGN INS. CO. et al.

No. 285.

Circuit Court of Appeals, Second Circuit.

March 9, 1936.

Bigham, Englar, Jones & Houston, of New York City (D. Roger Englar, Henry N. Longley, and Alfred Ogden, all of New York City, of counsel), for appellants.

Kirlin, Campbell, Hickox, Keating & McGrann and William H. McGrann, all of New York City, for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

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 Farallon 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 the 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 fact that when the ship broke ground she had not marked upon her chart of the Farallones, or entered in the American light list, or the American pilot book, a new light upon Farallon Sucio, which had been in operation since October 30, 1925. The weekly pamphlets, entitled, "Notices to Mariners," issued by the Hydrographic Office in Panama on September 4, 1925, and in Washington on September 26, had declared that such a light was to be set up; and the ship sailed from New York on an earlier voyage on October sixth without them. When she sailed on the voyage now in question, the Office had published later pamphlets with notices that the light was in actual use, and these she had; but she had not used them to correct the chart, or the American light book. On the other hand the second of two supplements to the British light book mentioned it, and was in its proper place inside the cover of the copy of that manual kept in the chart room; and there was also on board an annual supplement to the American Pilot which showed the light and the proper slip from which had been pasted in place before the ship neared it, though not when she sailed.

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 chart 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 at 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...