Bethlehem Shipbuilding Corporation v. Joseph Gutradt Co.

• Decision Date: 22 March 1926
• Docket Number: No. 4684.,4684.
• Citation: 10 F.2d 769
• Parties: BETHLEHEM SHIPBUILDING CORPORATION, Limited, v. JOSEPH GUTRADT CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

10 F.2d 769 (1926)

BETHLEHEM SHIPBUILDING CORPORATION, Limited, v. JOSEPH GUTRADT CO. et al.

No. 4684.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1926.

Rehearing Denied March 22, 1926.

Wilson & Wilson, Chas. H. Lovell, and Ira S. Lillick, all of San Francisco, Cal., for appellant.

Farnham P. Griffiths, Joseph B. McKeon, Douglas D. Crystal, and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for appellee Pacific Mail S. S. Co.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge.

This was a libel filed by Joseph Gutradt Company, appellee here, against the Pacific Mail Steamship Company, for damages to cargo. The Bethlehem Shipbuilding Corporation, appellant, was the third party respondent, having been impleaded by the Pacific Mail Company, which prayed for judgment over on the ground that the cause of the damage to the cargo was the Bethlehem Corporation's breach of a contract to repair the ship Ecuador. The decree was in favor of the Gutradt Company, libelant, against the Pacific Mail Company, with judgment over against the Bethlehem Corporation, and the Bethlehem Corporation appealed.

The Pacific Mail Steamship Company contracted with the Bethlehem Shipbuilding Corporation to repair the steamship Ecuador, belonging to the steamship company, and among other matters "(4) overhaul all clapper valves on ship's sides, renewing all missing or broken pins and clapper valves (about 30 valves). * * * All work to be finished and vessel alongside pier 44, or any other pier designated by owner, and ready to load cargo by 6 a. m. October 11, 1923." The vessel was delivered to the Bethlehem Corporation for the repairs, and was redelivered to the Pacific Mail Company on Thursday morning, October 11, 1923.

On the 13th of the month the Pacific Mail Company made a contract of affreightment with the Gutradt Company, by which Pacific Mail Company acknowledged receipt of 1,334 cases of salt water soap in apparent good order and condition, and agreed to transport the soap to Norfolk, Va., and there to deliver it in like apparent good order and condition.

After redelivery the ship was fumigated and released in the afternoon of October 11th. The chief officer went through the cargo holds to see that the floor boards and cargo battens were in place, but made no examination of the clapper valves, because those appliances fell within the jurisdiction of the engineer. There were five holds in the ship. In No. 2 hold, to which this suit has special relation, there were three clapper valves, two on the left side and one on the right. A clapper valve is sufficiently described as a nonreturn valve in the hold, and has the function of letting the drain water out and not allowing sea water to come in. The device has a bonnet or cover, which must be properly placed for the successful operation of the valve; otherwise, sea water will enter the hold.

After fumigation the stevedores began stowing the cargo in No. 2 hold between-decks, and on the following day, while stowing from aft forward, a stevedore noticed that the forward port clapper valve of the 'tween-decks was uncovered. He reported the matter, and upon examination the chief engineer discovered that the cover was not in place, but was lying with the bolts on a cargo batten. His testimony is that he bolted it back in its place. At that time the after part of the 'tween-decks of that hold was loaded up to the deck and out in the wings. The engineer crawled over the cargo to see if other valves were intact or not, but he found them covered with cargo. He then went into other holds, where he found all valves, not covered, in sound condition. Loading was finished on the night of Saturday, October 13th, and the ship sailed for New York.

On Sunday evening, about 10 o'clock, soundings revealed 35 inches of water in No. 2 hold. Pumping was resorted to. At midnight soundings showed 25 inches of water; at 2 a. m. Monday there were about 25 inches; at 6 o'clock Monday morning a sounding showed 20 feet of water in No. 2 hold. The ship put in at Wilmington, Cal., where, after discharging cargo in holds 2 and 3, it was found that the water was rushing into No. 2 hold; the bonnet was off the starboard clapper valve, and the clapper and bonnet of the aft clapper valve on the port side were in reverse position, some of the bolts lying on a stringer. The valve that had been repaired by the engineer before leaving San Francisco was found in water-tight condition. It appeared that the starboard valve, through which the water rushed, was beneath the water line. After repairs the ship resumed her voyage.

The cargo which had been stowed in holds 2 and 3 was damaged, and this suit was instituted on the theory that the failure of the Bethlehem Corporation to fasten securely the clapper valves and to overhaul the valves generally caused a breach of the contract of the Pacific Mail with the Gutradt Company to deliver the cargo in good order and condition; hence that the Bethlehem Corporation is liable to the Pacific Mail for the damage for which the Pacific Mail Company is liable to the Gutradt Company for breach of its contract of affreightment.

It is clear to us that, when the ship was redelivered to the Pacific Mail Company, the shipbuilding corporation had broken its contract by failing to repair the clapper valves in No. 2 hold, and a mere statement of the fact that the defective clapper valve let the water in compels the view that the ship was unseaworthy. It therefore...