Hashimoto v. American Union Line, Inc.

• Decision Date: 01 February 1921
• Citation: 280 F. 748
• Parties: HASHIMOTO v. AMERICAN UNION LINE, Inc.
• Court: U.S. District Court — Southern District of New York

280 F. 748

HASHIMOTO v. AMERICAN UNION LINE, Inc.

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

February, 1921

Haight Sandford & Smith, of New York City, for plaintiff.

Engel Bros., of New York City, for defendant.

MAYER District Judge.

The court has found as a fact that the Shigizan Maru was delayed in Genoa during March and April, 1917, for 1 1/2 days, and that this delay was caused by a broken winch on the port side of No. 3 hatch. The court has further found as a fact, in accordance with the stipulation of counsel, that the Shigizan Maru was delayed at Philadelphia in May, 1917, for one day and for the same reason. On the basis of these findings, it remains for the court to decide whether or not the defendant, as assignee of the charterer, is entitled to recover anything by reason of these delays.

The charter party contained, inter alia, the following provisions:

'That the former party (meaning the plaintiff) agrees to let, and the latter (meaning the Templeman Steamship Company assignor of this plaintiff) agrees to hire, the said steamship or vessel (meaning the steamship Shigizan Maru), * * * she being then tight, staunch, and strong, and in every way fitted for the service.'

'That the owners shall * * * provide and pay for the necessary equipment for the proper and efficient working of the steamer.'

'That in the event of loss of time from deficiency of men or stores, breakdown of machinery, or damage preventing the working of the vessel for more than 24 hours, the payment of the hire shall cease until she be again in an efficient state to resume her duties.'

The clause considered in Munson S.S. Line v. Miramar S.S. Co. (D.C.) 150 F. 437, affirmed 166 F. 722, 92 C.C.A. 412, read as follows:

'That the owner shall provide and pay for all provisions, wages, and consular shipping and discharging fees of the captain, officers, engineers, firemen, and crew, shall pay for the insurance of the vessel, also for all the cabin, deck, engineroom, and other necessary stores, and maintain her in a thoroughly efficient state in hull and machinery for and during the service.'

The clause just quoted, supra, is, in substance and effect, similar to the clause in the charter party (quoted supra) that the owners shall provide the necessary equipment, etc. So far as applies to Philadelphia, I am unable to distinguish the case at bar in principle from the Munson Case, supra. See, also, Work v. Leathers, 97 U.S. 379, 24 L.Ed. 1012. Indeed, this case, if anything, is stronger, because clearly the failure to get a new winch at Philadelphia is not excusable.

I am inclined to think, however, that there is not involved any question of due diligence. It is always a matter of vital importance to a charterer that the 'owner shall provide * * * for the necessary equipment for the proper and efficient working of the steamer. ' Hence the failure so to provide is a breach of duty, which cannot be excused, unless proximately due to an excepted...