Ionion Steamship Co. of Athens v. United Distillers, 15811.

• Decision Date: 20 July 1956
• Docket Number: No. 15811.,15811.
• Parties: IONION STEAMSHIP COMPANY OF ATHENS v. UNITED DISTILLERS OF AMERICA, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

1956 AMC 1750, 236 F.2d 78 (1956)

IONION STEAMSHIP COMPANY OF ATHENS v. UNITED DISTILLERS OF AMERICA, Inc.

No. 15811.

United States Court of Appeals Fifth Circuit.

July 20, 1956.

Leon Sarpy, Chaffe, McCall, Phillips, Burke & Hopkins, Leon Sarpy and Donald A. Lindquist, New Orleans, La., for Ionion S. S. Co., appellant.

Francis Emmett, Brunswich G. Deutsch, Deutsch, Kerrigan & Stiles, New Orleans, La., for appellee, Eberhard P. Deutsch, Rene H. Himel, Jr., New Orleans, La., of counsel.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The District Court, on the cargo owner's libel for damage, held that the strandings of The Ionian Pioneer as she left San Pedro de Macoris, the second of two loading ports under a molasses voyage charter, and again while leaving Nuevitas, Cuba, a claimed port of refuge, were caused by the owner's failure to make the vessel seaworthy. With this fell the shipowner's cross libel for General Average contributions. Defending against these acknowledged strandings, the shipowner claimed that, at least at San Pedro, it was a navigational error excused under the charter party, was not caused by unseaworthiness, and if there was unseaworthiness, there was no showing that it was from the owner's failure to exercise due diligence.

Coming here after a full trial with seventeen witnesses, nine of whom appeared in Court, detailed findings of fact and a separate, able opinion fully expounding the whole case, United Distillers of America v. The T/S Ionian Pioneer, D.C., 130 F.Supp. 647, 1955 A.M.C. 1338, the shipowner's burden on this appeal is the substantial one of convincing us that these findings of fact and fact inferences are clearly erroneous. C. J. Dick Towing Company v. The Leo, 5 Cir., 202 F.2d 850, 1953 A.M.C. 498; Mississippi Valley Barge Line Company v. Indian Towing Company, 5 Cir., 232 F.2d 750, 1956 A.M.C. 757; Societa Anonima Navigazione Alta Italia v. Oil Transport Company (The Mongioia), 5 Cir., 232 F.2d 422; Shockley v. United States, 5 Cir., 224 F.2d 557, 1955 A.M.C. 1731.

This is especially so because, essentially, the controversy is the simple factual one: did Ionian Pioneer go aground because of her unseaworthy steering apparatus? Or did she strand because of navigational errors in departing at night, without setting compass course, without a tug, and mistaken wheel orders or their faulty execution by the helmsman? The heart of this question was the physical maneuvering of the vessel. What did she do? What made her do it? The Master and Pilot would normally be the articulate source for this knowledge. In the quest for truth the Judge, with the opportunity of seeing and hearing him testify in Court, categorically discredited the Master in his explanation. To discredit, to disbelieve, so important a witness upon such a crucial matter quite properly permeated the entire decision. For us to set aside the Trial Judge's conclusion on this would inevitably put us in the middle of retrying the whole case. Bisso v. Waterways Transportation Co., 5 Cir., 235 F.2d 741.

The libelant has never shirked its burden, Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89, 1941 A.M.C. 1697, of affirmatively establishing a case under the contract of private carriage which warranted, at least, due diligence to make the vessel seaworthy,¹ and by reflex, from this and the catch-all exculpatory clause² so tenderly embraced by shipowner, imposed liability where the stated exception was not made out. The Zesta, 5 Cir., 212 F.2d 137, 1954 A.M.C. 899; The Framlington Court, 5 Cir., 69 F.2d 300, 1934 A.M.C. 272. It reasoned correctly that if the strandings were caused by unseaworthiness due to lack of due diligence, then it was not an excepted "loss or damage arising or resulting from" 1 navigational error, 2 stranding or 4 latent defect, 6 any other cause without actual fault or privity, The Folmina, 212 U.S. 354, 29 S.Ct. 363, 53 L.Ed. 546; and certainly not if these were merely concurring causes. Compania de Navigacion La Flecha v. Brauer, 168 U.S. 104, 118, 18 S.Ct. 12, 42 L.Ed. 398; The Olga S., 5 Cir., 25 F.2d 229, 1928 A.M.C. 831.

In this task, while ultimate risk of non-persuasion may have been on the cargo, it had the usual advantages of a bailor putting on the carrier, as the person having the means of knowledge, the obligation of coming forward with some explanation, Commercial Molasses Corp. v. New York Tank Barge Corp., supra; The Northern Belle, 9 Wall 526, 76 U.S. 526, 19 L.Ed. 746, 748; Southern Ry. Co. v. Prescott, 240 U.S. 632, 36 S.Ct. 469, 60 L.Ed. 836, and a presumption of unseaworthiness existing at the beginning of the voyage, where machinery, gear, or appliances fail shortly after the beginning of the voyage without accident, stress of weather, or the like, furnishing an adequate explanation as a likely cause. The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65; The Olancho, D.C.S.D.N.Y., 115 F.Supp. 107, 1953 A. M.C. 1040; The Agwimoon, D.C.Md., 24 F.2d 864, 1928 A.M.C. 645, affirmed 4 Cir., Atlantic Gulf & West Indies Steamship Lines v. Interocean Oil Company, 31 F.2d 1006, 1929 A.M.C. 570.

But these technical advantages were scarcely necessary for unseaworthiness was abundantly proved. So much so that, taking as the Golden Text, the shipowner's expert's kindly estimate that Ionian Pioneer "was coming to the twilight of her life" and his scriptural exposition that the vessel was, "* * * not as good as I would like her to be * * *. We have arrived at a condition in a ship where she is old and becoming wasted and defects are appearing, but it is possible to squeeze, and the word `squeeze' is almost right, to squeeze another few months out of" her, the District Judge nearly exhausted the storehouse of descriptives: "The Ionian Pioneer was a 35-year old steel tank ship. She was owned by Greeks, flew the Panamanian flag, and was manned by the flotsam of many countries. She was rusty, she was leaky, she was hogged. More importantly, and most unfortunately, she had an unpredictable penchant for sheering to port at the most inopportune moments. On two such sheers, she went aground and libellant here has sued for the value of the cargo lost by jettison as a result of these standings. A short time after the incidents in suit, the vessel lost its classification and was considerately consigned to scrap."

The voyage had scarcely been undertaken until flagrant unseaworthiness revealed itself. Arriving at La Romana, Dominican Republic, the first loading port, September 26, over 200 tons of sea water leaked through badly wasted shell plating in way of her engine room spaces to cover the tank tops. Worse, once aboard, nothing could be done with the sea water for her ballast pumps, in deteriorated condition, broke down. This sea water, as unwelcome cargo, stayed with the vessel as she departed September 27 for San Pedro, D. R., to complete loading, and was still aboard at the time of the stranding September 28. The continued presence then of this sea water markedly affected the salvage maneuvers and if causal relationship must be pinpointed, this alone is adequate basis for it.

Entering San Pedro Harbor September 27, the vessel, taking the first of at least seven sudden sheers to port, got out of control and out of the channel. In the local Pilot's judgment it was because "she did not answer the helm properly." At San Pedro she completed the loading of the last fourth of her cargo. So much so, indeed, that with her permanent hog of nine inches, she was overloaded two feet six inches below the applicable summer limit of her Plimsoll marks under the International Load Line Convention 1930, 47 Stat. 2228, e. g., 46 U.S.C.A. § 85 et seq. Of course the shipper could have shut off the supply from shoretanks but the Master³ recognized that this was his, not the charterer's, cf. Oxford Paper Co. v. The Nidarholm, 282 U.S. 681, 51 S. Ct. 266, 75 L.Ed. 614, 1931 A.M.C. 522, responsibility. This palpable unseaworthiness, Corsar v. J. D. Spreckels & Bros. Co., 9 Cir., 141 F. 260; The Benjamin Noble, 6 Cir., 244 F. 95, affirmed 249 U.S. 334, 39 S.Ct. 292, 63 L.Ed. 631; Knauth, Ocean Bills of Lading, 4th Ed. at pp. 191, 192, not only existed with full knowledge of the owner's responsible servants, it was created by them and affected the entire venture since all cargo (La Romana and San Pedro), loaded in the same tanks, was imperceptibly mixed.

So, in the evening darkness of September 28, hogged, leaking and overloaded, Ionian Pioneer commenced her charter party voyage to New Orleans from the last of the two optional loading ports. Proof of general unconcern and the vessel owner's participation in it, is the fact that the vessel, despite the Master's radio request, and owner's refusal because of exorbitant cost, to purchase locally 50 tons of fuel oil to afford adequate margin of safety, was leaving with known insufficient bunkers aboard, The Willdomino v. Citro Chemical Co., 272 U.S. 718, 47 S.Ct. 261, 71 L.Ed. 491, 1927 A.M.C. 129; The Malcolm Baxter, 277 U.S. 323, 48 S.Ct. 516, 72 L.Ed. 901, 1928 A.M.C. 960, under the owner's express orders as a remote "Master" to "proceed New Orleans reduced speed."

A small tug alongside was used in assisting the vessel around the one bend in the channel at the juncture of the turning basin and the dredged channel. The vessel straightened up, and the tug cast off. The night was clear with little or no wind and no tide, and the lighthouses on Pescadero Point and South Point were lighted brightly. The channel buoy lights were burning as the pilot launch preceded the vessel to light the channel and sea buoys. The entrance to sea was straightaway. The vessel proceeded down the center of the channel at half speed until she was about midway between the breakwater and Buoy No. 2 when the Master reduced speed to dead slow ahead to give the pilot launch time to light the...