Leon Bernstein Company v. Wilhelmsen

• Decision Date: 19 April 1956
• Docket Number: No. 15829.,15829.
• Citation: 232 F.2d 771,1956 AMC 754
• Parties: LEON BERNSTEIN COMPANY, Appellant, v. Wilhelm WILHELMSEN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

1956 AMC 754, 232 F.2d 771 (1956)

LEON BERNSTEIN COMPANY, Appellant, v. Wilhelm WILHELMSEN, Appellee.

No. 15829.

United States Court of Appeals Fifth Circuit.

April 19, 1956.

Malcolm W. Monroe, New Orleans, La., Deutsch, Kerrigan & Stiles, Rene H. Himel, Jr., New Orleans, La., of counsel, for appellant.

Alfred W. Farrell, Jr., New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellee.

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

BROWN, Circuit Judge.

After departure from the Port of Manila, P. I., on her voyage from Charleston, South Carolina, to the Far East, the Titania encountered freshening weather and began to roll and pitch. As this was in the typhoon season (September) and heavy weather was anticipated on the leg to Hong Kong, it was decided to fill empty deep tanks with sea water ballast for better trim.

Cargo was damaged when sea water overflowed the open manhole in the top of a deep tank located in the same hold as the cargo. The manhole cover had been removed to enable the Mate to determine when the tank was full, although, of course, sounding pipes were available and could have been used. The vessel concedes that the Mate was negligent in not having closed down the intake before the tank overflowed causing the cargo damage involved here.

While there are some peripheral charges faintly injecting suggestions of some antecedent unseaworthiness and which have neither findings nor evidence in the record for support, the only thing which might differentiate this from the classic case that negligence in the trimming, the pumping and handlng of ballast¹ at sea is an excusable "Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship", Carriage of Goods by Sea Act, 46 U.S. C.A. §§ 1301, 1304(2) (a), is an isolated piece of testimony of the Mate.

Upon written cross interrogatories, the Mate had several times stated that the manhole covers were removed to permit visual watching of the water level to make certain that the tanks did not overflow. This then transpired:

"Q. Is it not a fact that the manhole covers were removed to make certain that the tank would not overflow and that this action was taken primarily to protect the cargo stowed in the No. 3 shelter deck from being wetted? A. Yes, it is a fact."

With commendable resourcefulness and recognized ingenuity by able counsel, the question was neatly framed to match the rubric of The Germanic, 196 U.S. 589, 598, 25 S.Ct. 317, 49 L.Ed. 610, 614. But the trial court was unwilling to have this fact-law question of American Law foreclosed by a foreign seaman through such device. And so are we.

When Justice Holmes (The Germanic, supra) capsulated the test with his characteristic pungent brevity — "* * * the question which section of the Harter Act is to govern must be determined by the primary nature and object of the acts which cause the loss * * *," — it seems evident that he neither intended, nor have courts so understood, that the standard was to be artificially applied by playing on or with words.

Of course, as a last link in the chain of causation, the damage here came about because the manhole cover was off. But the sea water would not have been in the deep tank had not it been determined that the ship should be ballasted to trim her for expected heavy weather. That was the real and underlying cause of the damage. And without a doubt, that act of ballasting to trim had as its main and principal aim the general care and safety of the whole vessel to protect ship, crew, cargo and freight as she plowed ahead into the area of typhoons.

This was not done for the preservation of the cargo in that particular hold or to alter or eliminate conditions likely to cause or permit damage to that cargo. And, since the Mate in this specific testimony limited it to cargo in No. 3 hold, neither was it the case of handling or protecting other cargo as is The Germanic, supra.

The statute does exculpate the carrier for cargo damage caused by acts in navigation and management of the vessel, but the expectation of ultimate escape ought not to penalize a vessel for an effort toward prudent execution of such acts. And yet that would be the consequence here if, in carrying out the navigational acts of...