May v. HAMBURG-AMERIKANISCHE P. AKTIEN-GESELLSCHAFT

Citation57 F.2d 265
PartiesMAY v. HAMBURG-AMERIKANISCHE PACKETFAHRT AKTIEN-GESELLSCHAFT.
Decision Date27 October 1931
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

The report of the Special Commissioner was as follows:

To the Honorable the Judges of the United States District Court for the Southern District of New York:

I, Mark W. Maclay, Special Commissioner, do hereby report as follows:

On December 2, 1930, an order was entered herein referring these causes to me as special commissioner "to hear the evidence adduced by the respective parties, and to report my conclusions thereon to the court with all convenient speed. By this order of reference it was further ordered `that said report of the Commissioner shall be advisory only and shall not be construed to be a determination of the issues' and that the commissioner's fees and stenographic expenses of the reference be taxable against the unsuccessful party, unless the Court otherwise orders."

On December 10, 1930, the witness Schier, chief officer of the Motorship Isis, who was about to go to sea, was examined on behalf of the respondent before me. By agreement the trial of the causes was set for December 22d. On December 22d and 23d I was attended by Messrs. McCutchen, Olney, Mannon & Greene and Messrs. Bigham, Englar, Jones & Houston (Henry N. Longley, Esq., advocate), proctors for the libelant, and by Messrs. Haight, Smith, Griffin & Deming, and William Denman, Esq. (Charles S. Haight, Esq. and Charles S. Haight, Jr., Esq.), proctors for the respondent, who presented testimony consisting of 273 pages of minutes, numbered 171-443, inclusive, and exhibits marked Libelant's Exhibits A-H, inclusive, and Respondent's Exhibits, 1, 1a, 3-18, inclusive, which are filed herewith.

In order to facilitate reference to the testimony, all of that taken in New York was given consecutive page numbers, so that pages 1-130, inclusive, cover the deposition of the captain, Respondent's Exhibit 14; pages 131-170, inclusive, cover the mate's testimony, Respondent's Exhibit 15; and pages 171-443, inclusive, cover the minutes of the trial itself.

It will be noted that, contrary to the usual custom, the libelant's exhibits are lettered and the respondent's are numbered. This also was done to facilitate reference and to avoid duplication of identifying letters or numbers, as in the first testimony, taken in Hamburg, Respondent's Exhibit 13, the exhibits attached were designated in this way. It is believed the situation is made clear on pages 171-173 of the trial minutes.

In order to expedite consideration of the case, the respondent filed its brief first, and, after filing and service of the main briefs of the two parties, each was permitted to file a reply. These briefs were filed respectively on December 31, 1930, and January 7, 12, and 15, 1931.

In view of the prevailing doubt as to the most convenient practical way to comply with admiralty rule 46½ (28 USCA § 723) I have prepared this report in the form of an opinion, divided as it seems to me the determination of the various issues of the case logically requires, with an appendix containing findings of fact and conclusions of law stated in brief summary form.

The findings and conclusions thus summarized are intended to cover all points in dispute, but not to include admitted or wholly uncontroverted facts or conclusions such as the due incorporation of the parties. If the appendix is not a sufficient compliance with rule 46½ (28 USCA § 723), it is hoped that the arrangement of the opinion itself will permit the court to supplement the findings and conclusions sufficiently to prevent any prejudice to the parties.

Having considered the evidence and the argument of counsel, I hereby further report as follows:

I. Statement.

Five libels, designated as actions Nos. 1, 2, 3, 4, and 5, were filed to recover deposits alleged to have been wrongfully required to secure general average contributions claimed by the owner from the several parcels of cargo of the Motorship Isis referred to in the five libels. Five stipulations, Exhibits C-G, inclusive, are in evidence. A further stipulation, concerning the bills of lading in the five suits, Exhibit H, was marked in evidence after the hearing but before final submission of the case. By order entered herein on January 13th, the five actions were consolidated.

The effect of the pleadings and these stipulations is as follows:

(1) The incorporation of the parties and other formal matters are admitted.

(2) All the merchandise referred to in the libels was received on board the motorship Isis in good order and condition, and was shipped and carried under bills of lading, photostatic copies of which are attached to each libel, with the exception of action No. 5. In respect of that cargo, it is stipulated that the forms of the bills of lading were the same as those in action No. 1. Exhibit H. The photostatic copies are stipulated to be correct, with the exception of some of the amounts of freight, which in suits Nos. 1, 3, and 4 are corrected in accordance with Exhibit H.

(3) The cargo was transshipped at Bremen by lighter or lighters to Hamburg, Antwerp, and London, where delivery was refused, unless deposits were made by the respective consignees as security for general average contributions. The names of the parties making the general average deposits, the dates when they were made, the amounts of the deposits, the merchandise in respect of which they were made, the ownership of the merchandise, and the subsequent assignment directly or indirectly to the libelant of all right, title, and interest in and to the deposits and any cause of action against the respondent by reason of the demand and collection of the deposits, are admitted. Exhibits C-G, inclusive.

(4) The damages demanded in each libel are the respective amounts of the general average deposits with interest thereon from the dates of deposit. The principal amount of damages claimed is as follows:

                  Action No. 1 ..................   $17,800.95
                  Action No. 2 ..................     1,540.60
                  Action No. 3 ..................    65,773.28
                  Action No. 4 ..................    23,852.17
                  Action No. 5 ..................    13,317.03
                                                   ___________
                                                   $122,284.03
                

(5) The libels allege that the refusal to deliver without general average deposits was wrongful and in breach of the bills of lading. This is denied by the answers, which allege the refusal to deliver without general average deposits was not contrary to, but in accordance with, the bills of lading.

(6) The separate defense pleaded in the answers is based on paragraphs 4 (liberty to transship), 5 (liberty to forward), 7 (requirement of deposit to secure general average contribution in accordance with York-Antwerp Rules of 1890, etc., and the Jason clause), and 8 (exemption from and limitation of liability in the Harter Act and Canadian Water Carriage of Goods Act, 1910), in the case of shipments made under one of the two forms of bill of lading; and on paragraphs 4 (liberty to transship), 20 (general average clause), and 28 (providing a lien on goods for freight and charges), in the case of the other form of bill of lading. Briefly, this defense is that the Isis was seaworthy for her intended voyage on sailing from her last loading port; that the disasters which gave rise to the general average sacrifices were caused by negligent navigation; that under the bills of lading the cargo under such circumstances must contribute in general average; and that the deposits demanded in the libel were properly required to secure such general average contribution from the cargo as ascertained and fixed by competent adjusters, in accordance with the bills of lading.

II. The Facts.

The following facts either are specifically admitted, are undisputed, or are so clearly established by the evidence as to make any discussion of the evidence unnecessary:

The motorship Isis, a vessel 376.2 feet long, 51.8 feet wide, 28 feet 3¾ inches molded depth, of about 7,000 tons dead weight, equipped with twin screws, driven by engines having 2,400 total horse power, loaded at various Pacific Coast ports with cargo destined for Bremen, Hamburg, and Antwerp. When she left the last port of loading, she was in all respects seaworthy and properly manned, equipped, victualed, and supplied. Exhibit 14, Krueger, 4.

On February 6, 1928, while on her way to Bremen, the first port of discharge, she stranded in the Weser river, and, in getting clear, some hours later, her stern swung across the channel and struck the opposite bank. Most, if not all, of the force of the blow fell on the port side of the rudder, resulting in a twist of 45° in the rudder stock, as was afterwards discovered. When the Isis resumed her way up the Weser, she developed a tendency to sheer to starboard. With the assistance at first of two tugs, and later of three more tugs, she continued on up the river to Bremen, where she arrived without further incident. At this time her draft was 23' 3" forward and 23' 5" aft.

It is not disputed that this stranding was caused by negligence in navigation.

While the Bremen cargo was being discharged, the rudder was examined by a diver, who found nothing wrong with it. The Isis, then drawing 18' 6" forward and 23' 3" aft, was dry-docked at 4:18 p. m., February 9th, and the water in the dock lowered sufficiently to uncover all but three or four feet of the rudder.

As the result of an examination held about dusk and after dark by Capt. Reichenbacher, marine superintendent for Hamburg American Line, Inspector Schubert, Adolf Menck, dock engineer of Weser dry dock; John Wuhrmann, dock inspector of the Weser dry dock, and Capt. Krueger, of the Isis, it was found that, although the rudder stock was twisted about 45°, the rudder blade itself was fair and straight in so far as it was visible, and its submerged portion appeared to be in the same condition from...

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