Mississippi Shipping Co. v. ZANDER AND COMPANY

• Decision Date: 23 November 1959
• Docket Number: No. 17558.,17558.
• Parties: MISSISSIPPI SHIPPING CO., Inc., Claimant-Appellant, v. ZANDER AND COMPANY, Inc., et al., Libellants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

270 F.2d 345 (1959)

MISSISSIPPI SHIPPING CO., Inc., Claimant-Appellant, v. ZANDER AND COMPANY, Inc., et al., Libellants-Appellees.

No. 17558.

United States Court of Appeals Fifth Circuit.

August 12, 1959.

Rehearing Denied October 15, 1959.

Judgment Vacated November 23, 1959.

Alfred M. Farrell, Jr., Walter Carroll, New Orleans, La., Terriberry, Rault, Carroll, Martinez & Yancey, New Orleans, La., of counsel, for appellant.

Henry J. Read, John P. Hammond, Montgomery, Barnett, Brown & Read, New Orleans, La., of counsel, for appellee Zander & Co., Inc., et al.

Joaquin Campoy, Deutsch, Kerrigan & Stiles, New Orleans, La., Brunswick G. Deutsch, New Orleans, La., of counsel, for appellee J. Aron & Co., Inc.

Before HUTCHESON, TUTTLE and BROWN, Circuit Judges.

Judgment Vacated November 23, 1959. See 80 S.Ct. 212.

JOHN R. BROWN, Circuit Judge.

This case presents important questions under the Carriage of Goods by Seas Act (Cogsa), 46 U.S.C.A. §§ 1300-1315.¹ The principal question is whether cargo damage, in a legal sense, was caused by an "Act, neglect, or default of the master * * * or the servants of the carrier in the navigation or in the management of the ship," for which liability is excused by Section 4(2)(a) of Cogsa, or was "caused by want of due diligence on the part of the carrier to make the ship seaworthy * * * in accordance with the provisions of paragraph (1) of Section 3" for which liability remains under Section 4(1).² This in turn depends largely on whether, at the time of the physical event damaging the vessel and later the cargo, the voyage had commenced. The case also points up the sharp distinctions between Cogsa and the Harter Act, 46 U.S.C.A. §§ 190-196, while, at the same time, the great similarities of the two Acts.

The facts, set forth in great detail in post-appeal findings and conclusions, have been reported, Steamship Del Sud, D.C. E.D.La.1959, 171 F.Supp. 184, 1959 A.M.C. 653, and need not be repeated here. Those fact or legal-fact conclusions which we reject under the amphibious clearly erroneous concept of McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999, we discuss separately.

The cargo damaged was principally coffee loaded in No. 2 lower hold of the SS Del Sud at Santos September 9 and 10, 1952, and a few cases of corned beef previously loaded in No. 2 lower tween deck at Montevideo and Buenos Aires on September 2 and 5. The vessel arrived next at Rio de Janeiro at noon September 11 departing that night for Curacao, B.W.I., and thence her discharge port of New Orleans where damage was discovered for the first time. Only Santos and pre-Santos cargo is involved.

It is now without dispute that sea water entered through a 12-inch fracture in the bow shell plate just below the lip of overboard discharge soil line which protruded about 2 inches outboard of the surface of the hull plates. The fracture was caused by the pressure of the ship's weight bearing on this small protuberance in momentary contact against the concrete face of the dock which imperceptibly but now significantly, inclined at an angle of 7°35' toward the vessel. The lip or drip pad of the overboard discharge line, at the vessel's loaded draft, was then about 2 feet above the water level and some 4 feet below the level of the dock. This was at the flaring contour of the bow so that the shell plating was in a plane in the shape of a spheroid. Contact between the dock and the ship's port bow was an intentional part of the traditional and purposeful maneuver of simultaneously undocking and turning the vessel around for departure from the port of Santos.

At 2133 hours September 10, the vessel, moored as customary, port side to the dock, was made ready for sea and for her customary maneuver away from the dock. She singled up her mooring lines and a local Santos pilot came aboard to unberth the vessel. Her engines were put on stand-by at 2157 hours. The Tug Neptune made fast on the starboard quarter with a hawser in order to swing the stern of the Del Sud away from the dock out into the channel to permit her to turn about in a counterclockwise manner. By 2208 hours the stern mooring lines and all lines other than the bow spring line and breast line were cast off. The bow spring line and breast line were held fast to the dock in order to hold the port bow at the dock while the stern was brought out into the channel by means of the Tug Neptune hauling on the hawser at right angles to the vessel. Between then and 2214 hours the ship's engines were maneuvered at various speeds. At 2214 hours the engines were put full astern and at that moment the two remaining lines were cast off. It was during these maneuvers between 2208 and 2214 hours that the port shell plating of the Del Sud, just forward of the point where the curvature of the hull begins at No. 2 hold, rolled in contact with the concrete facing of the dock. This was in accordance with the plan followed by the Del Sud and her sister ship on many previous occasions on departing from Santos. The fracture resulted because the drip pad lip, from the peculiar combination of water level draft and trim, happened momentarily to take the full force of the vessel as she was rolling against the concrete dock.

It is now certain that as the Del Sud left the Port of Santos she bore an open wound in a cargo space. She was, therefore, unseaworthy in fact. The shipowner contends that this unseaworthiness was caused, and therefore excused, by a Section 4 act or error in the management or navigation of the vessel. Cargo does not really dispute this. For Cargo agrees that, unlike the former days of the Harter Act when its Section 3 (46 U.S. C.A. § 192) error in management exception was confined to events occurring after the commencement of the voyage. The Newport, 1925, 9 Cir., 7 F.2d 452, 1925 A.M.C. 1193; The J. L. Luckenbach, 1933, 2 Cir., 65 F.2d 570, 1933 A.M.C. 980, affirming D.C., 1 F.Supp. 692, 1933 A.M.C. 105, Cogsa's Section 4(2)(a) is now unconditional both as to due diligence and in point of time. Isbrandtsen Co. v. Federal Insurance Co. (The John Miller), D.C., 113 F.Supp. 357, 1952 A.M.C. 1945, affirmed per curiam, 2 Cir., 1953, 205 F.2d 679, 1953 A.M.C. 1033. Gilmore & Black Admiralty, Ch. III, Part II, 119 et seq., esp. §§ 3-25, 3-29, 3-30 (1957). Consequently had the Santos coffee been immediately damaged by the inrush of water, the Section 4 defense would have been absolute whether the ship was deemed to be on her voyage, making ready for her voyage, or simply undocking preparatory to commencing her voyage.

What Cargo contends — and has so far successfully maintained — is that the unseaworthiness resulting from the act or error in management and navigation existed prior to the time the voyage commenced, and that consequently there was a failure to perform the Section 3 duty to exercise due diligence "before and at the beginning of the voyage" to make the ship seaworthy. Cf. The Newport (G. Amsinck & Co. v. Pacific Mail Steamship Co., 9 Cir., 1925, 7 F.2d 452, 1925 A.M.C. 1193; and see Knauth, Ocean Bills of Lading 202 (1957). On this approach the Cogsa Section 4 exemption is lost, not because the event occurred prior to the commencement of the voyage, but rather because the result of it, fully manifest before the commencement of the voyage, made the ship unseaworthy. Of course, an ingredient in that thesis is that the master knew, or ought to have known, of the damage to the Del Sud while the vessel was yet in Santos so that his failure to inspect and repair was a want of due diligence. If the main premise is correct — that is, the noncommencement of the voyage — the owner would bear the consequences of the master's failure since the duty to exercise due diligence rests upon all and is nondelegable. International Navigation Co. v. Farr & Bailey Mfg. Co., 1901, 181 U.S. 218, 21 S.Ct. 591, 45 L.Ed. 830.

The factual basis for this theory comes down to the proposition that the voyage could not yet have commenced because the vessel was still partly at the dock since a breast and spring line were still made fast. Support of a legal nature to that highly artificial approach is thought to be found in the Section 3 phrase "before and at the beginning" of the voyage, as though blending these two prepositions expands a "beginning" from some precise moment to a sort of continuing transitional state.

The use of "before and at" does not make the commencement of the voyage — whenever it is — any less a beginning. When the voyage begins, it is the voyage, and not the beginning of it, which continues. The dual reference is to make doubly sure that with respect to cargo then being loaded the vessel must be seaworthy at the time of the receipt of cargo and must continue in that state until the ship sails. That the duty reaches backward from commencement does not make it reach forward, as the Act prescribes that the latest point of performance is at the beginning. The voyage must have some place (and time) of beginning. After that, it is not the beginning, but the voyage itself which transpires.

In the light of these principles a majority of the Court therefore concludes that the voyage had commenced at the time the wound to the ship's side was sustained.

We need but briefly indicate our views. In a very real sense the voyage had begun. The ship had no further purpose at the dock. She was made ready for sea. She was being turned around for the purpose of leaving. The lines to the dock were fast not to keep her there, or to continue her stay at the wharf. They were there solely as an essential step in her navigational maneuvering. They were no less vital than the hawser to the straining tug off the starboard quarter. The ship's engines were actively maneuvering to accomplish the swing and officers and men were stationed for simultaneous undocking and departure. The ship was literally and figuratively in the sole command of the master on...