Scottish Nav. Co. v. Munson SS Line

• Decision Date: 01 October 1924
• Citation: 60 F.2d 101
• Parties: SCOTTISH NAV. CO., Limited, v. MUNSON S. S. LINE. MUNSON S. S. LINE v. SCOTTISH NAV. CO., Limited.
• Court: U.S. District Court — Southern District of New York

60 F.2d 101

SCOTTISH NAV. CO., Limited, v. MUNSON S. S. LINE.

MUNSON S. S. LINE v. SCOTTISH NAV. CO., Limited.

District Court, S. D. New York.

October 1, 1924.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Charles R. Hickox and Earl Appleman, both of New York City, of counsel), for Scottish Nav. Co., Limited.

Burlingham, Veeder, Masten & Fearey, of New York City (Roscoe H. Hupper and W. J. Dean, both of New York City, of counsel), for Munson S. S. Line.

WARD, Circuit Judge.

This libel and cross-libel arise out of a charter by the Scottish Navigation Company, Limited (hereinafter called the owners), of their steamer Dunolly, to the Munson Steamship Line (hereinafter called the charterers). The printed form used is entitled "Time Charter, Government Form, approved by the New York Produce Exchange," but the blanks as filled up made the form a voyage charter "for about one round trip * * * charterers to have liberty to sublet the steamer * * * but remaining responsible for the fulfilment of the charter party * * * Steamer to be placed at the disposal of charters at a U. S. port north of Cape Hatteras at charterers' option * * * to be employed in carrying lawful merchandise * * * between safe port and/or ports of U. S. A. and/or * * * West Indies and/or Central America * * * as the charterers or their agents shall direct." It was plainly a voyage charter, no time being specified, though the charter hire, instead of being a lump sum or calculated on the weight or volume of the cargo, was to be paid at $3.25 on the steamer's dead weight capacity semimonthly in advance from the day of her "delivery" until the hour of the day of her "redelivery" in like good order and condition, ordinary wear and tear excepted, to the owners (unless lost) at a United States port north of Cape Hatteras at "charterers' option." Article 4.

As matter of law the charter party was not a demise, Clyde Commercial S. S. Co. v. West India S. S. Co. (C. C. A.) 169 F. 275, cert. denied, 214 U. S. 523, 29 S. Ct. 702, 53 L. Ed. 1067; Dunlop S. S. Co. v. Tweedie Trading Co. (C. C. A.) 178 F. 673; The Volund (C. C. A.) 181 F. 643, 666; Munson S. S. Line v. Glasgow Navigation Co., Ltd. (C. C. A.) 235 F. 64, 67. The owners remained in exclusive possession throughout; the steamer was not delivered to or redelivered by the charterers, and they never had anything but her carrying capacity, with the right to name the ports of loading and discharging until the voyage or voyages ended. Besides, in this case it was as matter of contract, not a demise; article 25 providing: "Nothing herein stated is to be construed as a demise of the steamer to the time charterers. The owners to remain responsible for the navigation of the steamer, insurance, crew and all other matters same as when trading for their own account."

The words "delivery" and "redelivery" in the printed form do not apply, except in the sense that charter hire begins to run when the carrying capacity of the steamer is put at the charterers' disposal and ends when the voyage or voyages end at a port of the United States north of Cape Hatteras to be named by them. I mention this as an answer to what seems to be a theory of the owners in their libel and in the examination of some of their witnesses, viz. that this provision made the charterers responsible for damage to the steamer, however caused, as if they were in possession as bailees for hire, though in their briefs neither party discussed any such construction of article 4.

The charterers did sublet, and have paid hire only up to December 19, 1920.

Two round voyages were made: The first from Newport News to Prinzapolco, Nicaragua, Central America, to load a cargo of mahogany logs for New Orleans, which she finished discharging December 20; and the second, January 8, 1921, from Mobile with a cargo of steel rails for Port Tanamo, Cuba, after the delivery of which the charterers ordered her to Norfolk, Va., in ballast, where she arrived February 2, 1921, at 9:30 a. m.

The steamer was built in 1901, had a boat deck, bridge deck, and main deck, with two well decks, one between the forecastle and bridge deck and the other between the poop and the bridge deck; four holds, Nos. 1 and 2 forward of the boiler room and Nos. 3 and 4 aft of the engine room; a foremast and topmast between the hatches of holds 1 and 2 and a mainmast and topmast between the hatches of holds 3 and 4. The holds contained many stanchions irregularly placed between the tank top and the main deck. The duty of loading, trimming, and discharging cargo was put expressly by the charter party upon the charterers "under the supervision of the captain." Article 8. The steamer lay a mile beyond the bar in Prinzapolco, in an exposed position in the open sea, and the logs were brought in rafts by tugs to her port side, which was the lee side. The logs were lifted by the steamer's derricks and lowered through the hatches into the holds. When enough were in the hatch, the stevedores stowed them fore and aft throughout the hold, and it was very difficult to move them into the wings because of the stanchions. The heavy rolling sea continued during the whole of the loading, and the logs as they were lifted and lowered and subsequently stowed did considerable damage to the bulwarks, hatch coamings, stanchions, and tank tops. Such damage is usual in loading and discharging logs, but was unusually large in this case because of the continual rolling of the steamer and the obstruction of the stanchions in the holds. The charterers in loading were bound to exercise ordinary care and skill according to the circumstances, and I am satisfied that they did so. Not one word is said in the steamer's log about negligence on the part of the winchmen in running the winches, though the damage was regularly mentioned day by day and always attributed to the rolling of the steamer. So in the extended protest signed on arrival at New Orleans by the master, chief officer, carpenter, and two sailors only the rolling is mentioned as a cause of the damage. Counsel for the owners sought to explain the silence of the log as to any negligence of the stevedores by asking some of the officers whether it was not usual in the log to attribute all damage, however caused, to the weather. If there be such a dishonest custom, which I do not believe, it does not explain the log entries in this case. Its purpose must be to protect owners from liability for damage to cargo, and can hardly extend to depriving them of their right to recover for damage to the vessel resulting from negligence of third parties. Yet now the owners charge the charterers with negligence in running the winches too fast.

It is true there is some testimony that the officers on several occasions complained to the foreman stevedore at Prinzapolco that the winchmen ran the winches too fast, but I do not believe that they would have stood by and tolerated continuous negligence of the winchmen which damaged the steamer. The master would certainly have replaced the stevedore's winchmen from his own crew, as he had the right to do under article 23 of the charter party; there being no evidence of any "rule of the port or of labor unions" preventing the crew from operating the winches. It seems to me that this testimony is a kind of autosuggestion not uncommon nor always conscious on the part of witnesses looking back for some explanation of past events favorable to themselves or to their...