Societa Anonima Cantiero Olivo v. Federal Ins. Co., 105.

• Decision Date: 23 January 1933
• Docket Number: No. 105.,105.
• Citation: 62 F.2d 769
• Parties: SOCIETA ANONIMA CANTIERO OLIVO v. FEDERAL INS. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

62 F.2d 769 (1933)

SOCIETA ANONIMA CANTIERO OLIVO v. FEDERAL INS. CO. et al.

No. 105.

Circuit Court of Appeals, Second Circuit.

January 23, 1933.

Loomis & Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for appellant.

Bigham, Englar, Jones & Houston, of New York City (D. Roger Englar, T. Catesby Jones, Martin Detels, James W. Ryan, and Gerald E. Dwyer, all of New York City, of counsel), for appellees.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The libel is by a shipowner to recover the amount fixed as due from the cargo in a general average adjustment for sacrifices made under the following circumstances: The Italian steamer, Ettore, was chartered to Johnson & Turner to carry a cargo of cork from Lisbon to Philadelphia. She was laden in August, 1926, at Lisbon, and the master gave three bills of lading, two to the order of one consignee, the third to that of another, neither being the charterer. When about four days out in a gale of wind, about one hundred and seventy miles south of the Azores, her tail shaft broke just forward of the screw, which dropped off, leaving the ship helpless. It was just after midnight; the master and engineer were asleep, and the cause of the accident was, and still is, unknown. The ship got help from a nearby vessel which towed her to Ponta Delgada, where after four surveys she refitted temporarily, and was allowed to complete her voyage, which she did. At Philadelphia she claimed a lien on the cargo for general average, and the respondents guaranteed payment in consideration of its release. Adjusters were appointed who made a general average statement, the amount of which is not in dispute, and which found the share of the cargo for the expenses of salvage and temporary refitting at Ponta Delgada to be something more than twenty-three thousand dollars, which is the subject of the suit. The principal issue was as to the seaworthiness of the ship when she broke ground at Lisbon; much evidence was taken in and out of court, and the judge found that the burden of proof, as the case stood, was on the ship, and that she had not carried it. He also found that the screw had not struck anything afloat, and indicated, though he did not expressly find, that she was unseaworthy in three particulars: she was not in proper ballast; there was a flaw in the metal of the shaft; the shaft was out of alignment.

Nobody knew, or could positively ascertain, whether the screw had struck a floating timber or the like. The hull showed no marks except two slight dents on the plate of the screw box, assumed to be caused by the flukes after the screw had broken off. From this negative evidence the judge inferred that it had not struck anything, and eliminated that as a possible cause of the accident. The gale had been on for about a day, though the wind had been rising for several days before. At least after it had reached its force, the ship was pitching violently, and the screw often racing; it is a reasonable inference that while it was doing so, or more probably upon its submersion, the shaft broke. The issue thus arose as to the fitness of the ship for her duties, upon which a large record was built up. It does not appear to us necessary to make a finding upon the exceptionally baffling evidence before us, but to an intelligent understanding of the case something must be said.

The tail shaft had been renewed in 1916, and withdrawn in 1924, and the ship was overhauled generally shortly before the voyage. We shall assume with the judge that all was done which diligence required to make her seaworthy, except in respect of ballast, and that the only question is whether she was in fact fit. When the broken shaft was unshipped, a vein of dross of undisclosed size was found near its centre, the casting being pro tanto imperfect. A large amount of the testimony was taken as to the effect of this upon its strength. Being in the centre, the libellant urged that the fault did not weaken the shaft, since the torque was least at that spot. A certain finding as to whether this contributed to the result is not possible. The respondents also maintained that the ship was not in ballast, particularly in that it did not appear that the deep tank was filled. The record is silent on the issue, except for a general statement in the log that she was well ballasted, and testimony that the peak and bottom tanks had been filled. The master and first officer said that she was high in the water, and the log, which should have shown her draft, though brought to New York, the libellant did not produce. On the evidence the issue is not proved, but the failure to make proof must count against the libellant.

The most important question was, however, as to the misalignment of the tail shaft, which could have caused the break. Unhappily it is the most confused issue in the record. After the screw dropped off, the engines raced until the steam was shut off, and for some time thereafter. There is an ambiguity in the translation of the Italian depositions which admits as a possible interpretation that this run on mere momentum was for fifteen minutes; but this is so palpably absurd that we accept the possible alternative — fifteen seconds — and conclude that such wear in the bearings as was disclosed at the surveys, could not have been substantially increased after the accident. We also accept the testimony of the engineer, Pinto, that the tail shaft passed through the first bearing forward of the stern tube. While there is other testimony which throws doubt on this, it is not conclusive, and the engineer certainly ought to have known the truth. Thus it seems probable that the tail shaft was running in a worn bearing, which could put it out of alignment. The crank shaft bearings were also much worn, and parts, though possibly not vital ones, were deeply corroded. We conclude that the shaft may have been out of alignment; but, as we have said, we do not find it necessary to go further.

These inconclusive results are all that we need for a disposition of the case. The Ettore broke her shaft in a sea which was not unexpected even in August; gales are likely at all seasons in the Atlantic, and this was at most not more. She should have been able to withstand it, else she was not reasonably fit for the duties she had undertaken, and was therefore not seaworthy. The Silvia, 171 U. S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U. S. 1, 8, 9, 24 S. Ct. 1, 48 L. Ed. 65. That a ship may be reasonably fit and still break down under ordinary strains, may indeed be true, but when she does, it rests upon her to show her fitness. This is well-settled law in suits upon contracts of affreightment. The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 38 L. Ed. 688; The Southwark, supra, 191 U. S. 1, 13, 24 S. Ct. 1, 48 L. Ed. 65; The Wildcroft, 201 U. S. 378, 389, 26 S. Ct. 467, 50 L. Ed. 794. We can see no reason for a distinction in cases of contribution. Some of the language in Klein v. Lindsey, L. R. (1911) A. C. 194, seems to look the other way, but we are not clear just what was the final conclusion. Lord Shaw said that normally the burden was on the cargo to prove unseaworthiness, though the breakdown of machinery soon after breaking ground, coupled with the ship's history, in that case turned the scale. At the same time he quoted with apparent approval the language of the Lord Ordinary below, to the effect that a breakdown under ordinary use shifted the burden of proof back upon the ship. Just what the evidence must be to effect this, we are not clear; nor do we quite understand what is meant by the shifting of the burden. The same ambiguity pervades Broadnax v. Railroad, 157 Pa. 140, 27 A. 412. Apparently, the doctrine there accepted was that a breakdown created a presumption of unseaworthiness which shifted the burden, but if so, it must be confessed that it was scarcely applied. Judge Ward decided flatly that the burden was on the ship in The Lewis H. Goward (D. C.) 34 F.(2d) 791, following the analogy of suits on contracts of affreightment. We reserved the point in Spang Chalfant & Co. v. Dimon S. S. Corp., 57 F.(2d) 965, but we cannot do so here. It seems to us that the rule should be the same as in suits for cargo damage, and that the burden is upon the ship, and remains so throughout. That she may start...