The Addison E. Bullard

• Decision Date: 31 January 1923
• Docket Number: 134.
• Citation: 287 F. 674
• Parties: THE ADDISON E. BULLARD.
• Court: U.S. Court of Appeals — Second Circuit

287 F. 674

THE ADDISON E. BULLARD.

No. 134.

United States Court of Appeals, Second Circuit.

January 31, 1923

Hunt Hill & Betts, of New York City (Geo. Whitefield Betts, Jr. and Edna F. Rapallo, both of New York City, of counsel), for appellant.

Everett Clarke & Benedict, of New York City (Herman S. Hertwig, of New York City, of counsel), for appellee.

The libelant is a corporation organized under the laws of the state of New Jersey. The libel alleges and the answer admits the jurisdiction of the court. The libelant chartered the schooner under a charter party dated October 13, 1917, made between it and Horace Porter, managing owner of the schooner and claimant herein. By the terms of the charter the claimant let the whole cargo space of the vessel to libelant.

The libelant chartered the schooner for a voyage from Buenos Aires to New York on the following terms: 'The said vessel is believed to be tight, staunch, strong and in every way fitted for such a voyage. * * * It is agreed that the lay days for loading and discharging shall be as follows: Commencing from the time the captain reports himself ready to receive cargo, accompanied by underwriters' surveyor's pass to that effect, and cost of underwriters' certificate to be for charterers' account. * * * And should vessel not report for cargo on or before February 28, 1918, charterers have the option of cancelling this charter. The dangers of the seas, navigation, and errors, and the negligence of master and crew of every nature, always excepted. This charter is subject to all acts of Congress of the United States, excepting vessel and owners from liability for losses and for damages.'

The schooner was loaded at Buenos Aires with libelant's cargo of 32,809 bags of linseed, and one bill of lading was issued, which contained the following clauses: 'Shipped in apparent good order and condition * * * 32,809 bags of linseed, weight 1,931,468 kilos, marked and numbered as per margin, and to be delivered in the like good order and condition at the aforesaid port of New York (all and every dangers of the seas, rivers, and navigation of whatsoever nature or kind excepted, including the negligence clause), * * * with all other conditions and exceptions as per charter party dated at New York, 13th day of October, 1917. * * * '

The vessel reached New York in October, 1918. On discharge, a considerable part of the cargo was found to be damaged by water. It was stipulated, for the purpose of ascertaining damages, that 2,541 bushels sustained injury amounting to 40 per cent. of its value, and 1,444 bushels injury amounting to 90 per cent. of its value. The fair and reasonable market value of linseed at the time of delivery was determined by arbitration to be $4 per bushel and the damages were accordingly computed on this basis.

The schooner was charged with liability on the ground that the vessel was unseaworthy at the commencement of the voyage: (1) In that several of the crossbeams beneath the 'tween-deck fore and aft of the main hatch were badly fractured and others sagged, thus weakening the sides of the vessel in that part of the ship and causing leakage during the voyage; (2) in that the cargo was not properly dunnaged away from the sides and ceiling and water tank of the ship, and consequently suffered damage from sea water in the sides and the bottom of the ship and from sweating of the water tank; and (3) in that open holes were left in the engine room floor, thus permitting water to flow down on to the cargo stowed underneath.

The court below entered a decree in favor of libelant in the amount of $11,463.78, with interest. The decree was entered on the ground that the vessel was unseaworthy and that the dunnage was inadequate.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The question to be determined is whether the vessel was seaworthy at the commencement of the voyage. As preliminary to the determination of that question, the appellant suggests another. It argues that, as the vessel and her owners were private carriers the burden was on the libelant to make affirmative proof of negligence in failing to make the vessel seaworthy at the commencement of the voyage, and that libelant should prove conclusively that the alleged damage was the direct result of acts for which the vessel and her owners were responsible by the terms of the charter. The libelant, while not conceding that the vessel was a private carrier, contends that the appellant's conception of the law of the case is erroneous, and that, even if it should be held that the vessel was a private carrier, she would nevertheless be bound to show that she was seaworthy in all respects at the commencement of the voyage; and the libelant further claims that it really is a matter of no consequence in this case whether the vessel was a private or a common carrier, as the evidence as to her unseaworthiness is ample to sustain the burden if such burden existed.

It is our opinion that the vessel is not to be regarded as a common carrier, inasmuch as the libelant occupied the whole ship. By the terms of the charter party the libelant was 'to provide and furnish the said vessel with a full and complete cargo,' and the owner and claimant agreed 'on the freighting and chartering of the whole of the said vessel (with the exception of the cabin and necessary room for the crew, and storage of provisions, sails, and cables), or sufficient room for the cargo hereinafter mentioned' unto the libelant. This was sufficient to prevent the vessel from being considered a common carrier. The Fri, 154 F. 333, 83...