THE GLYMONT
| Decision Date | 01 August 1933 |
| Docket Number | No. 360.,360. |
| Citation | 66 F.2d 617 |
| Parties | THE GLYMONT. UNITED STATES v. AMERICAN TRADING CO. |
| Court | U.S. Court of Appeals — Second Circuit |
George Z. Medalie, U. S. Atty., of New York City (Myron H. Avery, Sp. Asst. to U. S. Atty., of Washington, D. C., of counsel), for appellant.
Bigham, Englar, Jones & Houston, of New York City (Martin Detels and Charles W. Harvey, both of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
In 1919 the steamship Glymont undertook to carry a cargo of nitrate of soda from Mejillones, Chile, to Yokohama, Japan. After refueling at Honolulu in January, 1920, she proceeded on her voyage, but before arrival at her port of destination she ran out of fuel oil and had to be taken in tow by another vessel belonging to the libelant. This libel seeks to compel the respondent to pay general average for such towing services. The charter party under which the respondent's cargo was carried contained the customary provisions known as the Jason clause. The District Court denied recovery because the vessel departed from Honolulu without sufficient fuel oil to meet the contingencies to be expected on her voyage to Yokohama.
This appeal attacks chiefly the trial judge's findings of fact. He found that she left Honolulu with 2,822 barrels of fuel oil. Concededly she purchased at Honolulu 2,647.82 barrels, but how much was on hand when she arrived there is disputed. The evidence on this question was contradictory. The master said that he had on board more than 800 barrels according to his log, but the original log was not produced. The chief engineer testified that approximately 400 barrels remained when the ship arrived at Honolulu. The engineer's log, however, showed but 20 barrels. He testified that the log was wrong because it was his custom to keep some oil "up his sleeve." The vessel was deeply laden, and for this reason, though contrary to the engineer's wishes, the tanks were not completely filled at Honolulu. No record of the soundings of the tanks was preserved, and the second assistant engineer, whose duty it was to take the soundings, died before trial; hence no evidence as to the quantity of oil based on soundings was available. Hesitating to accept as correct the recollection of witnesses so long after the event, Judge Woolsey resorted to the method of determining the bunker oil aboard by a comparison of the vessel's drafts at Honolulu and at Yokohama. By this method he concluded that she had only 174 barrels on arrival at Honolulu, and, adding this to what was there purchased, he obtained the figure of 2,822 barrels as the quantity with which she departed.
It is urged that in any event the vessel must have sailed with at least 3,903 barrels, because her meters indicated that she had burned that quantity between her departure from Honolulu on January 20th and noon of February 12th, when the engineer reported that only 128 barrels remained. But the master admitted that the meter readings were unreliable and that the meter might be tampered with. The respondent calls attention to one glaring error in Exhibit 16, where the meter readings for one four-hour watch show a consumption of 2,990 gallons while the readings for each of the three succeeding watches were but 990 gallons. We do not, therefore, regard the meter readings as conclusive. Admittedly the method of computation adopted by the District Judge cannot give absolute accuracy, but, even if his figure of 2,822 barrels be deemed only a rough estimate and perhaps too low, his conclusion that the vessel departed with insufficient bunkers should not be disturbed. The fact that she ran short of fuel in weather which was not so extraordinary as to account for the deficiency puts upon the libelant the burden of convincing the court that the shortage was not the result of unfitness for the voyage. See Societa Anonima Cantiero Olivo v. Federal Ins. Co., 62 F. (2d) 769, 771 (C. C. A. 2). This burden was not carried. Even if the engineer's testimony were accepted that there were approximately 400 barrels on board when the oil was purchased at Honolulu, the steamer departed with only 3,048 barrels of fuel. This was too little for a winter voyage, as will now be demonstrated.
The distance from Honolulu to Yokohama on the Rhumb line, which was the Glymont's expected course, was 3,445 miles. Distance, speed, and consumption of oil are the factors to be considered in estimating the amount of fuel necessary for a voyage. The master testified that he expected the vessel to average between 190 and 210 miles per day and that the voyage would take approximately 17 days under average conditions. The average daily consumption of oil on the vessel's prior voyages in other seas, disregarding voyages without cargo, was 150.3 barrels per day. If the average speed were 200 miles per day, and the average consumption 150 barrels per day, the minimum requirement for the voyage would be 2,587, and if this be increased by 20 per cent. for a margin of safety, she should have carried 3,104 barrels. Elsewhere in the master's testimony he said he allowed the ship a speed of only 150 miles per day and allowed a barrel of oil for every mile of distance. On this basis she would need 3,445 barrels, assuming that she followed her course with absolute accuracy. The District Court determined that the vessel should have been regarded as a seven-knot ship on this voyage, which would mean 168 miles per day, and he accepted the engineer's estimate that her average daily consumption was 144 barrels of oil. On this basis, the voyage would take approximately 21 days and the minimum requirement of fuel would be 3,024 barrels; and the District Court held that 20 per cent. to 25 per cent. more should be added as a margin of safety.
The finding that the Glymont should be regarded as a seven-knot ship for this voyage is bitterly attacked. She had averaged nine knots from Talara to Honolulu, but on that voyage she had had favoring currents much of the way. On the voyage to Yokohama, her master knew the current would be against her part of the time and expected adverse winds. He was overoptimistic in estimating that she would average 200 miles per day. Capt. De Lien, who had made the trip numerous times, testified that she would meet a strong current and head winds, and estimated that her speed would be reduced two knots below that made on the voyage from Talara. It would serve no useful purpose to answer in detail the many criticisms directed against De Lien's testimony.
It is argued that the court disregarded the...
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