THE JL LUCKENBACH

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: To the Honorable the of the United States Court for the Southern of New York
• Citation: THE JL LUCKENBACH, 1 F. Supp. 692, 1933 AMC 105 (S.D. N.Y. 1932)
• Decision Date: 09 November 1932
• Parties: THE J. L. LUCKENBACH. CALIFORNIA VICTOR DISTRIBUTING CO. v. LUCKENBACH S. S. CO., Inc.

1 F. Supp. 692

1933 AMC 105

THE J. L. LUCKENBACH CALIFORNIA VICTOR DISTRIBUTING CO. v. LUCKENBACH S. S. CO., Inc.

District Court, S. D. New York.

November 9, 1932.

Single & Hill, of New York City (Robert E. Hill, C. Welmore Robinson, and Loring R. Lecraw, all of New York City, of counsel), for libelant.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Leslie De Grove Potter and John J. Heckman, both of New York City, of counsel), for respondent.

To the Honorable the Judges of the United States District Court for the Southern District of New York.

JOHN W. CRANDALL, Special Commissioner.

On May 27, 1931, an order was entered herein referring this cause to me as Special Commissioner to hear the evidence adduced by the respective parties and to report my findings and conclusions thereon to the court with all convenient speed.

Before the commencement of the hearings the parties took much testimony by deposition, the libelant examining 9 and the respondent 46 witnesses. Hearings began on June 13, 1932, and extended until June 22, 1932. Eight hearings were held and 17 witnesses testified. The libelant offered 10 and the respondent 13 exhibits. At the June 22d hearing the case was summed up by counsel. The principal briefs were submitted on July 5th and reply briefs on August 15th. I have attached to my report findings of fact and conclusions of law in compliance with Admiralty Rule 46½ (28 USCA § 723).

Having considered the evidence and the argument and briefs of counsel I hereby report as follows:

The libelant has brought this suit to recover for damage to a shipment of radio receiving sets, talking machines, and parts. The goods were shipped by the Victor Talking Machine Company, a division of the Radio Corporation of America, on the steamship J. L. Luckenbach at Philadelphia, on September 15, 1929, and were consigned to the libelant at San Francisco.

The respondent issued a bill of lading acknowledging receipt of the goods in apparent good order and condition, but upon the vessel's arrival at San Francisco they were found to be badly damaged, due principally to contact with salt water.

The libelant contends that the J. L. Luckenbach was unseaworthy when the voyage began. The respondent denies this and asserts that the damage was due to an error of management for which it is exonerated under section 3 of the Harter Act (46 USCA § 192). The respondent also pleads noncompliance with the claim clause in the bill of lading, and claims the benefit of the insurance on the cargo.

The steamship J. L. Luckenbach is a steel twin screw steamer built in 1919. Her length is 448.9 feet, beam 60.2 feet, and depth 37.8 feet, and her registered tonnage is 5,541 net tons. She has 6 cargo compartments with 8 hatches, the No. 7 and No. 8 hatches leading into the No. 5 and No. 6 compartments, respectively. In the testimony the No. 5 and No. 6 compartments are referred to as No. 7 and No. 8, because of the hatch numbers, and I shall designate them likewise. The compartments are divided into shelter decks, 'tween decks and lower hold.

At the time in question the vessel was engaged in the intercoastal trade between Pacific and North Atlantic coast ports. She discharged eastbound cargo at Philadelphia, New York, and Boston, and loaded westbound cargo at Boston, Philadelphia, and New York, all in the order named.

On the particular voyage the vessel, after loading some cargo at Boston, proceeded to Philadelphia where further cargo, including that of the libelant, was loaded. The libelant's goods were stowed in the No. 8 shelter deck, forward of a slat bulkhead, which partitioned off the compartment into two parts, the after part being a special locker where valuable goods were stowed. The No. 8 shelter deck was completely filled up at Philadelphia and the hatch was closed and battened down. The vessel, after loading the remainder of her cargo at New York, sailed from there for the Pacific coast on the evening of September 18th.

The water that damaged the libelant's goods gained access to the No. 8 shelter deck through a hole in a soil pipe which led through the compartment from the firemen's toilet and shower room situated on the port side of the weather deck and above the after part of the No. 8 shelter deck. There were two toilets, two wash basins, and a shower in this room, with drains leading into the soil pipe. Above each toilet was an automatic syphoning tank which was filled with salt water from the sanitary lines of the ship. The water would fill the tank until it reached the top of an inverted automatic syphon, whereupon it would be syphoned out and the tank would then fill up again. This pipe was made of lead 1/8 of an inch thick, and was about 4½ inches in diameter. It ran under the deck head to the port side of the vessel, making a bend at that point and running down the ship's skin inside the cargo battens for several feet to a clapper or nonreturn valve, at which point the drainage from the toilets discharged overboard at about the 36-foot water mark of the vessel. The pipe was inclosed within a wooden casing where it ran through the shelter deck.

At some time or other — the time being in dispute — the soil pipe became clogged and Owens, the deck engineer, tried to clear it with a brass spring wire, without success. Magnusson, the chief officer, and Houghton, the chief engineer, also tried to clear the pipe with a plunger. Upon investigating, they saw that the water was not discharging overboard, although it was passing through the toilets. They therefore concluded that it must be going into the No. 8 shelter deck and at once shut the water off and ordered the door of the wash room closed and bolted.

When the vessel arrived at San Pedro and San Francisco, an examination showed that water had accumulated in the No. 8 shelter deck to a height of between 18 and 20 inches in the forward end. The water had overflown the shelter deck hatchway, which had no coamings, and had entered the lower compartments. It had also entered the No. 7 shelter deck through four holes in the steel bulkhead separating the two shelter decks, had overflowed the hatchway and gone into the 'tween decks and lower hold. There was damage to the cargo in all No. 7 and 8 compartments. The water, coming into contact with a shipment of soda ash stowed in the forward end of No. 8 shelter deck, had dissolved a large part of it, and crystallized soda ash was found generally throughout the compartments mentioned.

At San Francisco the soil pipe was examined and a hole 5/8 ths of an inch in diameter was found in it at the point where the pipe bent to follow down the ship's skin. A section of the pipe containing the hole is in evidence, and there is no doubt that the hole was punched from the inside. It is conceded, in fact, that the pipe was punctured during the efforts made to clear it.

On the ship's arrival at Puget Sound, the No. 7 and 8 scuppers were all found to be clogged.

1. The respondent, having received the libelant's goods in apparent good order and condition, and having delivered them damaged at destination, has, of course, the burden of establishing that such damage was due to causes for which it is not responsible. Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748; The Rosalia, 264 F. 285 (C. C. A. 2); The Warren Adams, 74 F. 413 (C. C. A. 2).

The respondent, claiming that the damage was due to an error of management, relies on section 3 of the Harter Act (46 USCA § 192), which exempts any vessel within the purview of the act, and her owner, from liability for damage or loss resulting from faults or errors in her management, if the owner has exercised due diligence to make the vessel seaworthy and properly manned, equipped, and supplied.

The act of a member of a ship's crew, in punching a hole in a soil pipe after the commencement of the voyage, is clearly an error of management. See Kalbfleisch Corporation v. United States, 53 F.(2d) 867 (D. C. Mass.); The Touraine, 29 Lloyds List Law Rep. 265; The Rodney, 1900 Prob. Div. 112.

The parties differ as to when the pipe was punctured, the libelant claiming that the act occurred at New York, and the respondent contending that it took place after the vessel left New York. The law is settled that an act of this nature occurring before the voyage begins is not one of mismanagement, but is a breach of the owner's warranty of seaworthiness. See The Newport, 7 F. (2d) 452 (C. C. A. 9); Gilchrist Transp. Co. v. Boston Ins. Co. et al., 223 F. 716 (C. C. A. 6); The Manitou (D. C.) 116 F. 60, 65, affirmed 127 F. 554 (C. C. A. 2).

In support of their respective positions both sides have offered much testimony which is in hopeless conflict. The libelant's testimony consists of depositions of eight members of the ship's crew, namely, Dempsey, second assistant engineer, Burson, third assistant, Owens, deck engineer, Muller, quartermaster, Quinn and Geiger, ordinary seamen, Bray, fireman, and Pagani, oiler. The credibility of these witnesses has been vigorously assailed.

The practice of going into the hostile camp for witnesses has been disapproved in the First Circuit in collision cases (See Palmer et al. v. Merchants' & Miners' Transp. Co. D. C. 154 F. 683, 698; The Teaser D. C. 217 F. 920, 921), but in The Perry Setzer, 299 F. 586 (C. C. A. 2), a cargo case, Judge A. N. Hand, the trial judge, did not criticize the libelant's counsel for taking the testimony of several members of the schooner's crew. He rejected the testimony, however, principally on grounds of bias. While such testimony should, I think, be scrutinized carefully, it cannot be disregarded unless successfully impeached. The Monticello, 17 Fed. Cas. page 646, No. 9,739.

Briefly, Dempsey and Burson testified that on September 17th, the day before the ship sailed, they saw water running out of a tell-tale hole in the bulkhead of the crossover...