The Turret Crown

• Decision Date: 10 January 1924
• Docket Number: 65-68.
• Parties: THE TURRET CROWN (four cases .
• Court: U.S. Court of Appeals — Second Circuit

297 F. 766

THE TURRET CROWN (four cases .

Nos. 65-68.

United States Court of Appeals, Second Circuit.

January 10, 1924

Reargument Denied January 25, 1924. [Copyrighted Material Omitted]

Bigham Englar & Jones, of New York City (D. Roger Englar and Forrest E. Single, both of New York City, of counsel), for appellants.

Kirlin Woolsey, Campbell, Hickox & Keating, of New York City (John M. Woolsey and Theodore M. Hequembourg, both of New York City, of counsel), for appellee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

These four cases were tried below as one and will be considered here in one opinion. The Turret Crown was a turret type vessel, built in 1895. Her gross tonnage was 1,857 tons and her net tonnage was 1,142 tons. She had been equipped as a coal burner, but in 1916 was converted into an oil burner, and made arrangements for the carriage of fuel oil in her double bottom tanks, which were previously used for water ballast. She was employed on the Great Lakes, and some few years previous to the event herein an extension piece was fitted on her rudder. This extension piece was not removed when she was put back into ocean service, and it was on her rudder when she received the appellants' cargoes for transportation. It is said that this extension placed an additional strain on the vessel's steering gear and contributed to the breakdown of the steering engine, which is one of the claims of unseaworthiness.

In October, 1916, she encountered a severe hurricane in the Pacific Ocean while on a voyage from Seattle to Havana. She called at San Pedro to discharge a part of her cargo and recondition, and then proceeded to Salina Cruz, where she was surveyed. Later she proceeded to Jacksonville for fuel oil and temporary repairs. At Jacksonville the oil was found to be leaking from the top of tank No. 2, and during the voyage to New York water and oil appeared above the tops in holds Nos. 1 and 2. It appears that but few-- four or five vessels-- have been converted, when over 15 years old, from coal to oil burners, and the instant case appears to have been the first where there was not an installation of deep tanks, in addition to double bottom tanks. Oil is much more difficult to contain than water. Small leaks in a water tank tend to correct themselves by the formation of rust; whereas oil not only does not cause rust, but tends to dissolve rust, and for this reason it is pointed out that the old ballast tanks could not safely be used for the carriage of fuel oil, unless they were in very good condition.

When the vessel arrived at New York, repairs were made to the top of No. 2 tank, but no repairs were made to No. 1 tank, nor was it examined with care, owing to the fact that it was full of fuel oil. Repairs necessary to No. 2 tank top were not attributable to the heavy weather through which the vessel had passed, but the surveyors, representing both the owners and the hull underwriters, agreed that the damage was attributable to wear and tear. The nature and extent of the repairs to No. 2 tank appear in the survey. She was not dry-docked in New York. After the tank top was repaired, the tank did not leak under the ordinary test. The tanks which leaked on the voyage from Jacksonville to New York were the same tanks which leaked on the voyage involved in this case. No. 3 tank did not leak on the voyage from Jacksonville to New York, nor did it leak on the voyage here involved. In view of the evidence showing failure of the tanks on the Pacific Coast and at Jacksonville, repairs were necessary on account of the wear and tear, and particularly so in respect of these tanks, to prepare them for this trans-Atlantic voyage.

The Turret Crown left her pier in New York on February 19, 1918, bound for Genoa, Italy, laden with a general cargo; but she was obliged to remain at anchor off the Statue of Liberty until February 25th, because of the defective condition of her steering gear. Because of the bad condition of her steering gear and the leakage of large quantities of sea water into her double bottom tanks, she was unable to finish her voyage after proceeding 150 or 200 miles, and on February 28th, it was decided to return to port. She at this time was completely disabled, and drifted about until March 7th, when a revenue cutter took her in tow. She reached Boston under this tow on March 9th. After temporary repairs, she proceeded to New York City, where the balance of her cargo was discharged and permanent repairs effected. The bottom tank tops in Nos. 1 and 2 holds were leaking, and a considerable amount of cargo was damaged by contract with water and oil. While the cargo was on the pier in Jersey City, a portion of it was damaged by flood. After the vessel was repaired, she reloaded with so much of the cargo as the surveyors considered fit to go forward, and resumed her voyage in July, 1918, five months after she originally sailed.

The court below found the ship unseaworthy in respect to the condition of the steering apparatus and her bottom tanks, but held that, by reason of a clause in the bill of lading which exonerated the shipowner from liability for 'unseaworthiness of the ship even existing at the time of shipment or sailing on the voyage, providing the owners have exercised reasonable care and diligence to make the ship seaworthy,' it was not liable. On this appeal, it is urged that the District Court erred, first, in holding that the defective condition of the steering gear decreased, instead of increased, the strain upon the vessel when she encountered heavy seas, and that the defective condition of the steering gear did not contribute to the cargo damage complained of; second, that the court erred in holding that due diligence to make the ship seaworthy was divisible, in the sense that a shipowner who has failed to use due diligence as to one part of his vessel may disclaim responsibility for the defective condition of another part in respect of which he had used diligence; third, the court erred in holding that the owners used due diligence to make the double bottom tanks seaworthy; fourth, that the court erred in denying a motion made by the appellant Vulcanite Roofing Company for leave to amend its libel by increasing the amount of damages claimed; fifth, that the court erred in the dictum of the opinion holding that if there be liability the claim of the appellant Vulcanite Roofing Company would have been subject to a credit of the carrier on account of sums advanced to this appellant by certain of its underwriters.

The bill of lading clause provided as follows:

'It is mutually agreed * * * that the carrier shall not be liable for loss or damage occasioned by * * * any latent defects in hull, machinery, or appurtenances, misfeasance, error in judgment, any act, neglect, or default whatsoever of pilots, masters, or crew in the management or navigation of the ship, collisions and all and every other dangers and accidents of the seas, rivers, and canal, and of navigation of whatever nature or kind excepted or unseaworthiness of the ship, even existing at time of shipment or sailing on the voyage, provided the owners have exercised due diligence to make the vessel seaworthy; * * * nor for land damage or damage * * * by contract with other cargo or sea water; * * * nor for risk of craft, hulk or transshipment; nor for any loss or damage caused by the prolongation of her voyage and/or delay occasioned by any reason whatsoever. * * * '

There are contradictions in the testimony as to the condition of the steering gear, the tanks and the weather. The report of the survey made when the steering gear was examined at Salina Cruz, Mexico, on her voyage to Havana, under the heading of 'Steering Gear and Engine' reads:

'Steering Gear and Engine.-- Located fractures sole plate. Steering engine patched (old sore), but show signs of being strained. All steering chains, port and starboard, badly strained. Found two defective links on port side (section). Fair leads and steering rods look O.K. Relieving spring port side one turn of spiral broken.

'Hand Steering Gear.-- Right and left hand screws apparently bent. Starboard nut fractured and patched. (Looks old sore.) Looks started.'

'Steering Gear and Engine.-- Recommended new sole plat for steering engine. All new steering chains required. Fair leads taken adrift and examined. New pins if required. Relieving spring serviceable, but new one to be supplied and shipped first opportunity.

'Right and left hand screw to be taken adrift, straightened, and trued up in lathe and new nut fitted.'

The only repairs made, according to the evidence, after this and before the voyage in question, were the 'band on sole plate, screw hand steering gear straightened, new spring on steering chain, and chains annealed. ' This did not follow out the recommendations made when the apparatus was examined at Salina Cruz. The bed plate, instead of being renewed, was patched. When the vessel was in New York, she was surveyed by the representatives of her owners and the hull underwriters and underwent extensive repairs. No one looked after her steering engines, and a log entry made July 20, 1918, indicates the steering engine was broken when they were shifting her berth. The deck log records that On February 19th, at 8 a.m.: 'Found steam pipes on steering eng. broken, shore day watchman employed. 11:30 a.m. Cast off and proceeded, c/o two tugs and pilot to anchor off Statue of Liberty, using hand steering gear. ' February 20th: 'Steering gear pipes repaired and steam turned on; found valve chest of same engine broken. 4 p.m. Part of steering eng. taken on shore to be repaired. ' February 21st: '2 p.m. Machinists aboard with repaired valve chest off...