THE WILLOWPOOL
| Decision Date | 06 September 1935 |
| Citation | 12 F. Supp. 96 |
| Parties | THE WILLOWPOOL. JOHN W. HIGMAN & CO., Inc., v. POOL SHIPPING CO., Limited, et al. |
| Court | U.S. District Court — Southern District of New York |
Hill & Rivkins, of New York City (Robert E. Hill, of New York City, of counsel), for libelant.
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Michael F. Whalen, of New York City, of counsel), for respondents.
This is a suit in admiralty to recover damages to a shipment of china clay and ball clay.
The libelant is a corporation organized under the laws of the state of New York, engaged in the importing business at 24 State street, borough of Manhattan, city of New York.
The respondents are corporations organized under the laws of the Kingdom of Great Britain, engaged in the business of common carriers of merchandise by sea for hire.
Sir R. Ropner & Co., Limited, operated the steamship Willowpool and other vessels for the account of Pool Shipping Company, Limited, the owner thereof.
All of the jurisdictional facts are conceded.
The steamship Willowpool is a steel-hull steam vessel built in 1925 of 4,815 gross and 2,978 net tonnage (8,060 dead weight), having six hatches, three foreside of the engine room and three aft, and four holds, of which No. 1 and No. 2 are forward of the engine room. In No. 1 hold there are battens running fore and aft up and down the ship's side about 6 or 8 inches apart; one large bilge fore and aft; one tank on the bottom 67½ feet long, capacity 171½ tons of water; two steel collision water-tight bulkheads, one dividing the forepeak tank and the other dividing No. 1 and No. 2 holds; two large ventilators, one on each side, lead into No. 1 hold. The forepeak tank is right in the bows of the vessel and divided from No. 1 hold by said steel water-tight bulkhead, 22' 3" from the stem of the ship, and has a capacity of 162¼ tons of water. The bulkhead separating this tank from No. 1 hold is secured to the ship's side by angle bars and rivets, and the vessel has longitudinal stringers which are connected to this bulkhead by means of steel bracket plates fastened to it with rivets.
Prior to the voyage in question, the Willowpool had taken on about 700 tons of coal at Rotterdam, filled her forepeak tank with sea water, and proceeded, in ballast, to Fowey, England. That crossing occupied three or four days. Her master testified the weather was exceptionally bad, and, according to the chief officer, "the ship was in danger of going ashore off the Maas lightship owing to heavy northwest gales."
Upon arrival at Fowey, the forepeak tank was pumped out and found to be sound and the Willowpool prepared to receive cargo for a voyage to Portland, Me., and Philadelphia, Pa.
The cargo in question was delivered in good condition to the ship at the dock on January 14, 1930, and stowed in the bottom of No. 1 hold. The Willowpool finished loading on January 16, 1930, and left her wharf. She did not put to sea, but moored in the harbor, where between 4 p. m. and 5 p. m. the steamship Levenpool, a sister ship, while shifting berths, came in contact with the stem of the Willowpool, variously described by respondents' witnesses as a "touching," "grazing," or "scraping," and claimed by them to have been insufficient in force to have done any injury to the Willowpool. Nevertheless, her master concluded to have a survey. As there was no Lloyd's representative in Fowey, he called upon Captain John C. Wilson, master of the Levenpool, Captain James Porter, master of the Levenbridge, another sister ship, and John P. Carter, a shipping agent, who examined the Willowpool and gave Captain Bartlett the following certification:
The entry in the logbook reads as follows:
The depositions of Captain Bartlett, Chief Officer Drake, and Chief Engineer Brown of the Willowpool, and Captains Wilson and Porter (Carter's deposition was not obtained) were taken at the behest of the respondents. An entry in a record book kept by Brown (Exhibit A in evidence) reads: "Jan. 16, 1930 left Fowey at 6:30 p. m."
Upon the examination of Brown, there was submitted to him by respondents "an account of coals taken on board and consumed on a voyage from Fowey to Portland, Maine, Philadelphia, New York, Antwerp and Tyne," dated April 19, 1930, and under the heading "name of port and time of sailing from" appears, "Fowey 5:30 p. m. 16/1/30."
The Willowpool put into Louisburg (Cape Breton) for an additional supply of coal and arrived at Portland, Me., on February 7. After discharging approximately one-half of her cargo, the forepeak tank was filled with sea water and she proceeded to Philadelphia, where, upon her arrival, it was found that water had leaked through the bulkhead between the forepeak tank and No. 1 hold and damaged the cargo of china clay and ball clay, the title to which had meanwhile passed to the libelant. The forepeak tank was thereupon tested by filling it with water. Two cracks were found in the collision bulkhead, one on each side of the vessel. They were V-d out, welded, and the bulkhead again tested, when two smaller leaks were found, one on each side lower down than the previous ones. These were repaired in the same manner, the tank again filled with water, and found water-tight.
The contentions of the claimants-respondents are:
1. Due diligence was exercised to make the Willowpool seaworthy, and she was in fact so at the commencement of the voyage.
2. The damage to libelant's cargo was due solely to perils of the sea.
3. The ship's bunkers at the commencement of the voyage were in all respects adequate, and due diligence was exercised in the purchase and examination of the coal.
4. The filling of the forepeak tank with water at Portland constituted an error in management for which under the law the carrier is not liable.
It is specifically urged by the respondents that the cracks in the bulkhead were caused by severe weather conditions encountered amounting to "perils of the sea," thus excusing the ship and her owner under the charter party and bill of lading which incorporates the British Carriage by Sea Act of 1924 and the rules scheduled to and applied thereby.
The charter party contains, among others, the following provisions:
The bill of lading, referred to, contains, among others, the following provisions:
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