Warner Sugar Refining Co. v. Munson SS Line

• Decision Date: 22 July 1927
• Citation: 23 F.2d 194
• Parties: WARNER SUGAR REFINING CO. v. MUNSON S. S. LINE. MUNSON S. S. LINE v. WARNER SUGAR REFINING CO.
• Court: U.S. District Court — Southern District of New York

23 F.2d 194 (1927)

WARNER SUGAR REFINING CO. v. MUNSON S. S. LINE.

MUNSON S. S. LINE v. WARNER SUGAR REFINING CO.

District Court, S. D. New York.

July 22, 1927.

Bigham, Englar & Jones and Roger H. Loughran, all of New York City, for libelant.

Kirlin, Woolsey, Campbell, Hickox & Keating, L. de Grove Potter, and Earl Appleman, all of New York City, for respondent.

GODDARD, District Judge.

Libel filed by the Warner Sugar Refining Company against the Munson Steamship Line for alleged damage to a part of a full and complete cargo, consisting of 20,880 bags of sugar, shipped at Antilla, Cuba, on March 29, 1924, for New York, on the steamship Munamar, operated by the Munson Steamship Line. Cross-libel filed by the Munson Steamship Line against the Warner Sugar Refining Company for unpaid freight on the cargo.

In January, 1924, the Warner Sugar Refining Company and the Munson Steamship Line entered into a contract by which the Warner Sugar Refining Company agreed to ship all the raw sugar manufactured by certain firms in Cuba during the season of 1924 on the Munson Line steamers, and under which contract the Munson Steamship Line agreed to provide steamers to carry the sugar in full cargo lots. After providing for the payment of freight, demurrage, and other matters which are not in controversy here, the contract continued as follows:

"Eighth. All other conditions, in so far as freighting is concerned, shall be in accordance with the attached charter party form under which said sugar shall be freighted; and to the extent that the said charter party form in its terms and provisions does not conflict with the clauses of this contract, same is deemed hereby incorporated in and made a part of this contract.

"Ninth. No claims shall be made by either of the parties hereto against the other by reason of any failure to fulfill any obligation herein, which failure is occasioned by any or either of the following causes, to wit: Act of God, adverse winds, perils of the sea, danger or accidents of steamer or other navigation, restraint of princes and rulers, public enemies, fire, lightning, earthquake, wind, pestilence, explosion or mob violence, crop failure, revolutions, pirates, accidents to machinery or boilers, or by strikes or general labor troubles, latent or other defect in hull, machinery, or appurtenances, or unseaworthiness of the vessel or any craft, provided due diligence shall have been exercised to make the same seaworthy. * * * Nothing herein contained, however, shall be deemed to limit the bill of lading provisions which shall apply after the steamship company becomes responsible for the cargo. * * *"

The charter party included the following pertinent provisions:

"First. The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, except as hereinafter provided as to seaworthiness and latent defects, and shall receive on board during the aforesaid voyage the merchandise hereinafter mentioned.

"Second. The act of God, adverse winds, restraint of princes, rulers and people, enemies, war of any nation affecting this charter party, requisition by any power, fire, pirates, accidents to machinery or boilers, collisions, errors of navigation, and all other dangers and accidents of the seas, rivers and navigation of whatever nature and kind soever, even when occasioned by negligence, default or error in judgment of the pilot, master or mariners, during the said voyage, are always mutually excepted. * * *

"Fifth. Bills of lading on approved form shall be signed without prejudice to this charter, and subject to this contract as to freight, dead freight, and all other conditions, including loading, discharging, demurrage and despatch. * * *"

"Seventh. It is mutually agreed that this charter is subject to all the terms and conditions of and all the exemptions from liability contained in the act of Congress of the United States entitled `An act relating to the navigation of vessels, etc.,' approved on the 13th day of February, 1893. And the party of the first part shall be entitled to all the exemptions from and limitation of liability provided for in sections 5281-5289 of the United States Revised Statutes 18 USCA §§ 21-28 and in the statutes amendatory thereof and supplemental thereto, as if actual owner of vessel. Seaworthiness warranted only so far as ordinary care can provide, and owners are not liable for loss, detention, or damage arising from latent defects existing at the time of sailing. * * *"

The bill of lading, which is incorporated by reference in the sugar contract, provided:

"2. It is also mutually agreed that the carrier shall not be liable either as carrier, bailee, or otherwise, for any loss, damage, default or delay in shipment, transportation, delivery or otherwise, wheresoever occurring, occasioned at any stage of the adventure by fire or explosion from any cause; by quarantine; by wars, hostilities, rebellions, or civil commotions; by giving way, falling, or destruction of wharf, shed, or warehouse; by barratry of the master or crew; by acts of persons not in the employ of the carrier; by causes beyond the carrier's control, perils of the sea, or other waters, act of God, enemies, pirates, robbers or thieves, whether in the employ of the shipowner or carrier, or not; by arrest or restraint of princes, rulers, or peoples; by roit, strikes, or stoppage of labor; by explosion, bursting of boilers, breakage of shafts, any latent defect in hull, machinery, or appurtenances, or unseaworthiness, either of the ship or of any craft or lighter, whether existing at time of shipment or at the beginning of the voyage, collision, stranding, or any other accident of navigation of whatsoever nature or kind: Provided the owners have exercised due diligence to make the ship seaworthy. * * *"

"5. It is also mutually agreed that this shipment is subject to all the terms and provisions of and all the exemptions from liability contained in the act of Congress of the United States approved on the 13th day of February, 1893, and entitled `An act relating to the navigation of vessels,' etc., and anything contained herein repugnant thereto is hereby waived. The carrier does not hereby waive any of the exemptions from liability contained in any statute or statutes, or other rules of law, which may be applicable."

The Munamar was a steel vessel, 367 feet long, built in 1915, and was equipped as an oil burner; she had four cargo holds and four main deck hatches. The engine room was located between Nos. 2 and 3 hatches, and there were cross-bunker spaces on either side of the engine room, which, as the ship was an oil burner, were used for carriage of cargo. At each end of the bunker spaces were doors leading into adjoining cargo compartments. Upon the discharge of the steamer after her arrival at destination, it was found that sugar in Nos. 2 and 3 compartments in both 'tween decks and the holds had been damaged by water, and there were indications of wetting in the port and starboard bunker spaces. The doors constructed to give access from 'tween deck spaces and bunker spaces, and which, it was testified, were supposed to be closed water-tight while at sea, were open and ajar. And the chief officer testified that during the voyage water had run over the door sill into the bunker space, and through it and out into No. 3 'tween deck.

It also appears that there was an iron pipe, about one inch in diameter, leading up from the fresh water tank, in the engine room through the main deck on the port side, somewhat aft of the No. 2 hatch coaming, for the purpose of supplying drinking water, etc., to the crew, and was constantly under pressure, so as to provide a flow of water to the faucet of the pipe, which was about 4 feet above the deck. The pipe was fastened with a bolted bracket where it passed through the deck. The testimony of the Munamar's witnesses is that this pipe was broken off at the deck by the...