Petition for Writ of Certiorari — J. Aron & Co. v. Mississippi Shipping Co.

Supreme Court brief1959

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. ° , ar . OCT 2 }4 9

} | pi JAMES R. BROWNING. ‘aa |

Supreme Court of the U ana

OCTOBER TERM, 1959 eo) ke

J. ARON & COMPANY, INC.,,

‘ Petitioner

* versus | a \

_ MISSISSIPPI SHIPPING | COMPANY, INC.,

« *

_ PETITION’FOR CERTIORARI TO THE COURT OF AP-

PEALS FOR THE FIFTH CIRCUIT . | \

el | | ees

Eberhard P. Deutsch

Hibernia Bank Building,

New Orleans Ee, Louisiana,

Atjorney for’ Petitioner

Brunswick G.. Deiutsch, a a on .

René H. Himel, Jr., sn < :

Joaquin Campoy,’

Of Counsel

_ CONTENTS. ot

3 re: 3 ) Page

OPINIONS BELOW and JURISDICTION ...:.... 1

_1—.—GUESTION) PRESENTED... -..0fovvesve ones i eee

Ch, Sie cree 3

STATEMENT OF THE-CASE ...:.............055 3.

I fos ices vac se ant sci vg enhance Nes 5

APPENDIX: _ ARS Ree scams sk

ieee TRL a ate ood he

Opinion of the Court of Appeals and Dissent.

ing he ee ele a gure she. « > 1k

Judgment of the Court of Appeals ete eee 31

ai and techie of the District Court 33

TABLE OF AUTHORITIES -

” t : , °

Cases: ‘

Brutus, The, 4 FC 490 (CC Mass.-1815) ...... 7

Caledonia; The, 157 US 124 (1894) ........... ee

Clark's Estate, In re, 17 Cal.App.2d 323, 61 |

PSd 1221" (1908) ....... EP Seer oe 8

Cohn vs Davidson, 2 QB 455 (1877) .......... 6

, Eugene Vesta. The, 28 Fed. 762 — 7 —_

Se es a eas bane wars rues 6,.7

Hartnett vs State, 42 Ohio State 568 (1885) ace"

Herd vs Krawill Machinery Corporation, 359

, US 29% (1959) .......... ee oe: 8

' | Isis, The, 200 US Be ces ys a 7

-~ ' Jenks vs State, 89 Ind. 1 (1872)...........:, 8

_ Newport, The. 7 F2d 452 (CA 9-1925) ..:..... ee i

; o

. -»— Page -

Rona, The, (1884) 31 LT 28, 5 Asp. MLE 259... 7.

United States vs New York & 0. S.S. Co., =. :

Fed. 61°(CA 2-1914) .°.........05.... 6

Willowpool,’ The,’ 12 FS 96 (SD NY-1935), aff'd,

We We POE oc esc ess, eee etes ; 7

Statute:

Carriage of Goods by Sea Act (46 USC 1300-

PRR roger Reine NEB ene eet 2

i oe Sy

Benedict on Admiralty SEA Se te Lee cea aaa ae 6

Carver’s Carriage of Goods by Sea (Tenth , .

Ed. ) (esta ieeeewne ys OE Pree Sata lie lal he 7

+ yes

\ BA

7 .

si'PREME COURT OF THE UNITED STATES. =

OCTOBER TERM, 1959

J. es & sCOMPANY, INC.,

; . Petitioner

- versus

NESSES PPI. SHIPPING COMPANY, IN

oF : _ Resp hdent

PETITION FOR CERTIORARI TO THE COURT OF AP-

, PEALS FOR THE FIFTH CIRCUIT .

|. Pe titioner seeks certicrari to review a. judgment of

the Court of Appeals for the Fifth Circuit, and, in sup-

pert of its peti itien, shows:

_ OPINIONS BELOW and JURISDICTION

The opisicn ci the Court of Appeals has not yet been

reported. That of the District, Court is, reported at 171

FS 184, 1959 AMC 653. Both epinions are ‘printed ‘in .

the Appendix hereto. -

The Court of Appeals rendered its judgment on

August 12, 1959. Jurisdiction of this court lies under

* 28 USC 1254.” " ‘ Soa

QUESTION PRESENTED

ne@tiovel and ey ies question of federal statutory

construction prrsented for review is: ees

Is an ocean carrier, required, iil: the Car-

riage: ‘of Goods by Sea Act, to exercise due

me diligence ° ‘before and at the beginning - of the

' voyage” to make the ship seaworthy, liable, for

cargo damage caused by unseaworthiness oc-

casioned during, a.maneuver at her berth _pre-

paratory to casting off for the commencement

of her voyage?

The Carriage of Goods. hy Sea Aét (46 USC 1300-1315)

exempts ocean carriers from lab: lity for cargo dam.

. age froma num tber of causes, including negligence of

master or crew in the- navigation or management of.

the ship.

Put the carrier is absolutely. -bound to use due dili-

“gence to make the ship seaworthy ° ‘before and at the

beginning of the woyage” - (46 USC 1303(1)(a)).

In‘the case at bar, the’ ship, while being maneuy ered

away from Her -berth to commence a voyage, was

rendered unseaworthy, as thé District Court found, by

‘failure of due diligenée on the carrier's part.

, Without setting aside this finding, the Court of Ap-

peals, ‘Chief Judge Hutcheson dissenting, reversed the

judgment against the carrier, on the ground that the

failure of-due diligence. wornrree after the “beginning

of the voyage”.

“Ali three memipers of the Court of Appeals conceded |

’ that there is no ‘direct, dispositive precedent for the

_ case.

The majority of the court held that the “phrase “be-

. ginning of the voyage’ must be given its literal, teclini- My

’ cal meaning; and that. once the ship has commenced a:

maneuver in connection with her ‘movement away from

_ her berth, the carrier is no longer obligated to exercise

. due diligence.

Chief’ Judge Hutcheson, dissenting, felt that the test

applied by the majority is ‘too artificial to serve the -

substantive purposes of the statute at issue; and that

the ‘carrier’s obligation to use due diligence subsists at

least through the actual undocking: serum.

hidge Hutcheson’s view appears to éxcord better tharr

that of the majority, with relevant expressions by this

court, and ‘by other courts of appeal. The great #m-

portance of a resolution of this question ‘to merchant--

shipping and marine-insurance interests is obvious.

STATUTE INVOLVED —

46 USC. 1303(1)(a): “The carrier shall be bound,

before and at the beginning of the, voyage,. to exercise

due diligence to make the .ship seaworthy.”

STATEMENT OF THE CASE

‘Having loaded cargo at Santos, Brazil, respondent's:

Steamship Del Sud was made ready for sea.. She ‘singled

4 .

up her mooring lines, and a “Tocal pilot came. aboard. to .

unberth the vessel. A tug made up to her starboard ,

quarter, to Swing the ship's stern away. from the dock

into the’ channel.

The vessel’s stern mooring, and some other, lien but

not her. bow spring line and her breast ‘line, were cast

off. The bow spring and breast lines held .the. bow of

the vessel fast to the wharf as‘her_ stern was } Swung

out by the sal : “i.

During this maneuver, while the bow and breast lines .

remained fast to the dock, the ship’s forward quarter

rolled against the concrete facing of the wharf, causing

a 12-ineh fracture in a shell plate at the wereet Ss bow.

The District Court found, on. competent eviderice, that

the jar of the fracture was felt throughout the ship., and

_ that both the chief engineer and the master were sicdaaie |

of it. ae

The District Court held that the failure to _inspect

__ the results _of the blow, and to repair -the fracture.

; _ constituted: want of due diligence on the. carrier’s part

to make the vessel seawarthy;- and this finding “was -

ing accepted by the Court of ' Appeals.

No such inspection was “made, and the ship onion

_undocking, and ‘then departed on her voyage. Seawatere .

_ entered the fracture in the hull, and - damaged cargo.

Cargo .interests ‘brought this suit in admiralty, to re-

cover "their damages. 28 USC 1333.

_The District Court entered. judgment in favor of the

cargo interests, onthe ground’ that the want of due

diligence had occurred ° ‘at the beginning of the voyage”.

The Court of Appeals reversed, on the ground that

- the failure. of due diligence had occurred after the

“beginning of the voyage” , when ‘the carrier’ ¢ obligation.

in that regard was no bie sa in force. .

Chief Judge Hutcheson ileus ond favored affirm-.

- ance of the opinion and judgment of the District Court.

ARGUMENT —

No light is cast by legislative bimeey on the meaning |

of the -phrase,+“before and at the ‘beginning of the

' voyage”, in the statutory provision establishing the car- .

rier’s obligation to uSe due diligence, during that period,

to make the ship seaworthy. :

However, the phrase is found not only in the United

. States Carriage of Goods by Sea Act, here at issue, but”

also in the rules adopted by most of the world’s mari-

*time nations at the ‘Hague Conference of 1921 and the’

Brussels Conferences of 1922 and 1923, and. by the imo _

plementing statutes adopted by all leading. maritime a

nations. shee

Commencement of the voyage is also an important’

- concept in the marine-insurance field. “The cargo-owner

warrants to his underwriter that the insured cargo will

_ be shipped in a seaworthy vessel. The.courts, both in

this country and in England, have recognized the inter-

relation of the warranty of carrier to shipper, anal a

Lf”

shipper to .underwriter.' :

There are a number of expressions in opinions ate

texts discussing both the American and English Carriage

of Goods by Sea Acts, as well as the concomitant .con-

- cept of marine insurance law, which may reasonably be

supposed: to express correctly the: legislative intent as

to the proper constructior of the statutory - phrase ' at

‘issue. :

The Ccurt of Appeals for the os Circuit has

‘declared authoritatively that the legislative purpose, in

cutting ‘off the carrier’s due-diligence obligation after the

‘beginning of the voyage”, was “to relieve the ship-

owner who has’ done- all that he can do to start off a

well-fitted expedition, from liability for: damages caused

_by faults or errors of his shipmen -after. his ship has

zone below the horizon and away from his persona] ob-

servation”. United States rs New York & O, S.S. Co.,

"216 Fed. 61, 72 (1914), quoting from Benedict on Ad-

miralty, Section 229. 7

This court has similarly stated that the ‘scheme of the

_, exculpatory _ statute is, that the carrier is liable for

' See The Caledoni ia, 157.US 124, 131 (1894): °“The undertaking’

as to seaworthiness of the shinowner to the ee. is co-

- extensive with that of the shipper to. his insurer’: The

Eugene Vesta, 28 Fed. 762, 763 (ED Mich. -1886): ‘The

theory of, the law is that the’ implied warranty of seaworthi-.

ness shail protect the owner of the cargo until his policy

‘of insurance commences to run: and, as it-is well -settled

- that the risk under the policy attaches only ‘from the time

‘the vessel breaks ground, this is fixed as. the aw up to

which the warranty of seaworthiness extends” Cohn vs

/ Davidson, _— 2 QB 455. 461.

want of due diligence, while the ‘ship is subject to the

owner’s supervision from shore, but not while she ig

-in the sole management of her master. end crew. The

Isis, 290 US 333 (1933). "£0

.The traditic nz] rule, first vapreress by Justice Story.

'_ is that “the voyage commences when.the ship breaks:

ground (i.e., is «physically separated from, her contact

: with the shore) for the purpose of.departure”. Tie.

Brutus, 4 FC. 490, 495 (CC Mass.- -1815). Sea also These

' Eugene Vesta, 28 Fed. 762 (ED Mich.-1886).,

In The Willowpool,-12, FS 96,100 (SD NY-1935), aff'd,

86 F2d 1002, the ccurt stated that “a voyage commences

only when the ship breaks ground or leaves her moor-

ings in: complete readiness sie sailing ae proceeding to.

”

‘sea .

_The Newport, 7 F2d 452 (CA 9-1925), involved: an in-

_ cident which, like thet at bar, occurred after ‘the ship

was ready for. sea, the assisting tug had made fast

alongside, and the local pilot had come on board... The

carrier was denied exoneration because ‘‘the vessel’s

lines were not loose - and the voyage had net com-

menced”.

Similarly, Carver ‘states that, under English law, the

voyage commences “when the ship starts from whatever:

~ were her moorings”. Carriage of Goods by Sea (Tenth

Ed: ), 86, citing The Rona (1884) 51 LT 28.

| ie the instant case, the want of due diligence occurred

while some of the. ship’s lines were stil] fast. So far

from being beyond her owner's shore supervision imue: *

less “below the: horizon and away from his personil

observation”), she was still -tied up to | the dock.

So far from having severed her phy sical contact with

the shore, the unseaworthy condition resulted from the

ship's rolling against the concrete facing of the wharf

while she was in the very, act of making ready to * ‘break

_ ground”. 7 ;

Nevertheless. the majority of the Court of Appeals

‘absolved the carrier ‘by giving to the peeeery phrase,’

“before and at the beginning of the voyage” . SO narrow

and technical a construction that it cuts off the carrier: "S

Obligation to exercise due diligence at’ the moment. the

a ship begins preparations for her outward movement,

notwithstanding the fact. that she. is_still physically tied

to the dock, completely within her owner's ne super-

vision and control.

This” exonerati on appears to be in. clear conflict. with

the meaning given to the statutory phrase by this .court.

and by courts of appeal other than that for the Fifth

Circuit, particularly ‘in light of this court’s recent hold-

_ing that the exculpatory statute involved is in deroga- -

tion of the common law, and must be construed strictly

* White ‘his: is 9 noint . for arcu: ment on the merits. it. should he

noted that tho cscrier's due- diligence obligation subsists not

only “before”... but also “at”, the beginning of the voyage.

The word wae" “te very commonly used . . . in the sense

of ‘during’ "’ Jenks rs State, 39 Ind. 1, 9 (1872). See also

In re Clark”: : Est ate. 17 Cal.App.2d 323, 61 P2d 1291 (1936) :

Vert; nett * $ State, ™ Ohio State 568 (1885).

| i

9 =

against the carrier. Herd vs Krawill Machinery, Cor-

poration, 359 US 297 (1959). —

The tact that the dissenting judge's views seem to’ ac>

cord’ with the expressions of other courts of appeal, and -

of this court, points up the extent of the conflict credited

by the majority’s holding below.* .

Since the statutory phrase at issue-fixes the liabilities

cf ocean carriers in international trade under the Ameri-

can and foreign Carriage of Goods by Sea acts and the

Hague Rules, and of cargo .underwriters under wel!l-

established and long-standing principles of marine in-

surance law, resolution of the question raised by the

divided decision of the Court of Appeals. is of great

importance. | . _

“As IT see it. the real question is, had the ship left the port

of loading, in the legal sense that the voyage had actually

begun, the ship’ was no longer in port, and its fate was -no

longer in® the’ hands, and under the contro!, of the shore

personnel, but under the control and in the hands of the —

master. Looked at, as I see it, the law of this case is that

the determining question is not how many lines had been

cast off and’ whether the ship had or had. not begun the

maneuver of getting away from the dock, Lut whether the

evidence supports the finding and conclusion of the district

judge, that semething occurred to make the ship unsea-

“+ worthy while it was still im port and, therefore, within the

potential centro! of the shore personnel”. Chief Judge

Hitehescn, dissenting. post, pp. 26-31.

10 a |

It is respectfully submitted that ‘the case is an ‘ap-

propriate One for‘ exercise of this / court's certiorari

jurisdiction, ° e ot

Eberhard. P. Deutsch;

Attorney for Petitioner

Brunswick G. Deutsch,

Renée H. Himel, ,Jr.,

Joaquin Campoy,

Of Counsel |

September, 1959

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cep ~<a eres APPENDIX

| OPINION OF THE COURT OF APPEALS AND DIS- ,

, - SENTING OPINION . ae

; BROWN. Circuit Judge: This case presents important

_+ questions under the Carriage of Goods by. Seas Act

“ (Cogsa. 46 USGA $$1300-1315." The. principal question

. is whether cargo damage, in a legai sense, was caused

. by an “Act. neglect, or defauit of the ‘master * * * or

the servants of the-carrier in the navigation or in the

management of the ship.” for which liability is excused

_” py Section 4(2)(a)-of Cogsa. or was “caused by want of

» due diligence on the part of. the carrier to make the ship

seaworthy * * * in accordance with the provisions of

paragraph (1) of Section 3" for which liability remains

under Section 4/1).° This in turn depends largely on

oa ey ae |

1 Cogsa was originally enacted in $$1-16.. Sections 1301-

1309 correspond to original $$1-9. and $$1310-1315 corre-

. spond to. original $$11-16. The original sections are used

throughout this opinion. but may be readily found in 46

USCA in this way.

2 The pertinent sections of ‘Cogsa are these. :

“SEC. 3. (1) _ The carrier shall be bound. before and

‘at the beginning of the voyage to exercise due diligence.

(a) ‘Make the ship seawo thy:

“(b) Properly man. equip. and supply the ship;

“(e) Make the holds, refrig. wing ind cooling cham-

; bers, and all other parts of the ship in whick goods are

we carried, fit and safe for their reception, carriage. and pres:

ervation. °

. “(2) The carrier shall properly and carefully load..

handle, stow, carry; keep, care for. and discharge the goods

carried.” 46 USCA $§1305. a

“SEC. 4(1) Neither the carrier nor the ship shall be

liable for loss or damage ‘arising or resulting from unsea-

worthiness, unles3 caused by want of due diligence on the

part of the carrier. to make the ship seaworthy, and . to

secure thaf the ship is properly manned, equipped, and sup-

plied, and to make the holds, refrigerating and cool cham-

4% Aas 12 : ton

» Whether, at the time of the physical event damaging the

Vesse] and later the cargo, the voyage had commenced. ~

‘Lhe case also’ points up the sharp distinctions: between, —

Cogsa and the Harter Act, 46 USCA $$190-196, while,

ut the same time. the great similarities of the two Acts.

The facts, set forth in great detail in post-appeal find-

“ings and conclusions, have been reported, Steamship De!

Sud, E.D.La., 1959, 1959 AMC’653, and need not be re-

peated here. Those fact or legal-fact conclusions which

we resect under the amphibious clearly erroneous ‘con-

cept cf McAllister r. United States, 1954, 348 US. 19.

79 S.Ct. 6. 99 LEd: 20. 1954 AMC 1999. we discuss

separately. : Hes [

The éargo damaged was principally: coffee loaded in

No. 2 lower hold of the SS DEL SUD at Santos Septem-

ber 9 and 10, 1952, and a few cases of corned beef

‘previously Icaded in No. 2 lower tween deck at Monte-

vidéo and Buenos Aires on September 2 and 5. The

vessel arrived hext-at Rio de Janeiro at noon September ™

11 departing that night for Curacao, B.W.I., and thence’

her discharge port cof New Orleans where damage was_

discovered for. the first. time. Only Santos and pre- .

Santos cargo is involved. — : .

bers, and ‘all other parts of the ship in which goods are

carried, fit and safe for their reception, carriage, and pres- ©

ervation ia accordance with the provisions of paragraph (1)

. of section 3. Whenever loss or damage has resulted from

unseaworthiness, the burden of proving the exercise of due .

diligerice shall be on the carrier or other persons claiming

exemption under this section. — : ;

‘(2) Neither the carrier nor the ship shall be responsi-

ble for_loss -or damage arising or resulting from—

-. “(a) Act, neglect; or default of the master, mariner. -

pilot, or the servants of the carrier in the navigation or in

the management of the ship: * * *." 46 USCA §1304.

It is) now without dispute: that sea water entered. 4

th: “ough a 12-inch fracture in the bow shell plate just

below the lip of overboard discharge svil life which

- protruded about 2 inches outboard of, the surface of

the hull plates. The fracture Was caused by the pres-’

sure of the ship's. weight bearing on this smaii. pro-

tuberance in momentary contact against the concrete

face of ; the «dock which, imperceptibly but now signifi-

cantly, inclined at an angle of. 7° 35’ toward the vessel...

| The hip or drip pad of the overboard discharge line,”

at the vessel's loaded draft. was then ‘about 2 feet”

above the water level and some 4 feet below the level:

of the dock. This was at the flaring contour of the -

“bow so that the shell plati ng was ina plane in the shape -

of a spheroid. Contact between the dock and the ship's,

port bow was an intentional part of the traditional and

purposeful maneuver of simultaneously undocking and

turning the vessel around 7” departure from the port of

Santos. a

At 2133 hours September 10, the vessel, ‘moored -as

customary. port side to the dock; was made ready for

sea and for her customary maneuver away from the

dock. She singled up her mooring lines and a local ©

- Santos pilot came aboard to unberth the vessel. Her

engines .were put on stand-by at 2157 vhours. The Tug

‘ NEPTUNE made fast on the starboard quarter with a

hawser in order to sw ing the stern of the DEL SUD

away from ‘the. dock out into the channel to permit he

to turn about in a counterclockwise manner. ' By 2208\

hours the stern mooring lines and all lines other than

the bow. spring line and breast Jine were cast off. The

14 $$ _—___—

dock in order to hold the port bow at the dock while

the-stern was ‘brought éut into the channel by’ means of

the Tug NEPTUNE hauling on the hawser at right angles

to the vessel.’ Between: then and 2214 hours the ship's

‘engines were maneuvered at various speeds, At 2214

hours the engines were put ful} astern and at that mo-

ment the two remaining lines were cast off. It was

during these maneuvers .between 2208 and 2214 hours

that the port shell plating of the DEL SUD, : just for-

-ward of the point where the curvature of the hull begins

at No. 2 hold, rolled in contact with the concrete facing

of the dock. This was in accordance with the plan fol-

lowed by the DEL SUD and her sister ship on many

previous occasions on departing from Santos.\ \ The frac-

ture resulted because the drip pad lip, from the \peculiar

combination of water level draft’ and trim, happened

was itd against the concrete dock.

_bow Spring line and breast tine were held fast to a

.momentarily tc. take the full force of the vessel as she .

“I\is ate bertain that as the DEL SUD left the Port:

of Santos shy bore an open wound in a cargo space.

She ‘was, therefore, unseaworthy in fact. The ship-

“owner contends that: this unseaworthiness was caused,

and therefore excused, by a Section 4 act or error in the

management. \or\navigation of the vessel. Cargo does

not really dispute this. For Cargo agrees that, unlike

the former day8 ‘of the Harter Act when its Section

3 (46 USCA §192)\error in management exception was

confined to events decurring after the commencemer: t of ,

the voyage, The Newport, 1925, 9 Cir., 7 F.2d 452, 1925

AMC 1193:/The J. L. Luckenbach, 1933, 2 Cir., 65 F. F.2d

c.s

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SSS 7 Seem pe a fi

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570, 1933 AMC 980, affirming I F.Supp. 692, 1933 AMC

105, Cogsa’s Section 4(2)(a) is now unconditional bot:

as to due diligerice and in point of time. The John

Miller (Isbrandtsen Co. v.. Federal Insurance Co.), 113 ~

F.Supp. 357, 1952 AMC 1945, affirmed per curiam, 2.

__Cir., 1953, 205 F.2d §79,. 1953 AMC 1033. Gilmore &

Black Admiralty, Ch. II], Part II, 119 et seq.. esp. £§3-

25, 3-29, 3-30 (1957). Consequently “had the Santos —

: coffee been immediately damaged by the inrush of.

- water, the Section 4 defense would have been absolute

whether the ship was deemed to be on her voyage,

making ready for her voyage, - Or simply undock: ing

pteparatory to commencing hér ‘voyage.

What Cargo contends—and - has , so far successfully

maintained—is that the unseaworth: ness resulting from

the act or error in management and navigation existed

prior. to the time: the’ voyage commenced, and that. con-

sequently there. was a failure to perform the Section

3 duty to exercise due ‘diligence “before and at the be-

ginning of the voy age” to make the ship seaworthy. Cf. |

The Newport. (G. Amsinck & Co. oF Pacific Mail Steam-

ship Co.). 9 Cir.. 1925, 7 F.2d 452, 1925, AMC 1193: and

‘see Knauth, Ocean Bills of Lading 202 ( 1957}. On this

ayproagh the Cogsa Section 4 exemption is lost, not

because the event occurred prior to the commencement

of the voyage, but rather because the result of it. fully

manifest before the commencement of the voyage. made

the ship unseaworthy. Of course, an’ ingredient in that

thesis is that the master knew, or ought to have known,

of the damage to the DEL SUD while the vessel was yet

-_~§—_16__+_—__ re

In Santos so that his failure to inspect and repair-was a<

want of due diligence. If the main premyse is correc

—that is, the. noncommencement of the: voyage. a} ne,

owner would bear the consequences of the master's

fatiure since the duty to exercise due diligence rests

— all and -is nondelegable. International Navigation

(C8. v. Farr & Bailey Mfg. Co.. 1901, 181 U.S. 218. 2)

S.Ct. 991. 45 ‘L.Ed. 830.

Tite factual basis for this theary comes down to-the

proposition that the voyage could not yet have com.

rmenced because the vessel was still partly at the dock |

ince al breast ‘and spring line were-still made, fast.

Support 6f a lezal nature to that. highly: artificial aj.

— is thought to be found in the Section 3 phrase

before and.at:the e beginning”. of the voyage, as though

blending these two: prepositions expands a’ “beginning”

from some precise. moment to a sort of continuing

transitional State.

The use of oheten and at’ does not. make the com.

mencement cf the voyage— henever it is—any less a.

beginning. When the’ voyage begins, ‘it is the voyage,

and not the beginning of it, which continues. ~The duat

-reference’ is to make doubly. sure that with respect to

cargo then being loaded the vessel must be seaworth

at the time: of the receipt of cargo and must. ‘continue

in that state‘until the ship sails. That the duty reaches

backward from commencement. does not make it reach

‘forward, as the Act prescribes that the laté8t point of

performance is at the beginning. The voyage must have

some place (arid time) of beginning. After that, it is.

not the beginning, ‘but’ the voyage itself: ‘which tran-

spires.

as ea a a :

In the light of these ‘principles a‘ majority of the. -

Court. therefore concludes that the voyage had. com-

~menced at the ii ime the ‘wound to the ‘ship's side was

; ‘sustained, i: :

We need’ but briefly indicate our’views. In-a very

rea] sense the voyage had. begun. The ship had no

further purpose at the dock. _ She was made ready for

‘sea. She ‘was being turned around {cr the purpose .of —

leaving. The Jinés to the dock were fest not to keep

her there, cr to continue her stay at fhe wharf. They

were there sclely as an essential step in her naviga-

‘tional: maneuvering. ‘They were nc less’ vital.than the.

_bawser to the straining tug. ‘off the starboard quarter.

The ship’s engines: were actively maneuvéring “to ace’

complish the swing:and officers and men were ‘stationed

‘for simultaneous undocking and departure. The ship

was literally and figuratively in the sole command of. °

; the master cn the bridge. ate =

That this may pose: scme conceptual diffigulties | in,

suppositicus cases is not significant. By its nature the

problem nmiust .be one of fact, resolved: on they peculiar

facts cf the ‘specific episode. Just where, shdrt ‘of the

combinaties of facts presented here, the vovage must be ©

deemed not to have commenced, we need not determine.

. /The fact that in our research, and that of the skilled

‘advocates in this cause, no one has found ja case like

this one attests that in the two and one-half decades. of

Gogsa, and nearly. seven of the Harter Act, there has

been no compelling: need for an. abstract statement of

the oe in point of time or place..' .

We see nothing " édhtrary #0 Our conciusion in Tine

“Wil lowpool (John W Higman &-Co. w.° Pool Shippin,

‘Co.j, S.D.N.Y., 1935, 12 F.Supp. 96, ine AMC 12.

The ship there, uniike the DEL SUD whose purpose: Wu.

“to swing’ and continue “uninterruptedly out of the Port

‘of Santos, toward Rio de Janeiro, shifted from a dock

‘to a, mooring berth, during which time ‘the collision

damage. was’ sustained. When. she Iater departed on

her vovage w hich thew began for the first time she we

/ unseaworthy. What we ‘decile is consistent with .5¢

, ancient observation of Judge Story that: ee tho yar

age commences Ween the ship breaks gsound for t:

“purpose of departure * *.*. . The Brutus, C.C.D-Ma.

i815. 4 Fed. :Cases 490, 495. (No. 2060); and see also

The Buckingham (Steamship Buckingham Co. rv, Parts’

Transport Co.); E.D.Pa., 1904, 129 Fed. 975, 976: Steam.

ship’ Wellesley v.<, A. Hooper & Co.. 9 Cir., 1911.

185 Fed, 733. 722.-

-Onee it is determined that the hole in the ship's side

occurred after the voyage had begun within the meaning

of Cogsa Section 3. the failure” of the master to inspeyt

and repair damage at Santos was likewise an error i»

navigation and management and also excused under

Section 43, . This makes it unnecessary for us to pass

upon the findings that by reports the, master received

: from the’ engine room, which he ignored or rejected.

and sensations of a collision felt by others on the- vessel,

'n the same -aleiaainans is the: charge and finding that

more, or different .fenders should have .been ‘used. We

_ . regard, the findings clearly c-erroneous whith hold substan-

. ‘tially that the plan to undock and swing the ship by rollin’

~ cher bow against the dock made damage inevitable. so that

the shin wis unseaworthy by. contemplating that manenver,

b or doin: 20 i7 her then trim and drift.

the master ought to have known that the impact against

the dock was extraordl: 1arily severe and likely. caused

‘damage. ~

But we must consider further the activities at Rio de

Janeiro. “On this short voyage (arriving Rio noon

September'11, ‘departing late that night), the No. 2 bilge

showed 5 inches of. water iat 0800 fours September 11.

The bilges were previously dry. During her brief stay

‘there. the bilge showed 10 inches in No: 2. In ret-

rospect. especially in ‘light of’ the bilge soundings

- running as high as 24 inches on the voyage from Rio to

Curacao, it is ‘likely. that the, water then in the bilges

at Rio had. come in through the fracture of the hull,

But the ship officers.- unaware of this’ fracture, con-

cluded that the five and ten inch- soundings on Septem-

ber 11 were due to heavy rains at Santos. Cargo argues

that with the soundings on September: 11, plus what he

ought to have known from the occurrence of the night

before at Santos, the Master was charged with knowl-

edge -ef what he would have seen had a close inspection .

of the bow near the waterline been made. - Consequent-

‘ly, it is urged, there was an independent failure to ex-

ercise due diligence to make the vessel seaworthy prior

to departure from Rio regardless of the origin of the

initial hull damage. The contention is indeed a relevant

“one. since it seems overwhelming from the bilge sound-

ings that-it was the working of the vessel in the seas

after departure from Rio that caused the entry of sub-

oe stantial amounts of sea water into No. 2 hold. In point

of fact it was more important. to close up the hole at

Rio than it had been at Santos.

But at Rio, as Cargo frankly recognizes, the duties

‘were quite different. As to Santos, Montevideo and’

Buenos cargo, ‘the voyage had long. since begun. With

respect to each of those cargos ‘ ‘the time which should

be considered the comméncement of the voyage, when

the vessel should have been placed:in a seaworthy con-

dition” has been’ stated in’ the -Simplest and plainest

terms by the Second Circuit in The Walter Raleigh

(Union Carbide & Carbon Corp. v. United States), 2 Cir:

1953, 200 F.2d 908, 1952 AMC 618. “The precedents and

‘reason leave no doubt that as to a particular cargo it

should: be when that cargo is: lifted * 7, ‘The South. ,

wark, 191 U.S. 1, 13, 24°S.Ct. 1, 48 L.Ed.. 65; May vr.

Hamburg-Amerikanische Packetfahrt Aktiengesellschaft,

' 290. U.S. 333, 342,.54 S.Ct. 162, 78 L.Ed. 348; The Presi-

dent Polk, 2 Cir., 43 F.2d 695, 696, 697; The J. L. Luck-

. enibach, D.C.S.D.N.Y., 1. F.Supp. 692, 707, affirmed 2 |

Cir.,-65 F:2d 570.” See also The Havana (Atlantic Gulf.

& West Indies S.S.Line), S:D.N.Y., 1942, 45 F.Supp.

244, 245, 1942 AMC. 595; The Oritani (Atlantic Fruit

Co.), D.C.Pa., 1929, 40 F.2d 522, 1930 AMC 230, af-

firuned, 3 Cir., 1931, 54 F.2d 1075; ‘The Steel Navigator,

2 Cir., 1928, 23 F.2d 590, 1928 AMC aes Gilmore & Black,

ae Admiralty 130 (1087).

At Santos, and at Montevideo and — Aires, the

-Master stood as any other servant of the shipowner and

any failure to exercise due diligence to make the vessel

seaworthy with respect to cargo loaded at’ each respec- .

tive’ port would be chargeable to the owner. But at

subsequent ports and. with respect- to cargo previously

loaded, the acts of the Master {and crew members) are

those of management and navigation exctsable under

‘Section 4 unless, as is not the case here, the particular,

activities are those concerning the care, custody, receipt

and ‘delivery of cargo under the principles discussed in

The Germanic (Oceani¢ Steam Navigation Co. y. Aitken), .

1905. 196 U.S. 589. 25 S.Ct: 317, 49 L.Ed. 610; The

Titania (Leon Bernstein Co.” 9. Wilhelmsen),-5 Cir., |

1956, 232 F.2d ‘771. 1956 AMC. 754. Knauth, ‘Ocean ~

Bilts of Lading’ 196-298 (1953);.Gilmore & Black, Ad-

miralty $3-29 (1957).

Thus, in an eariy case Judge Addison Brown de-

clared that failure to make repairs at an intermediate

-nort was an error of management. “If any error was

committed in this respect, I think it’ was an error of

.judgment. It was an error, moreover, pertaining to the

‘management’ of the ship; since the question arose after

| the voyage’ had commenced at a port of distress, far

from the home port, and away from any supervision by

the owners, and was. wholly subject. to the, master’s

determination.” The- Guadeloupe, S.D:N. Y., 1899, 92.

Fed. 670, 671. This case was cited with approval in

United States v. New York & O. S.S. Co., 2 Cir:, 1914,

216 Fed. 61,.71-72.. cert. dismissed, 1915, 238 U.S. 646,

35 S.Ct. 794. 59 L.Ed. 1504. “But. it seems’ to us that, _

the vessel being seaworthy when she began her voyage,

the failure to make inspection at an intermecliate port, |

_if such an inspection. ought to have been made, must

be regarded as a fault in management of the ship under

the third section of the Harter Act. The Guadeloupe,

(D.C.) 92 Fed. 670 (1899).” The court there gave its

approval to the dramatic language then contained in

. he aa

-. Benedict, Admiralty §229, that the Harter Act was ‘in-

- tended to relieve the shipowner who has done all that

he ¢an to do to start off a well-fitted expedition, from

- liability for damages caused by faults or errors of his

_shipmen after his ship has gone beiow the horizon ay

away from his personal observation.” 216 Fed:* 61,

_Much the same was repeated in The Milwaukee a.

2 Cir., 1928, 26. F.2d 327, 330, 1928 AMC 1063. “More-!

_ over, such’ an. act as failure to inspect the hold at St.

Thomas, even if negligent, has been held by this court

to be a fault in management of the ship, excusable un-

der Section 3 of the Harter Act.”

This principle, indeed these very cases, received the

express approval of the Supreme Court in The Isis ¢May |

v. Hamburg-Amerikanische Packetfahrt Aktiengeseil-

schaft), 1933, 290 U.S. 333, 345, 54 S.Ct. 162, 78 L.Ed.

348, 1933 AMC 1565. “If the management of the ship

‘is. in. the hands ‘of master and crew, he [owner]. will

be relieved cf liability: for supervening losses, provided

only that. his [owner's] own duty has been fulfilled at

the beginning: If the term of management is over and

the ship is in his hands again, the duty is renewed.

“The question then is when management begins and

ends. * *.* Upon arrival at a port of call, the master

_ is negligent in his inspection’of the ship or its equip-

ment. Liability for the damage will not be chargeable

to the owner, for this again’ is.a fault of management.

The Steel Navigator (C.C.A. 2d) 23 F. (2d) 590; The

Milwaukee Bridge (C.C.A.2d) 26 F. ( 2d) 327, 330; United

_ States v. New York & O.S.S. Co. (C.C.A.2d) 216 Fed.

. 23

61, 71; Juy Wai Nam v. Anglo Ameriwan Oil Co. (C.C.A.

Gth) 202 Fed. £22; The Guadeloupe (D.C.) 92 Fed. 676.

Cf. Carver cn Carriage by Sea, 7th ed. § :03e, collating

the decisions.”

-‘'Pne Court speiled this out in more detail, “If the

master of the Isis had acted cn his own responsibility

at Bremen ‘in sending the vessel on, the fault would

have been: — in management, or so we may “as-

sume. But that is nct what happened. The owner in-

tervened by its marine superintendent, who: was -sent

from Yamburg ic Bremen to inspect the disabled vessel |

and determine what to ‘do: ' He consulted with the mas-.

ter and others. ‘The decision in the end was his. *.° .

if reasonable diligence would have show n that the ves:

sel was urseaworthy when he sent her on her way,

there was something-more than an error in navigation

er management on the part of master or of crew. There

wee a failure-by an cwner to, fulfill the condition on

hich immunity depended.” 290 U.S. -333, 334. ° Later

on the Court again emphasized the intervention, and.

its legal significance, of the owner’: shore staff who

tock full-command of the situation at the Port of Bre-

men. “Here is a case .where master and crew have’

surrendered their management and have made appeal

to the cwner ‘to resume control himself. Response to

that Dppea! destroys the continuity. of the voyage, as if

it were broken into stages. * * * An owner intervening

: In such circumstances: must Be diligent in inspection

or forfeit his immunity. Negligence at such a time is

not the fault of servants employed to take the owner’s

place for the period of a voyage. It is the fault of the

“owner personally, exeretsing his own ju dgment to Getic

moo whether the voyage shall go or." 29) US. cn,

246. | ks | ie)

Presumably to satisfy these pri a ie Cargo prs

posed, and tre Clirt adopted verbatim. a finding at

shore establishment in Rio “which performed all-of js

eperating functions in that port * 4 *" the managemen!

- legal. conclusion that because he owner maintained

Se oe |

master and ere-y as itis orf the high seas” so that on

vessel was in respondent's hands os 4 again, ond the

_ duty to exercise due diligence was retewel."'

But we reject this fin ding as cleariy eri ‘oeous. Te

record does not sustain either a finding, Gr an imped

finding, that ther@was’ a shore staff competent to. «1

‘charged with responsibility of. making inspections: and

cf the DEL. SVD “was rot sc lely in the hands of her.

arranging for or superintending the repair. Nor does

- . 4 >

Sane all La eee Sagas

Ph “This i: > ad in Conclusiens of Law NI

$ “Recron jen: ™) pint: 7° Pred 4 sy ala be * res

ye he ve j- I

e apace ak ee ae

Janeton which rerformed all of its onerating Sinetions in that

4 ‘

ort. "Then te DEL SUD ‘en:ered RBiy in bor 3 na Zz

dition on the sorthSornd lee of Voyage 23 bos mymager ont

LWeas net enleiy in the hands of her Master ond crew as it is

on the Nigh. --sas. The vessel was in: respondent’: Lands

“mee awaits qra tha dr to evercise dre dil ivanoe Ww sore

newed “Tt was locamian upon responden* ‘> exéreise due

Cis > to male the DEL, SUD se: worthy before se at the

omonzing of bore vorace from Rin de Jeneiro ‘a New; Orteans

~beowar of Curnes Fespondent’s failure.to comduct a

“SSUrVey or any exc satnutten of the hill of thé DEL SU'D prior

to its departure from Rio on the northbound leg of Voyuge

“f t) cpite of the ‘mpact with the dock at Santos. and in

spite of the fact that she was taking water on the voyage

Oo Sintos Jo Rio de Janeiro (see The W as ae

Sunn 6): renders respondent liable for subsequent damage

_.to the cargo ioaded at Buenos Aires and Montevideo, even

hough the DEL S!I’D was seaworthy upor departure from

the: e ports. (Fie Isis, 200 U. S. 333, 19833 AMC 1565.)"

29.

it show ‘acy effort. as in The Isis, of the shore staff to

supplant or super sede the ship officers and -crew. “In-

deed. the record is uncontradicted that. no one aboard:

the vessei had any idea that the “Ship then bore the

wound in her port bow... Had the law charged the

oO wner with the legal consequences of it. the ignorance

of mast Cr and officers of the damage might. as Cargo

vigorous}, contended. been imputed to them. But this

does not prove -the contrary. namelv. that the ship's

company stood,aside while the port establishment took »

over. Indeed, the only basis for the finding is.a literal

use of answers to a pretrial interrogatory which proved.

at most. only the nature of the port Staff. not any of

their actua! activities.*sand none whatsoever. with re-.

spect to this call of the DEI, SUD on this voyage

eee i \

ae Tnterroge!: ry , i etn edt:

“Deserihe the chore establishments .moaintained. by re-.

sponden? at the varons ports of call which were touched on

oo 36° inciidinz a stateront of the nursher of personncl

-at each establishment. and or explanation of the function

of the varieus depar’ments in each establishment.”

" The answer as to Rie de Janeiro | was 2s follows:

“At the ports of Rin do Janeiro, Buenos Aires and San-

a wheliv Gwned . Subsidiary of re spondent and fieetions in the

three nmontioned ports in the capacity of kv Petit ayent,

aakiee. agent, stevedores and\stevedoring supervisor and

passenger agen’ Tt performs al\other functions rating to

the opera’ om: o° respondent .t\those ports x ‘

“At Riotde Taneigo Delta Line, a employs 16 persons

directl: The stevedoring « euperintendent, 4 employed -an a

per ton ¢

ment: ¢f Deity Line Inc. at cach port is as follows:

“Rio de Jancird Accotatin = a

ae s .

* « Admiaistrative 2. 4manayor and ascistant manager.)

“The manager :s.responsible far the proper. ‘functioning

ef all.his departmen’s and, additionally, handles all contact

work with shippers and receivers in connection. Awith the

bookiag .of cargo,.settlement of claims, “ett~ The assistant

mranager reeves the manager of such part of ‘Hissresponsibi-

tos, respondent's vessels are ‘serv iced by Delta Line. Inc. It is -

~ basis. © * * The function of the various arpaet- '

26°

The result is that Cargo must tau cn both counts

The initial damage was occasioned, as a result of erro:

In taVigation, he voyage had begun and there was:

nota failuje-ef the master to exercise due cso at

“thé Port of Santos to make the vesse] seawortii li

the damage sustained ty the cargo as a result-of w etting

after leaving Rio may be treated as proximately res ‘ult.

ing from a failure to inspect. and repair ot Rio. thes

error, too. was one in, the management of the vescse!

uniffected by any act cf the cwner through its shore

staff. The decree for the cargo must be reversed and

rendered for a dismissal of the libels.

. oe ,

aad ‘ . . .

* REVERSED AND RENDERED

HUTCHESON. Circuit Judge. Dissen tng.

A careful! consideraticn. in the light.of the pleadings.

the opening statements of counsel. ard’ the evidence

which was substartially not iA dispute. of the majority's

sweeping out of hand rejection of the district judge's

clearly, precisely, ond, I thi ink, ‘correctly stated find-

“ings and conclusicns,” has left me with the firm convic.

tien that it is not the district judge who has been: mis-

led bv able end earnest briefing: suggestion. and ar-

lities ae the moneger may find it advisacle to delegate geuch

responsibilities. Bie Fal

“Traffic 2 ‘freight acer! ond passenger agent

re s

“Stev edoring Superintendent - 3

“At this port the stevedoring superintendent is emplo: ‘ed’ -

on a per ton fee basis. His duties are to supervise ’the

* loading and eres. of caren. pe lal ed

a . a tae

gumentation, but the majcrity, and that, on this record,

itis this court’: v.eur duty not to reverse but to affirm

5 . - \ ‘

the judgment.

— Puls realiung that. except us my reasons for muking

my choice commend themselves to reasonable and in-

iormed minds, my statement that I agree with the dis-.

trat sudge uod: nothing te his discredited and rejected

findings. subtracts nothing from those of the majority.

which in turn I reject as unwarranted and ill-advised

in lew. IT shail. cs briefiv and succinctly as I can. and

with a: few weasel words as may be. state my reasons

for my fear, indeed my firm belief. that 7 of

the majority is based on such “a Highly” ificial ap-

, proach” to the construction of the Carriage of Goods by

Sea Act as to violate with respect to it the basic princi-

ples of statutory construction. nowhere better stated

than’ in Heydon's case.’ :

7 | “In Hevdon'’s Case in t584. after all to ‘barons of the

Exchequer had argued in open court. it was unanimously.

resolved by Sir Roger Manwood. . Chief. Baron. and the

other Barons of the Exchequer: ea ; oe

hot for the sure-and true interpretation of all

ttotutes in general (be they penal or beneficial. restric-

live or enlarging of the common’ law. four things :

are +o be discerned and considered. 1. What was the

-* - common law before the making of. the Act? 2. What.

“was the mischief and defect.for which the common law

did not provide? 3. What remedy the Parliament hath

résolved and appointed to cure the disease of the com-

monwesith®? And 4.. Tne true reagon” of yhe reffiedy.”

and then the office of all the judges is always~to make

and evasionse for. continuance of the mischief. and pro

_ privato commodo, and to add force and life to the cure

and remedy, according to the true intent of the makers

of the act. pro bono publico. 3 Co. Ta.” A Case for

. Three Judges, Harvard Law Review, ‘darch. 1934. p.

798. ‘

euch construction as shall suppress the mischief, and.

advance the remedy, and to’ suppress subtle inventions .

it is. therefore, impossible for to accep. the con-

clusion@e! the majority that the ne and conclusions

-Of the district iudge must be rejected’ out of hand ds

| “learly erroneous, and that this court, entirely unin:

fluenced’ by them. can subject’ the record to a sub

Stantially de novo considgration and analysis. and. based

thereon, make contrary findings of its gwn .

t seems plaim to. me. on the contr arv. that the facts

as facts are bv and large undisputed. and that. w here,

they are not. they fully Support the findings of the dis. b

trict judge. It is.” clear: too, I think. that where the

findings ate in part concerned with inferences from

facts. there is a sufficient. indeéd a very strofig case _

for the fact findings and conclusions of the district

judge, that there was negligence in handling the ship

in connection with the undocking (1) in rot making an

entry in the log, of thé occurrence. of striking the ‘dock

with great and unusual force and (2) in not instituting -

an inquiry before departure from the port as to its ef.

fect. upon the seaworthiness of the « vessel, and the care

and protection of the cargo. . ve

I must confess that when I come +6 conbider what. ]

regard as the crux of thé case. the legal situation at

‘Santos. under the Carriage of Goods by Seas Act. 46

U.S.C.A.. 1300- 1315, and to state what I believe to be

the law of. the case. ie find the situation, most: manne: :

factory. This is: not because IT have difficulty in con:

cluding on principle what the decision should be. - 'It'is |

because. and only because, the controlling factor here

is the correct construction of the applicable statute and

there 1s nce controling decision precise.y 1 in point with

the tacts cf this‘case. In short, neither the counsel, rie

distri ‘judge, nor the majority has peen able.to point

lu a single authoritative decision on. facts luke. these, ana

] nave tound none for myself? The district judge, hav-

ing found and. held, upon the undisputed evidence, that-

the au was, rendered unseawerthy by the collision with

the dock, and, with ample suppor! in the evidence that

the, carrier had “ot exercised due diligence to make it

Jeeworthy, disposed cf the case with confidence as a

Cure OL siek lity under Sections’ 6 and 4/1) of the Act,

winle tne’ mejorssy. of the View that, nce maneuyering

1c deport the bort hgd begun, whet occurred. thereafter

'o render The ship urnseaworthy and what was done

about t was tf no moment because. ty Sec. 4/2:1a),

carrier and ch‘p were as completely exempted from

liability as theugh the

intury to the ship. hed occurred

at sea. 5

; o #

Fo. myse} f, Il think HX clear. that the case may. not be

decided by how many liNese had or had not been cast

off but only’ by determining which in principle is the

dominating portion of the sta ute here. the genera] or

enabling provisions of Section’. : o and 4, imposing the

“duty of diligence to make. the ship seawor vorthy. that the

carrier shal] be bound to exercise due diiasnes to make

the ship secy-o orthy “before and at the beginning ‘of the

_vovage’, that is before it ee the’)

ort. .or the ex-

- ns (Ba. Neither the carner ae the snip sgall be rest mate

b'e Sor Joss or damage arising or resulting \from--

“va), Act, negfect. or default ‘of the master. mariner,

pilot or the servants of. the carrier in the navigation or- in

the management of the ship: * 7 *" 46 USCASSec. 1304.

+ . « A ae .

- ae

ceptive or limiting provision of Sec. 42) a), ‘that

neither the carrier. nor the ship shall be resporisible for

loss or damage arising ' or ‘Tesulting from ‘“(a) Act,

“neglect, or, default of the master, mariner, pilot or the

servants of t

management of the ip.” In my. opinion, the majority,

in paramounting Secths Ai2)(a), ‘has set sail on the

wrong course, while the district judge. in paramounting

Section: has taken the right one. Instead, therefore.

as the majority seems to think of.the district judge's

position representing “a highly’ artificial, ‘approach", |

think the shoe is on the othet foot and that it 1s the

position of the mney which is the “highly artificial”

one. at

‘While it is true that maneuvering was well under way

and most of the lines had ‘been cast off, it is also true

that ‘some had not been, and. if the question of line ’

casting is at all controlling, and I definitely think it is

not, it seems to me that, unless all lines are off, it is the

‘same for our purpose as if. none were: In short, if.the

ship. is,to prevail under the fine. casting theory, which

the majority seems to espouse, the prgaf must show that

the act making the ship unseaworthy occurred at least

g. after, all, the lines were -cast off. while for cargo to

prevail. it is sufficient if at least one remains uncast.

. ‘how ever, do not ‘subscribe té either of these views.

I think the question of what lines were or were not

made fast, what were loose, is wholly artificial and

immatérial. As I see it. the real question is, had the

ship left the _ of bes in the legal sense that the

rrier in. the navigation or in the

‘>. 31 y I ae

ss voyages nad actually begun, the ship was no longer mn

port, apd its fate was no longer in the hands, and under

the control, of the shore personnel, but under the

control and, in the. hands of the master.

Looked at, as I see it. the law of this. case is that the

determining question is not how many ‘lines hid been:

cast off and w hether the ship had or had not begun the

maneuver of getting away’ from the dock, but. .whether,

the evidence supports the finding and conclusion of the

district judge, that: something. occurred to, make the ship

-unseaworthy while’ it was still in. port’ and, therefore,

‘within the potential control of the.shore personnel, and

that the circumstances were such as to constitute it

negligence not’ to make or cause to be made an inspec:

*, tion: before leaving the port to determine whether the —

ship was seaworthy, so that the case is controlled by%

Sections 3 and 4(1) of the Act and not by Sec. 4(2)(a).

In my opinion, the question admits of .only one

answer, that given ‘by the district judge, and the view

‘of the majority, that the injury was caused ‘by an error

in navigation and management, from the consequences

of which the vessel was. completely , exonerated, is, up-

on the record in this case itself, completely erroneous,

and I deprecate and dissent from the judgment of re-

versal. ares :

—— all THE Coun OF APPEALS

This cause came on. to be heard on the transcript of

the record from the United States District Court for the ~

Eastern District“of Louisiana. and was argued by counsel:

A eee 39

_ /£N CONSIDERATION. WHEREOF, It is now here

ordered, adjudged and decreed by this Court :thut the

decreé ‘of the. said’ District Court. for the cargo in this

ccadse be.and the same is “hereby, reversed and rendéred

fer Gsmissal of the libels; ” |

\ :

Bane It. ts further crderéd, adjudged and de: Jréed that the ap-

~apellccs, Zander and Company, and ethers, be condemned,

my sMide. te pay the costs cf, this cause: in this Court for

which wekeuytion ma) be issued _cut cf the said District .

f Co uUFt. an, E a

“Hutcheson. Circuit Judge. Dissenting.”

er Nh pee

2 BAe, (att ORDER

i The two fibels in’ this couse having’ been consolidated

ee i hearing by the District Court and for briefing, argu- .

ment and deci: ‘jen, on appeal, and’ this Court thereafter,

on me tion of counsel for dppellees, Zander & ‘Company,

Pax. al, having granted: a blanket extension of time

eg to soaiiee until October 2, 1959 within which they

mht cither apply for rehearing of the. decision and

ig entered as of August 12, 1959, or alternatively

“for i tay of the judgment of this court: ‘pending their

fees eese for writ, of certiorari, ands *

”

*¢

Ty sppearing that appellee, J. ‘Aron &. Company, Inc.,

does not new desire either ‘to apply for a rehearing or:

for a stay of the judgment. of. this court on its own .

separate application eid a writ of certiorari;

’ . ee °

IT 1S NOW ORDERED that “this judgment rev ersing |

and rendering this cause “as to appellee, J. Aron & Com-

“spany, Inte.. for dismissa: of its libel, be issued forthwith

separately as to that appellee, and that the clerk of this ¢

_ Court issue a. cert ified. copy hereof to the clerk of the

. Distr ict Court as soon as. practicable,

* ‘

FINDINGS AND ‘CONCLUSIONS OF THE DISTRICT

, ae ‘COURT

CHRISTENBERRY. J.

| The foregoing .matters having: been consolidated for

trial, and having been tried to the ‘Court without a jury,

‘the Court having heard evidence and the ‘arguments of —

proctors, and having taken, time to consider the matters, |

hereby makes the following findings of: fact salad con-

clusions of law: , ;

FINDINGS OF FACT

Respondent, Mississippi Shipping Company, Inc:, was -

and still is a corporation duly ‘organized under the we.

of the State of Louisiana, owning and operating anum- . 7

ber of vessels engaged in the’ carriage of cargo on the

high seas, having an office and place of business in the

Hibernia Bank Building in the City of New ‘Orleans,

State of Louisiana. Respondent is the owner of the :

SS DEL SUD, operating the said vessel in the common

carriage of merchandise for hire between, among others.

the ports of Buenos Aires, ‘Montevideo, Santos, Rio de

a large ocean liner with over 90 passenger accommoda-

tions and six cargo holds, with a length’ of 494 feet 7-

7,16 inches, breadth of 69 feet, gross tonnage. of 10, 073,

" and net on of 5,543.

* 2

ba «

o .

Each of the libellants has the legal ‘status ascribed to | ~

them in the. libels and has the interest in the various.

shipments ascribed to them in thé libels. Each of the

shipments referred to in the libels was carried by the

respondent. pursuant to the ‘terms of ‘its regular bill of

lading issued by its authorized agents, incorporating -the

provisions of the U.S: Carriage of Goods by Sea Act,

1936. Each of the said ‘shipments was delivered to

‘the respondent.at the pert of loading: in good order. -

and condition and each ‘cf the said shipments sustained

sea water damage sometime during the voyage from

‘Santos to New Orleans.

ay Voyage 36 of the DEL SUD began when she de-

..parted the port cf. New Orleans on’ August 14. 1952.

~The chronological order of the voyage, and the date

and time of arrival at and id aiiante from each port’ of

‘ eall. was as _ follows:

Janeire, Curacao, and New Orleans. ‘The DEL. SUD is

35°

Voyage. 36 Southbound.

New Orleans — Departure 3:04 P.M. Aug. 14, 1952 ©

St. Thomas, Virgin Is. Arrival 2:51 P.M. Aug.‘18, 1952

St: Thomas Departure 7:05 P.M. Aug. 18, 1952

~ Rio de Janeiro Arrival 1:50 P.M. Aug. 27, 1952

Rio de Janeiro —~—S— Departure 4:59P.M. Aug. 28, 1952

~ Santos ae, Arrival . 7:19 AM. ‘Aug. 29, 1952

Santcs . Departure 3:55 P.M. ‘Aug. 30, 1952

Montevideo: - Arrival 6:57 P.M. Sept. 1, 1952 .

Montevideo : Departure 8:06 P.M. Sept. 2, 1952

Buenos Aires Arrival ©: 7:52 AM. Sept. 3

, 1952

Voyage 36 Northbound

_ Buenos Aires _ _— Departure 3:15 P.M: Sept. %, 1952

“‘ Santos = - Arrival 7:44. A.M. Sept. 9, -1952

Santos Departure. 10:14 P.M. Sept. 10, 1952 ”

Rio de Janéiro. - ‘Arrival 12:00 Noon Sept. 11, 1952

Rio de Janeiro... Departure 11:04 P.M. Sept.11, 1952

Curacao; . B.W.I. ' Arrival 10:30 A.M. Sept. 20, 1952

| Curacac, B.W1. Departure 12:31 A.M.-Sept. 21, 1952

New Orleans Arrival 8:00 A.M. Sept. 25, 1952

+ b) The. amount of cargo loaded and discharged at

.. each port and the change in draft resulting therefrom

on Voy age 36 was as follows: ;

‘IN..90.L6

‘WW.£0.L2

‘IN..20.S2

"N..60.92

"IN..80.S2

“N..OLSZ

N..90.61

‘WLOL6I

N..90.61.

IN..C0.61

‘W..L0.61

“W..60.81

: W..01 BT

IN.OL8I

“IN..60.81

IN.80.81.

“IN..G0.81

“IN..20.0%

‘V.SO0.86.

"V..80.L2 |

"V..80,E2

V.90.L¢

“Vi40.96

WG0.90.

"V..00.22

“V,80.12

‘VG01Z

‘Vi F0AZ

“W,,L0.0G

"V..90.16

“Vi90-12

"V,90.12

“¥.,00.12

‘W.80.18

W901

‘V0.6

1eig

“A.L0,92

“01.9%

“4.80.42

4,,00.92

“4.00.2

“A.£0.S3

“L.00-L1

“4.00.81

“ALOLLT

“L.90.L1

“410.91

“4.,00.91

“L..20.91

“L009

‘4..90.91

‘WL80.L1 .

‘POLI

- 0.81

way

‘dag

‘dag ©

“Ty °°

pagieypsiq

(janz “STqq

.b29 O01) Pepeo'y

auoN passeyosiq

g'ES8 papeoy

GZI passeyosiq

8. 6Str Pepeo’y

GET padseyosiq

FCEI PapeoT

L801 edreyosiGg

| RST papeoy

89%. Padreyosiq

cg pasieyasiq

_ guou papeo’y

601 pasaryosiq

— 99T papeoT

(Tang “sTqq BLT)

QUON

ONSET papeoy

odrey) suoy

-‘SUBZJTIO MIAN

owoeing

oauepr ap Oly

; 4

2° S0JUPG

Sally soueng

OaplAd UO]

sojUueS

—-

O1lauer ap O1Y

sewouL IS

— sukayIQ Man

140g

—¢) The draft of the DEL SUD at Santos on Voyage |

36 and on prior voyages during the previous year was as

follows:

ARRIVAL

-Voy. 30

NB 16’°06"F

Voy. 3l

SB 20’02’”F.

NB 17'02”F.

Voy.

. SB

- Voy. 33 »

Voy. 34

Voy. 35 »

SB’

Voy. 36

“SB

21’10"F.

19 04’ ¥.

NB 16'02”F.

16°03”F.

NB 17'10’F.

18’ 01"F,

NE 15’04’F.

17'04’"F.

NB 15'00’F.

16°02” F.

“NB 17°00’F.

25'10"A. 23’10"M.

_2104”A. 18711’M.

2608” A., 23’05’M.

21 04° A. 19’03”M.

25'04’A.

22°05"A. 19°04’M.

21/04’A, 19°07"M..

25'06"A.

20°08’A. 19’00’M.

29°02". 1807".

2106"A. 18’10’M.

19'06’M.

22’00’A\.

"99'04’"M.

90'02”A. 18/02”M.

21710’M.

21°04” A. 18°04’M.

DEPARTURE

19°04’F.

20’08”F.

18’06”F.

19’06”F.

17'06’"F.

18'00’F.

15/00"F.

17'06"F.

17’00"F.

18’00”F.

16'04’F.

1702’.

16’00”F.

25'03’F.

24’08A.

95’10A.,

26'00"A.

23'04’A.

26'00"A.

29°10"A,

22’00”A.

23’08’A.

24’06”A.

22’06”A.

19’08"A

21°06’A.

26'°05’A.

29’00’M.

93'03"M.

99’07"M.

21'05”M.

21'09’M. »

20’05"M.

18’06"M.

20'07’'M.

ov09"M. -

90’03"M.

_ 18°00"M.

o400"A.

20’07’M.

18’08’M.

25°10"M.

On September 2 at Montevideo, and September 5 at

Buenos - Aires, the cases of corned beef which. were

., ultimately - damaged by sea water were loaded aboard

the DEL SUD and stowed in the lower ‘tween deck of

Bl No. 2 hold.

On September 9 and 10 at Santos, the.bags of coffee

which were ultimately damaged by sea water were

loaded aboard: and stowed in. the No. 2 lower hold and —

in the square of the hatch between the No. 2 ‘lower

‘tween deck and lower hold.

Vv oe

‘Upon arrival at Santos on September 9, 1952, the

DEL SUD moored portside to her customary berth at

Dock 15. The facing of this dock is of concrete. At

2133. hours on September 10, 1952, after loading heavily,

the DEL SUD made ready for her customary maneuver

away from the dock. She singled up her mooring lines

and a local Santos pilot came: aboard to unberth the

vessel. Her engines were put on standby at 2157 hours.

The ‘Tug NEPTUNE made fast on the starboard quar-

ter of the DEL SUD with a hawser in order to swing

the stern of the DEL SUD away from the dock and out

into the channel to permit her to turn about in a

counter-clockwise manner. To accomplish this maneu-

‘vér, the stern mooring lines were cast off beginning

at 2208 hours and the bow spring line and breastline

were held fast to the dock in order to hold the port

bow at the dock while the stern was brought out into

the channel by means of the Tug NEPTUNE hauling on

the hawser from the tug’s stern at about right angles

to the ship. At 2214 hours the engines of the DEL.

SUD were ‘put astern. During the. said maneuver,

when the port shell plating of the DEL SUD just for- 7

basil of where the curvature of the hull begins at No.

dock, the lip of an overboard discharge line, which

‘stood. out two inches from the shell plating, pressed

against the concrete dock, causing a fracture. in the

shell plating about 12 inches in iength: and 1/2 inch in

discharge line. .The fracture was located in the fifth

_ strake below the sheer strake and about two feet above

the water with the vessel trimmed as she was for de-

parture from Santos, in.the way of No. 2 lower’ ’tween

deck on the port side. It resulted from the pressure

of contact between the hull and the concrete dock due

to the unusually heavy aise and deep draft of as

' vessel.

It was customary for two cork fenders about, 18” i

length and 18” in diameter to be used over the an

of the DEL. SUD during the undocking ‘maneuver at

Santos to prevent damage to both the vessel and the

dock.. However, during the undocking of the vessel on

Voyage 36 at Santos, in spite of the fact that even

the use of two fenders could not prevent some points

of. contact. only one cork fender was used and it was

“ace ordingly impossible to av vid contact between. the hull

and the concrete facing of the dock as the hul! rolled

: against the dock when the after end of the vessel Was

maneuvered ¢ cut into the channel.

Vil:

The crack in the hull of the DEL SUD described in

Paragraph V occurred before tne vessel left the dock

at Santos and while her forward lines were ‘still made

fast to the mooring facilities cn the dock.

‘Vili

. The impact which partes the damage .to the hull was

unusual and severe and the shock or vibration was felt

by personnel aboard the DEL, SUD. Chief Radio Officer

Theodore Hergenrader was on-deck near the Radio. —

Room at the time of impact and to him the impact felt

like the DEL SUD had hit something solid. He could |

feel the. vibration and to him it. was similar to the jar

he felt aboard: the DEL SUD when a lumber schooner-

hit. the DEL SUD a glancing blow. Ship's Physician

William: A.. Love was in ‘the deck’ cafe at. the time of

,impact:.and -felt the vibration ‘and. bump which seemed

‘to him as though the vessel had been forced ‘against ~

the dock. Chief Engineer John L. Cullen was in the

engine room at the time of impact and felt .the vibra- —

tion from the impact which he thought had, been caused.

by the ship striking a crane On the dock when the bow

‘came around. | ‘i ¢

‘

« 41

The regular master of the DEL SUD was Captain ,

Williams. On Voyage 36, Adin Tooker acted. as Relief.

Master and ‘was on the bridge at the time of impact

with the dock and knew at that time ‘that an impact

between the vessel and the dock of unusual severity had

occurred. In spite of Such knowledge, no effort was

made io determine whether the DEL SUD had sustained

damage to her hull as a result of the impact until the

X ..

Upon experiencing ‘the impact df the ship with | the

dock at Santos, Chief Engineer Cullen felt that the im-.

pact was severe enough to warrant: entry of the incident

in the engine room log, but before: doing so called-the

bridge on‘the, telephone to ascertain what entry was

being made in the bridge log. He spoke to Junior

Third Mate Dokson. . Dobson in turn: advised Captain

‘Tooker of Cullen's inquiry and in reply Captain Tooker

stated that no’ entry was to be made in the bridge log,

which information was transmitted ‘over the telephone

to.Cullen by Dobson. These conversations took place

while the forward lines of the DEL SUD were still

made fast to the dock at Santos. In order to avoid a

discrepancy between the bridge log and the engine

room log. Cullen decided to make no engine room log

entry of. the incident and none in fact. was made in

the ee ~_ the engine room log:

- Xi

—a*

~’ On the night of September 10, 1952, upon departure ~

trom Santes, the DEL SUD was loaded to the deepest

draft she had ever been when leaving this dock at San-

tos, drawihg | 25 feet 3 inches forward and 26 feet 5

inches aft. The water level Was 7 feet 5:8 inches below

the top of the dock when the DEL SUD prepared

to depart from ‘Santos. The DEL.SUD’s draft, at that

tidal stage, brought the’ lip of the overboard discharge

on the port ‘side 2 feet 8-7/8 ‘inches above the water

and the lip was, then 4 feet 3-3/4 inches below the top.

of the concrete dock. With the vessel loaded as heavily

as she was, and with the water level ‘as it was, re-

- spondent's customary undocking maneuver made damage

to the hull of the DEL SUD extremely siete if not-

inevitable. ; : =)

Although no seawater could or did enter through the

crack in the DEL SUD’s hull- as she lay in the harbor ’

at Santos because the crack was &pproximately two feet

above the water line, as the DEL SUD put to‘sea for

Rio. de Janeiro seawater began to enter through the

crack due to the swells of the.sea, normal] roll-of the

vessel, and buildup of water at the bow, all of which .

caused the crack to be eects at times. and seawater

‘continued to enter the No. 2 hold during thé remain-

ing stages of her voyage until) arrival at New: Orleans,

Louisiana. ‘The entrance of seawater resulted in dam-

age to much of the cargo ‘loaded at. Montevideo. Buenos

to oy

43 -

Dee

Aires, and Santos and stowed in the No. 2 lower. hoid

and Jower ‘tween deck.

XII ©

- At 0800 hours on September 11, 1952, while approach-

ing Rio de Janeiro, a sounding of. the bilge well below

the No. 2 hold ofthe DBL SUD disclosed 5 inches of

water. Prior to Santos, the bilge had been dry, At

"1200 hours on September 11, 1952, ‘the DEL SUD ar-

ctived in Rigs de Janeiro, -Brazil, afid moored port side

“to Dock No. 7. bare afternoon sounding of the bilge

well below. the No. 2 hold of the DEL SUD disclosed

10 inches. of water. | ie

XIV"

After loading cargo at Rio de Janeiro, the DEL SUD.

departed at 2304 hours’ on September 1], 1952, Laat

Curacao, B.W.I. without respondent’s having surveyed |

the vessel’s hull ‘to determine why she. was taking ,

water. On the voyage from Rio de Janeiro to Curacao,

_. there was d maximum of 24 inghes of water in the

bilge well of No: 2 hold, and on the voyage from Curacao

to New Orleans, there was a maximum of 8 inches of

“water in the bilge well of the No. 2 hold. The bilges. .

_ were pumped continuously commencing on September 7

12, and jn spite of pumping the water reached the ~

maxifhums herein stated. It is obvious that water was

entering the lower ‘tween deck and draining down into

the lower hold throughout the various stages of the voy-

‘age after the vessel departed Santos. It is-4mpossible to

44 | ;

“ ; > 7

determihe what degree of damage was caused to the

cargo during the various stages of the voyage from

Santos to\Rio de Janeiro, from Rio de Jane ro to Cura-.

cao, and from Curacao to New Orleans.

\ : .- “XV

In the ports’ of Rio de Janeiro wi Santos, respond-

ent’s vessels are serviced by Delta Line, ,Inc.; a wholly-

owned subsidiary of respondent, which functions in the

capagity of husbanding agent; booking agent, stevedores,

stevedoring supervisor and passenger agent and per-

forms ail other functions relating to the operations of

respondent at those ports. : |

| XVI

While the primary cause of the damage of cargo Was

the vessel's departure from Santos in an unseaworthy

condition, the failure of respondent to take proper steps

in the port of Rio de Janeiro to discover and repair the

“a

damage to the hull of the DEL SUD resulted in. further

damage to, the gargo in the No. 2 lower-hold and ‘tween

deck, since, in spite of. continuous pumping of the bilges.

‘ the water therein reached its maximum height of ®

‘inches after the DEL SUD left Rio de Janeiro for

Curacao on the northbound voyage. -

CONCLUSIONS OF LAW

The subject matter of thig litigation, a claim for

damage to cargo while on the high seas, is within the

~e ie

Mai’ ri *,

admiralty and’ maritime jurisdiction of the Court, 28

‘USC 1333.00, mb

~ The carriage of Cargo invelved in this litigation was }

pursuant tothe U.S. Carriage of Goods by Sea Act of

April 13, 1936, 46 USC 1300-1315. — a

(oo

Section 3 of the U.S. Carriage of Goods by Sea Act re-"

‘quires the carrier to exercise due diligence to make the

ship neawortny “before and at the beginning. cf the

voyage”. «A breach of this obligation, which proximate-

ely Cults in‘damage to cargo, renders the éarrier liable a yey

aes carge for the damage. The carrier must not only dis-

charge the obligation to exercise due diligence to make’

the ship seaworthy at .’. times before the beginning |

of the vevage, but also ‘must exercise due diligence to.

make the ship “seaworthy: at and during’ that interval

of time which may be said to comprise the actual “be-

ginning: of the. vovage.”’

0. ‘ “1

+ IV <

A “voyage”, as the term is used in Section 3 of the

ot OS Carriage of Goods bv Sea. Act, does not begin. in-

sofar as a particular cargo is.concerned, until] the ves.

‘sel departs from the port at which the particular cargo

is lifted and loaded aboard the vessel. As to the cargo

which was loaded at Santos, respondent had the obliga-

tion to use due diligence to make the ship seaworthy

‘

—e

Pe sis and at the: ‘beginning of , Mesyovags from Santos.

_ig@Puct ‘when the DEL SUD rolled against t

—_— . i

Urcor Carbide & Carbon Corp. rv. Cnited States, 200 F.

2d 908 12 CCA 1952). ae

A voy age begin's only when-the vessel breaks ground - |

or Jeaves her moorings in complete readiness for sail-

Ing and proceeding to sea. The Willowpool, 12 F. Supp. -

96. The Newport, 7 Fed. 2d 452." When the damage oc-

curred to the DEL SUD she had not left her moorings —

“i+ at Santos in complete. readiness for sailing: artd proceed

ins to Sea since” her bow spring line and breast line

“. were: still made fast ‘tor the mooring facilities of the.

‘dock at Santos’ Therefore, the vessel was damaged and —

rendered’ unseaworthy before ‘the voyage’ from Santos

had begun and was not seaworthy at the beginning of

the: vovage within. the meaning of Section 3 of the U.S.

Ca Fiage. of Goods by. Sea ae.

Ps - .

4 .

Y ‘ VI

. .

é ‘ ' ; j x ss

Insofar as cargo loaded at, Santos: is concerned, the.

garrier failed to exercise due diligence fto make*the

DEI: SUD seaworthy before’and at the beginning of the .

vovage since, the ‘occurrence, of the unusuak and severe

‘dock at

y, was

Santos, which rendered) the vessel unseaw

-_ known to responsible personnel aboard the DEL SUD.

_ including the navigating personnel on’ the bridge, be-

fore the vovage had. begun, and the obligation imposed

' by Section’3 of the Carriage of Goods by Sea Act re-

—————

47 -

quired that a diligent effort be made to determiue

-whetKer the vessel had ‘sustained damage.

‘ Respondent's breach of the obligatior. imposed by..Sec-

tion 3 of the Carriage of Goods by Sea Act was the

proximate cause of the damage to cargo ae on board

the DEL. SUD at Santos.”

o om

Ev en before the undocking maneuver began, respond-

ent- had breached the obligation imposed by Section: 3

of the Act by loading the DEL SUD so heayih

that the —— snneaeey on, her ‘hull. d

t Santos

ing .the un-

damage oes a. customary maneuver inevi

. even probable. constituted a failure to ex@frcise the

Interlake. Iron “Corporation v. Gartland SS

2d 267 (6 CCA 1941). 3 |

‘Respondent had an obligation to anticipate and guard

egainst the type of damage which the vessel sustained,

and its failure to do so, either by providing for the use

of a sufficient number of adequate fenders, and instruct-

ing its’ personne! atcordingly, or if the ‘fenders could

not give the necessary protection to the hull during the

customary undocking maneuver; then 7 providing for .

’

' 48

the use of an undocking maneuver W hich did not pce

undue strain on the hull of the, vessel. cynstituted a

lack ot due dihgence to: make the vessel seaworthy be

fore and after the beginning of the voyage from Sante:

The Fred W. Sargent, 32 F. Supp. 520. 2

‘The obligation to exercise ‘due: diligence which Aim

posed by Section 3 of .the Act is not limited by We

provisions of Sectron 4.02: of the Act. If any action.

or inaction on the part of the carrier or its agents which ’

might otherwise be excused under Section Fi2ivof inc

Act renders the vessel unseaworthy before or bt the

beginning of the voyage. there is a breach of tne obliga-

tien imposed by Section: 3 if the resulting unseaworthr-—

ness could have been discovered by the exercise of due

diligence and was not discovered, and the carrier | is re-

sponsible for the resulting damage to cargo.

J es

Respondent maintained. a shore ‘establishment. in Rio

de, Janeiro which performed all, of its cperating func-

ticns in, that | port. When the DEL SUD entered Rio

in her: damaged condition on the northbound lec of Voy-

age 36, her management was -not solely in the hands

of her Master and crew ‘as it is on the high seas. The

vessel was in respondent's hands. once again, and the

7 duty to exercise due diligence was renewed. It was.

incumbent upon respondent to exercise due. diligence to

make the DEL SUD seaworthy before and at the be:

ginning of her vovage from .Rio de Janeiro to New

Orleans by .way of Curacao. Respondent's. iiiere to

conduct a survey or any examination of the hull of the

DEL SUD prior to its departure from Rid on the north-

‘bound ieg of Voyage 36, in spite of the impact with the

dock at:Santos and in spite of the fact that she was tak-

ing water on the voyage from Santos to Rio de Janeiro

‘(see The Willowpool, 12 F. Supp. 96), renders ‘respond-

ent. liable, for subsequent damage tothe cargo loaded

at Buenos Aires and Montevideo, even though the DEL.

SUD. was seaworthy upon departure from these. ports.

(The Isis, 290 US 333, 1933 AMC 1565.) Since the DEL

' SUD took substantial quantities of water in the No. 2.

. hold on each leg of the voyage between Santos and

New Orleans. it is impossible to determine what ‘por-

tion of Buerios Aires and: Montevideo cargo was dam-

"aged. and to what extent, or the voyage from Santos -

. to Rio, the vovage from Rio to Curacao, and the voyage

from Curatao to New Orleans.. the carrier bears. the

_burden of segregating the damage for which it is re-

sponsible from the damage for which it may be excused,

and failing to carry this burden, is responsible for the

salt water damage to all cargo in the No. 2 hold, whether

loaded prior or subsequent to the damage incurred at

Santos which made the vessel unseaworthy. The Val-

lescura, 1934 AMC 1573. 7 Aa a

;

Libellants are entitled to recover from respondent for

the amount of salt water ;damage sustained by the ship- —

ments loaded aboard the DEL SUD at Buenos Aires,

_ Montevideo and Santos and stowed in the No. 2 hold.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.