# Petition for Writ of Certiorari — J. Aron & Co. v. Mississippi Shipping Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1270%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 361 U.S. 115 ## Text . ° , 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., ee a « * _ 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 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”. \ \ \ \ 3 “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 e ° 4 . 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 a s é 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 6 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. 7 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). a | 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 a Eberhard. P. Deutsch; Attorney for Petitioner i ' Brunswick G. Deutsch, Renée H. Himel, ,Jr., Joaquin Campoy, Of Counsel | September, 1959 SS - sd re Yl . i . . ore ee ere an ie . 8 ° ell eee ee ee . y ‘ 7 é aan , ; , . a 3 i cep ~ 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 . a tae 27 gumentation, but the majcrity, and that, on this record, itis this court’: v.eur duty not to reverse but to affirm 5 . - \ ‘ the judgment. 2 — 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 2 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 ° 33 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, 7 * ‘ 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 I 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 ¥ ay 34 % 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. Se - * 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 Po 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: ; 36 ‘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 ay ‘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 ° 37 —¢) 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 SB NB 16’°06"F Voy. 3l SB 20’02’”F. NB 17'02”F. Voy. . SB - Voy. 33 » SB Voy. 34 SB 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. 38 IV 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 39 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, o . when the port shell plating of the DEL SUD just for- 7 basil of where the curvature of the hull begins at No. 2 hold: rolled in contact with the concrete facing of the © 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 ’ width just below the protruding lip of the overboard © 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. VI 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 40 “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 ¢ ‘ ee y o « 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 _ vessel returned to. New Orleans. © 7 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: o a 42 - 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. ; : =) Xl 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 ° 7 XIV" f 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 S “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 e The subject matter of thig litigation, a claim for damage to cargo while on the high seas, is within the ~e ie 45 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 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 Xi ; 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1270%3A2. Public record. Not legal advice.