Petitioners Brief — States Marine Corp. v. Aaby

Supreme Court brief1950

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Supreme Court of the United States

States MARINE CoRPORATION,

Petitioner,

against

Ynevar AaBy, Hetea LYCHE,

Eruine Aapy and E. B. Aasy’s

REDERI AKTIESELSK ABET,

Libelants-Respondents.

BRIEF FOR PETITIONER.

STATEMENT.

When the time charter of the Tento was made on

August 10, 1937, the vessel was in Australia and was

described in the charter, line 17, ‘‘expected ready

November.’’ She left Queenstown in the middle of

September, 1937, and had substantial trouble with her

machinery on the voyage. The master, Knudtson,

says, 591:

‘*We had some trouble with one of the main

engines, the tote-wheel for driving the shaft

having broken down * * * some 700 miles off

Dakar.”’

The vessel put into Dakar, Africa, under one

engine, Hertzberg, 188, 190, and remained there from

November 8 to November 16. Kvernes, 129. Being

unable to make complete repairs, the vessel proceeded,

still under one engine to Teneriffe where a new cog

wheel was obtained. Hertzberg, 190. The vessel then

went to Antwerp where people came on board from

BRST PRR Can

Sandefjord and Rotterdam and Oslo to make esti-

mates for repairs. Kvernes, 145; Hertzberg, 191.

Apparently the works at Sandefjord were the only

ones which offered to make the repairs by December

31, at 4p. m., the canceling date. Aaby, 449.

The vessel went to Sandefjord where extensive

repairs were carried on from December 15 to 31.

Kvernes, 126. The repairs involved the main engines,

port and starboard, water and lubricating oil cooling

system, fuel pumps, compressor, propeller shafts, sea

valves, auxiliary engines 1 and 2, and various other

features detailed in the bill. Libelants’ Ez. 11, p. 78.

The cost of the repairs was Kr. 107,831, Hertzberg,

161, 246, equivalent in our currency to about $26,957.

The repairs were considered a rush job, Wegger,

354, and were completed on 31 December, 1937, about

3 p.m. See deck log, Ex. A, 606, Knudtzon, 552. Aeccord-

ing to Ex. 1, Wegger, 354, giving a list of the men

‘‘employed each day on board and ashore with the

repair of the M/S Tento’’, 382 men were working on

December 30, and 99 on December 31. P. 121.

While the repairs were continuing, and on 29

December, the owners telegraphed to charterers, 803:

““Tento OWNERS GIVE NOTICE READY FOR DE-

LIVERY SANDEFJORD F'RIpAy 31 DECEMBER TWELVE

neoow * * >".

When the repair yard completed the work, the cus-

tomary trial trip at sea was not made, Aaby, 455,

although the specifications by owners’ consulting engi-

neer, Coch, in November, 1937, Aaby, 455-6, contained

the provisions:

‘‘Item 21. After completion of repairs, the

main motors and all auxiliary machinery to be

SEIS RELATING EIS Ot spittin Senge tage SEE GRRL EF LOTTE CGPI HOE LIP DP

tried at the moorings and possible faults to be

put right and all adjusted for quiet and proper

run.

‘“‘Thereafter running a trial trip at sea with

the ship where all the machinery shall work

properly for their full duty * * *.”’ 474.

A trial trip would have required about eight hours,

Bagger, 1112, and obviously would have prevented the

owners from making any tender of delivery before the

canceling date 4 p. m. on 31 December. If thu trial

trip had been made, the shaft of the lubricating oil

pump would have been found to be in a broken condi-

tion at the canceling date, as the shaft actually broke

after being in use less than an hour after leaving the

repair yard and 20 to 30 minutes after the vessel was

tendered by the owners to the time charterers.

Thus the owners by neglecting to have a trial trip

avoided the customary and specified test which would

have disclosed the unseaworthy condition of the vessel.

In reply to the owners’ notice of December 29 that

the vessel would be ready on December 31, fol. 803,

charterer’s agents in London, on 30 December, cabled

to broker at Oslo:

‘*TAKE DELIVERY IF TENDERED BEFORE CANCEL-

LING TIME VESSEL PROCEEDS TOWARDS SAInt JOHNS

N. B.”’ fol. 1296.

When the repairs were completed on 31 December,

the log contains the entry, 1359, that the starboard

motor was put slow ahead at 15.10. This was 3.10 p. m.

At 3.30 p. m. the master tendered delivery of the vessel

under the charter in the harbor of Sandefjord. Johan

Elligers, who had been instructed by charterer to take

delivery, had gone on the vessel from Sandefjord and

signed a delivery certificate to the effect that no defects

were found at the time of delivery. 42. Elligers said

that he walked around the ship with the captain, 975,

and ‘‘I surveyed the holds and the deck but not the

engine room.’’ See also 892. He said, fol. 976:

‘‘T did not make any examination of the

engines or machinery of the Tento. * * * I did

not make any examination of the lubricating oil

pump auxiliary motor No. 1.”’

The vessel proceeded about 8 or 9 miles in very

good weather and in the closed water of Sandefjord.

Kvernes, 137. Then she broke down. The rough |

engine log, Es. F. and G., 1359, contains the entry: |

‘‘Aux. Motor I stop 16.20 because of fault

with lubricating oil pump and engine running

warm.”’

It was found that the shaft of the lubricating oil

pump was broken. The engineer of the vessel said he

thought the fracture occurred ‘‘20 minutes to a half

hour’’ before he discovered it. 188. That would put

the breakdown about 3.50 to 4 o’clock and 20 minutes

to 30 minutes after the tender of delivery had been

made.

Thus, at the canceling time of four o’clock Decem-

ber 31 charter Clause 14, and perhaps for 10 minutes

previously, the vessel was in a broken down condition

and notice of vessel’s readiness could not have been

given.

In view of the concurrent findings of both courts

that the vessel was unseaworthy at the time of delivery,

there never could have been any compliance by the

owner with the requirement of the charter that ‘‘should

nce GS

EIR LEESON TZ PE ILS LITEM LE NE HME AE ES I RIE RITE DOL BIS ILA AL TITS ER tl

vessel not have given written notice of readiness on

or before December 31, 1937, but not later than 4 p. m.

charterers or their agents to have the option of cancel-

ing this charter at any time not later than the day of

vessel’s readiness.’’ The vessel was not ready at any

time on 31 December.

The shaft that broke was a piece of steel about 9

to 10 inches long and about 1% inches in diameter,

according to Hertzberg, the chief engineer, 165. He

did not observe any defect in the metal and could not

give any explanation as to why the shaft broke. 182.

He said it was not possible for him to make a perma-

nent repair of the shaft. 179.

While the Court of Appeals says, p. 491, that the

vessel stopped ‘‘apparently not because the breaking

of the shaft made her unnavigable, but to determine

the extent of the damage’’, the Chief Officer, Kvernes,

said, 135, that after she broke down she was not able

to make any headway and just drifted,

‘“‘We was drifting during that time and we

anchored at 7 p. m.”’ fol. 136.

He had previously said, 102, ‘‘she was drifting up

to about 7 o’clock.’’ The master says that after they

stopped:

‘‘We then found that we were unable to

start again.”’

‘‘She drifted for about two hours until she

dropped anchor about 7 p. m.”’ fols. 582, 583.

The log, Ex. A, contains the entry, 607:

‘‘the ship drifted down towards the reefs.’’

According to the master, she was then in ‘‘a dan-

gerous place because there was no shelter and there

was a gale with snow coming up.’’ 583. The log entry,

January 1, 1938, says, 608:

‘*As the ship was lying in a dangerous and

very exposed position, the tug David of Sande-

fjord was ordered to assist the ship into Sig-

grunnden as a port of refuge. * * * At 18.30 hove

anchor and the tug David towed the ship to a

safer anchorage. At 21.05 anchored on the Sig-

grunnden at Sandefjord.”’

This does not support the statement of the Court

of Appeals that the breakdown did not make the ship

unnavigable.

On January 1, Yggeseth, Assistant Yard Super-

intendent of Framnaes, at Sandefjord learned of the

breakage and took a tug to the Jento to find out just

what breakage had been done and then went back to

Sandefjord and returned with six or seven men to the

Tento. The shaft and propellers of the pump were

taken to the workshop and after the repair was finished

on January 2, the shaft and the propellers were taken

to the Tento and installed. 318. The vessel sailed on

3 January, Kvernes, 104, on orders given on 30

December. 836, 691, Resp. Ex. 1, 1396.

The broken shaft was not preserved, but was

scrapped. Wegger, 346; Aaby, 420. Neither Yggeseth,

the Yard Superintendent nor Wegger, the Managing

Director of the repair yard, examined the broken

shaft. Wegger, 345. Yggeseth said, 321:

‘I did not personally examine the broken

shaft but left that job to the foreman.”’

The foreman was not examined.

No tests were made to determine the cause of the .

breakdown. Kvernes, 588.

No explanation was ever furnished by the libelants

about the cause of the breakdown until at the trial,

their witness, Ford, said ‘‘that the most likely appear-

ing cause would be a defect in the metal of the shaft.’’

He did not suggest a latent defect, although on his

recall after respondent’s experts had been examined,

libelant’s counsel referred to Ford’s testimony as if

it had used the term ‘‘latent defect’’. 1245. He never

said that he thought the fracture was due to a latent

defect, but merely that ‘‘there is no more evidence to

indicate that a fatigue condition existed than there is

that a latent defect existed.’’ 1246.

There is not any exception in the charter of latent

defect to qualify the warranty of seaworthiness and

‘thoroughly efficient state’’ and that the vessel on

delivery should be ‘‘tight, staunch, strong and in every

way fitted for the service.”’

Respondent’s experts, Baruch, 1090, 1091, and

Bagger, 1122, considered that the breakage was due

to a crack which developed as a result of fatigue in the

metal and that this crack should have been visible for

a long time.

The District Court found it unnecessary to make

any determination as to the cause of the breakage, but

considered, fol. 1431; that

‘*As between these divergent opinions it is

not possible to make any determination. Nor

is it necessary to do so, for the mere fact of the

breakdown, so soon after the delivery of the

vessel, raised a presumption of unseaworthiness

at the time of the delivery. (The Southwark,

191 U. 8S. 1, 14; Federal Forwarding Co. v.

Lanassa (C. C. A. 4), 32 F. (2d) 154), and this

presumption has not been rebutted. Moreover,

aa PRE TEERD RISO EINE ce SEN PLE PRI IEE SERS OE AN TO TE ear OE

the warranty of seaworthiness is an absolute

one, and does not depend upon the knowledge

of the owner or the diligence of his efforts to

provide a seaworthy vessel. (The Southwark,

supra; The Caledonia, 157 U. S. 124; Work v.

Leathers, 97 U. S. 379). I therefore find that

the vessel was unseaworthy as to the lubricat-

ing oil pump at the time of the delivery of the

vessel to the respondent.”’

The somewhat confused opinion of the Court of

Appeals seems to have agreed with this view. It is

said, p. 491:

‘*Tt is true that, from the fact that the shaft

broke almost immediately after the delivery of

the vessel it could properly be inferred that it

was defective at the time of delivery. The

Southwark, 191 U. S. 1, 13-14; Federal For-

warding Co. v. Lanasa, 4 Cir., 32 F. 2d 154,

156-157; The Nomad, D. N. J. 3 F. Supp. 535;

Serutton on Charterparties and Bills of Lad-

ing (12th ed.) pp. 101-02. It is also true that

the exercise of diligence to discover the defect

or lack of knowledge of it is immaterial, the

terms of the charter party or of a controlling

statute not being to the contrary. Work v.

Leathers, 97 U. 8. 379; The Caledonia, 157 U.S.

124; The Carib Prince, 170 U. 8S. 655; Federal

Forwarding Co. v. Lanasa, supra.”’

The owners never claimed in their libel, nor at any

stage of the proceedings before the District Court or

before the Court of Appeals that the vessel was ten-

dered to the charterers in a seaworthy condition, or

that the owners had complied with their representa-

tion and warranty in the charter, line 5, that the ves-

aeeghat Deeg k a

EET AE RE ME A Ot et NL SIELOM ig DELLE NLR LG LEAL ES RIEL IE R ROLES

. Lay eee 3 ‘ EF: PEN re

—

sel was ‘‘with hull, machinery and equipment in a

thoroughly efficient state’’ and that she should be on

her delivery, lines 20, 21 ‘‘tight, staunch, strong and in

every way fitted for the service.’’

Similarly, the owners have never suggested that

they have complied with Clause 14 of the charter

printed supra, p. 4 that written notice of readiness

should be given not later than 4 p. m. on December 31

and otherwise charterers to have the option of cancel-

ing not later than the day of vessel’s readiness.

The vessel was not ready on December 31 and the

owners could not have given any notice of actual read-

iness at any time on that day, let alone 4 p. m., which

was the canceling hour. The vessel certainly was not

ready while she was immobilized waiting the repair

of the shaft which was not completed until January 3.

Kvernes, 104; Log, 295.

The charterer, on being advised by cable from

Sandefjord that the vessel had returned to Sandefjord

Friday night owing to breakdown of auxiliary motor,

sent a cable on 3 January which was delivered to

owners’ agent at Oslo the same day. Hz. P, 489, Aaby,

423, as follows:

‘*CHARTERERS SAY TENTO DELIBERATELY DE-

LIVERED NOT PROPER CONDITION REFUSE ACCEPT

SHIP CONSIDER CHARTERPARTY CANCELLED.’’

A cable of similar purport was sent the same day by

Smith in London to owners’ broker at Oslo. Ez. P,

491, Aaby, 423.

No notice of readiness was ever given on January

3, the first date when it could have been given.

DECISION OF THE DISTRICT COURT.

The conclusion of the District Court was that

despite the breach of the warranty of seaworthiness

and fitness and efficient state of the machinery, and

despite complete breach by the owners of the require-

ments of Clause 14 of giving notice of readiness before

4 p. m. December 31, the owners had made a good

delivery and the rights of the parties were thereafter

determined by the provisions of the charter. The

opinion of the District Court says, 1433:

‘‘It appears from the facts already found

that the vessel was delivered to, and accepted

by, the respondent prior to the canceling date,

and thereupon started performance of the char-

ter. The vessel was thus brought under the

charter, and the rights of the parties are to be

governed by its terms. Clause 15 provides:

‘That in the event of loss of time from * * *

breakdown or damages to * * * machinery * * *

the payment of hire shall cease for the time

thereby lost, * * *’.

‘Under the decisions, this clause furnishes

the only measure of damage for lost time due to

the specified contingencies. ”’

The result of that decision is that if an owner after

neglecting to ascertain the condition of his vessel by

making the customary test tendered an unseaworthy

vessel and the charterer accepted it when unaware of

the unseaworthiness, he is bound to go on with the

charter just as if a vessel complying with owner’s war-

ranty of unseaworthiness had been tendered.

Acceptance of a vessel by a charterer with knowl-

edge of its unfitness is one thing. Where, however, a

Lee CERCA SERRE MRR RNR SS Sto Re TAS RESP eros —

charterer has no knowledge of the unfitness and the

owner has neglected his duty and the means of ascer-

taining the unseaworthiness of the vessel, quite another

situation is presented.

DECISION OF THE COURT OF APPEALS.

The decision of the Court of Appeals affirmed

the decree below, but on a different ground and one

not ever urged by the shipowners. The Court agreed,

p. 491, that the shaft that broke was defective at the

time of delivery and it was immaterial whether dili-

gence had been used to discover the defect or whether

there was knowledge of the defect. The view of the

court seems to have been, p. 492, that the defective

shaft at the time of delivery ‘‘does not mean that there

was necessarily a breach of the undertaking expressed

here as ‘vessel on her delivery to be tight, staunch,

strong and in every way fitted for the service * * *’.

Such an undertaking seems to be equivalent to what is

generally ealled a warranty of seaworthiness that is

employed in all contracts concerning vessels in the

absence of an express and unambiguous stipulation to

the contrary.’’ The opinion says further, p. 492:

‘“The evidence tends to show that the break-

ing of the shaft was of little importance with

respect to the operation of the vessel, though it

is apparent that the defect was not remediable

at sea or in a few minutes with the materials

available on board.”’

This seems directly contrary to the evidence as

indicated, supra, pp. 19, 20.

— EIN RITE LS LPL LT GIT HL SPR, NETL TE CE OO LO EN ON Ne OPEN

The Court then says, p. 492:

‘‘Authoritative support for the view that

any breach of the undertaking of seaworthiness

permits repudiation has, however, not been

found.”’

Yet this statement is immediately refuted by the

following paragraph of the opinion, p. 493:

‘‘The general American view is that a ‘war-

ranty’ is a guaranty that a certain fact is true.

See 4 Williston on Contracts §1075. Thus,

when an owner ‘warrants’ that a certain situa-

tion exists, he promises that it does exist, and

the obligation of the charterer is conditioned

upon the existence of that situation. Davison v.

Von Lingen, 113 U.S. 40.

‘*By this definition, then, any breach of war-

ranty permits rescission, as well as an action for

damages.”’

The opinion then contains a discussion of warranty

of seaworthiness which can only be described as thor-

oughly confused and depriving the warranty of any

substantial effect unless, p. 495, ‘‘The breach of the

owners’ undertaking of seaworthiness is so substantial

as to defeat or frustrate the commercial purpose of the

charter.’’ The Court then said, p. 495:

‘‘An insubstantial breach of it [the under-

taking of seaworthiness] not going to defeat the

object of the contract will not justify repudia-

tion. This, it is true, may raise some specula-

tive difficulties. ’’

It was then said, p. 496:

‘*Two and a half days delay in the course of

a twelve months time charter can hardly be con-

Se TR: BEY SSIES CREEL MRR ABT LA MN RET INS RON BNO IIA ALES EN RAN a Sqn ana Re

sidered so substantial as to frustrate the pur-

pose of the charter and under this view, we need

not deal with the contention of the owners that

the charter having been entered upon, the

breakdown clause or the clause excepting acci-

dents to machinery controls, except to point

out how such a contention appears to be incon-

sistent with the whole body of the law relating

to seaworthiness. See The Caledonia, 157 U.S.

124; The Carib Prince, 170 U. 8. 655.”’

Thus the Court throws overboard the ground on

which the decision of the District Court was based and

the only ground urged by the shipowner in either

court.

The opinion does not mention a complete breach

by the shipowner of the provisions of Clause 14 under

which if written notice of readiness should not be given

by 4 p. m. on December 31, the charterer had the option

of canceling the charter ‘‘at any time not later than

the day of vessel’s readiness’’. Yet the charterer gave

notice of cancellation on 3 January, the earliest date

p. 9

when owners could have given a notice of readiness.

In the result, the charterer has been held obligated

to proceed with the charter, although unaware of the

breach of the owners’ warranty of seaworthiness and

fitness of the vessel on tender.

This holding is in despite of the fact that the

owners in the District Court stated in their reply brief,

‘When a vessel is tendered under a charter

in unseaworthy condition, the charterer has a

right to reject her. No one disputes that. * * *’’

p. 12. ‘‘The charterer has the undoubted right

to reject the vessel for unseaworthiness on

tender.”’

The concession was repeated by owners’ counsel in

their brief, p. 34, in the Court of Appeals.

The charterer has been deprived also of its contract

right to cancel ‘‘at any time not later than the day of

vessel’s readiness”’ if notice of readiness should not be

given on or before 4 p. m. December 31.

FIRST POINT.

THE WARRANTY OF SEAWORTHINESS WAS ABSOLUTE,

MATERIAL AND WAS BROKEN. 'THE CHARTERER WAS EN-

TITLED TO DECLINE TO PROCEED WITH THE CHARTER.

The opinion of the Court of Appeals, p. 493, says:

‘‘The general American view is that a war-

ranty is a guaranty that a certain fact is true.

See 4 Williston on Contracts, §1075.”’

Section 1075 . vv illiston deals with charter parties

and contains the following language:

“Tf, however, statements of fact are made

in the charter-party itself relating to the vessel

or to some material matter connected with the

voyage, they are called ‘warranties’. The un-

truth of such a statement in a charter-party will

justify a refusal to accept the vessel. For this

reason in modern English terminology the ship-

owner’s obligation is called a ‘condition’ rather

than a ‘warranty’. The older term ‘warranty’

which is still in general use in America is far

better.

‘‘<¢Guaranty’ and ‘warranty,’ ‘guarantee’

and ‘warrant’ are obviously the same words. To

attach different legal effects to them surely

would be unfortunate. When an owner guar-

antees or warrants that a situation exists or that

Sa PED NIE Y CAE ASR ae be PELE ELS, OL LES TE

his ship shall do something, a business man would

properly understand not merely that he agreed

to pay damages, but that che obligation of the

charterer to perform the contract depended on

the owner’s making good the guaranty or war-

ranty, that is, that it operates both as a promise

and as a condition. * * * But in the United

States the untruth of a statement material

enough to be called a ‘warranty’ operates also

as a condition which will excuse a refusal to

accept a vessel.”’

Warranties are of different kinds. Sometimes, as

in Davison v. Von Lingen, 1884, 113 U. S. 40, cited by

the Court of Appeals, the warranty relates to the posi-

tion of the vessel. In that case, this Court said, p. 49:

“That the stipulation in the charter-party,

that the vessel is ‘now sailed, or about to sail,

from Benizaf, with cargo, for Philadelphia,’ is

a warranty, or a condition precedent, is, we

think, auite clear.”’

The statement was not true and this Court held

that the charterer was entitled not only to decline

to load the vessel but also was entitled to recover dam-

ages for the owner’s breach of warranty.

The opinion of the Court of Appeals says further,

p. 493:

“Thus when an owner ‘warrants’ that a

certain situation exists, he promises that it does

exist and the obligation of the charterer is con-

ditioned upon the existence of that situation.

Davison v. Von Lingen, 113 U. 8. 40. By this

definition then, any breach of warranty permits

rescission as well as an action for damages.”’

——_— OEE LORE ROI I BHF ap gos ego E are CPG CENTRE SE FTP RT ORE IT

Here the warranty related to the physical condi-

tion of the vessel.

It is impossible to suggest any more material matter

in a warranty in a charter party than that the vessel

is seaworthy and ‘“‘in a thoroughly efficient state’’,

line 5 of charter, and ‘‘tight, staunch, strong and in

every way fitted for the service’’, line 21 of the charter.

The requirement that the vessel shall comply with such

a warranty is necessarily the basis on which a charterer

undertakes to use a vessel.

A time charterer has to make his own commitments

with respect to cargo. If he does not ship his own

cargo he has to contract with shippers. In either event,

it is essential that a seaworthy vessel be provided for

the carriage of the cargo. If such a vessel is provided

at the outset and subsequently either meets with a mis-

hap or becomes unseaworthy, the owner must restore

the vessel to a condition of seaworthiness. If the time

necessary to do that should be so extensive as com-

pared with the period of the time charter as to frustrate

the adventure, the charterer certainly would be relieved

from dealing further with the vessel, except that there

might be a further claim by the charterer against the

shipowner.

Where, however, the vessel is in an unseaworthy

condition when tendered at the beginning of the

charter, the time charterer should not be obliged to

accept her, but should be free to reject her because of

breach of warranty. Such has been the law hitherto.

The right of the charterer to reject the vessel under

those circumstances has been conceded by the owners

in their statements in their briefs in the District Court

and in the Court of Appeal as indicated supra, p. 27.

PRE MEER GY OTERO ELOY RRR ASIN SP EA ATEN EIST SNS RON, NC SPELLS AN AAS MOET

Although the owners agreed that ‘‘No one disputes

that’’ the charterer may reject the vessel under such

circumstances, the Court of Appeals here has affirmed

such a right without any authority being cited in its

support and directly in conflict with long-settled law.

Thus it is said in Williston on Contracts $1080, on

a breach of warranty in a charter,

‘*But when once it has been determined to

be material and, therefore, a warranty, any

breach whatever is operative to entitle the in-

jured party not only to sue for damages, but

also to refuse to continue performance.”’

The formula invented by the Court of Appeals, p.

495, is that a rescission, or what it called a repudiation,

by a charterer is permitted only where the owner’s

breach of warranty is so substantial as to frustrate the

commercial purpose of the charter. This seems to be

based on three English cases, Tarrabochio v. Hickey,

Tully v. Howling and Stanton v. Richardson, which

are mentioned in the petition, p. 8, and which cer-

tainly do not support the Court’s formula. The Court

also says, page 495:

‘“‘There are no American eases to the con-

trary.”’

Yet an earlier decision by the same Court is directly

contrary to its formula. In Ronalds v. Leiter, C. C. A.

2d, 1901, 109 Fed. 905, a yacht had been chartered in

November to Leiter for two months from November

9. When the vessel was on the way to Tampico on

December 20 there was a breakage of the starboard

propeller shaft and the starboard propeller fell into

the sea. The charterer abandoned the cruise and

brought suit for the damages sustained through the

unseaworthiness of the yacht. The jury found the

vessel to have been unseaworthy when chartered and

awarded the charterer damages. The Court of Ap-

peals said, Brown, J., page 907:

‘‘We are of opinion that the rule adopted by

the court below was sufficiently favorable to the

owner. The vessel being found unseaworthy, the

jury were directed in accordance with the deci-

sion of the supreme court in Strong v. U. S., 154

U. S. 632, that the charterer might have aban-

doned the yacht on discovering this fact, without

further liability to the owner.”’

The charterer was relieved from the obligation men-

tioned in the charter of returning the vessel to New

York at the expiration of the charter. The case is direct

authority that when the charterer discovered unsea-

worthiness which had existed when the vessel was

tendered under the charter, he was entitled to decline

to go on.

An English case directly in point and contrary

to the statement in the opinion of the Court of

Appeals, 1177, is New York & Cuba Mail v. Eriksen,

1922, 27 Com. Cas. 330. The situation is on all fours

with the present case and is a holding that where

a vessel is unseaworthy when tendered under a char-

ter, the charterer is not obliged to take her. In

that case, a charter provided that the vessel, after dis-

charging her inward cargo, should proceed to certain

ports to load. The vessel discharged her cargo by

4 p. m. on November 24. On November 25, she pro-

ceeded to her loading place, moored there at 3:45 p. m.

and at 4 p. m. the master gave notice of readiness to

LTP EAGT ANTE OORT ES TREE IRS RENAE A HAMANN ARN PURI HS BATRA, BS CORT RON RE SRN EEE

load. The cancelling hour was 6 p. m. The court said,

page 332:

“Tt is clear that when after discharging she

started to move to No. 3 dock or to the mooring

place in No. 3 dock, she began her service under

the charter party and that the express condition

of seaworthiness contained in Clause 2 came into

operation.”’

When the notice of readiness was given, there were

a number of boiler tubes which required renewing and

there was no prospect of the work being completed for

at least ten days. The charterers refused to load and

cancelled the charter. Under a subsequent arrange-

ment between the parties, loading began five days later

on 30 November and was completed on 8 December.

The dispute went to arbitration and the arbitrator held

that the charterer was entitled to refuse to load. The

court said, page 335, that the finding of the umpire

was right in law. It was said, page 336:

‘‘In my judgment that clause means what it

says, namely that when the ship proceeds to her

loading berth she is to be tight, staunch and

strong and in every way fitted for the intended

voyage; that is to say she was to be so fit at the

latest at 3.45 p.m. on November 25. There are

not two conditions as to seaworthiness, one that

applies during the loading and another that

comes into operation when she sails. There is

only one condition which applies when she starts

on her chartered service. She is to be fit to com-

mence her chartered enterprise, which consists

of going to her loading berth, loading, sailing

and unloading. * * * p. 337. In my judgment

the umpire was right in law in coming to the

conclusion that the charterers were entitled to

refuse to load the ship.”’

3 é Cite pat Dackeanite NAIR, oven . i ee ete 3 5 oA nik wine

Sarr sper eyane eget NS RE RN TRIM MRS rH eS MDF RIS, Re REL de SW EL EH IAT VTS PO OT RS SP

Thus, in the foregoing case the vessel was con-

sidered to have been in service under the charter. Yet

when the charterers ascertained that the express con-

dition of seaworthiness, when she started on her char-

tered service, had not been fulfilled, they cancelled

the charter. Clearly the doctrine of frustration of

adventure did not enter into the case as, five days later,

under a new arrangement between the same parties, at

a lower rate of freight the vessel began to load cargo.

This decision seems to have been ignored by the

Court for it is not mentioned in the opinion, perhaps

because it could not be answered.

American law has hitherto conformed strictly to

English law as stated in New York & Cuba Mail v.

Eriksen. There seems to be much more reason to con-

tinue the conformity than to vary from it. As this

Court stated in The Eliza Lines, 1905, 199 U.S. 119,

128:

‘“‘Of course it is desirable, if there is no

injustice, that the maritime law of this country

and of England should agree.’’

The opinion of the Court of Appeals in referring,

p. 496, to ‘‘the whole body of the law relating to sea-

worthiness’’ referred to The Caledonia, 1895, 157 U. S.

124, and to The Carib Prince, 1898, 170 U. S. 655. The

Caledonia quoted from The Edwin I. Morrison, 153

U. S. 199, 210, that the warranty of seaworthiness was

absolute and did not depend on the owner’s knowledge

or ignorance, his care or negligence. Other cases might

be mentioned.

American cases have never admitted that a war-

ranty of seaworthiness is satisfied if the vessel is

AR RES PEE PERO INL A IRIE HSL IIE ERT EL CFESA EY PO DP OEM SaaS

almost seaworthy, or seaworthy in some respects, but

not altogether. Yet the Court of Appeals says, p. 495:

‘‘We take it then that the undertaking of

seaworthiness is to be treated like any other

contractual undertaking not expressly made a

condition precedent to a party’s performance

of his obligations.”’

This is a new principle of law advanced by the

Court of Appeals, which is wholly irreconcilable with

other statements in its opinion and decisions of the

Supreme Court that the warranty of seaworthiness is

absolute. It is the basis on which the owners and char-

terer contracted.

The suggestion in the opinion of the Court of

Appeals, p. 492, that ‘‘not every defect needing repair

or causing damage amounts to a breach of undertak-

ing’’ may be true with respect to some undertakings,

but it has not any bearing whatever on the question of

warranty of seaworthiness by a shipowner in a time

charter. It is not apparent why the Court should have

referred to the three cases of Middleton v. Ocean

Dominion, 1943, 137 F. 2d. 619, 622; The Sandfield,

1898, 92 Fed. 633 and Hedley v. Pinkney, 1894 A. C.

222.

In Middleton v. Ocean Dominion, a vessel stranded

because a master, on sailing, had not paid attention to

notices given to him and had not transferred the infor-

mation in the notices to a chart. The court said, refer-

ring to Standard Oil Co. v. Clan Line, 1924 A. C. 100:

“The fault was plainly that of the owner,

while here the master was supplied with every-

thing necessary for navigation and only his

neglect caused the accident.”’

This fault of the master did not render the vessel

unseaworthy.

In The Sandfield, a cargo of sugar had been dam-

aged by seawater which entered the hold by leakage

around a rivet which became loosened by the vibration

of the vessel in weather of extraordinary severity.

The Court said, p. 665:

‘“‘The theory upon which it is insisted that

the steamship was unseaworthy is that the rivet

in question was defective. Undoubtedly the

rivet was not as perfect as the workman might

have made it, and was less capable of resisting

the effects of strain and vibration than if it had

been as absolutely strong and perfect as the best

or average of the many thousand rivets in the

vessel, but we agree with the district judge who

decided the case in the eourt below that ‘any

such mere inequality in the strength of the

rivets does not amount to unseaworthiness.’

* * * Tt does not follow, because the rivet

loosened in consequence of the extraordinary

strain which the vessel encountered, that it was

one which would have been pronounced insuffi-

cient by men of competent judgment, upon an

examination and full appreciation of its condi-

tion at the beginning of, the voyage.”’

Certainly this is not a decision that there was a

defective rivet that was negligible in determining the

question of unseaworthiness.

In Hedley v. Pinkney, a seaman had been drowned

after being washed overboard through a space in the

starboard bulwarks where stanchions and rails that

had been provided had not been put in place. It was

claimed that the master was negligent in not having

the stanchions and rails fixed before the bad weather

Se ak aa ee ea aa ae SRR a

came on and that there was also on a breach of duty by

the master to keep the vessel in a seaworthy condition.

It was held that the vessel was not unseaworthy be-

cause, p. 228,

‘‘She was in all respect efficiently equipped.

The fault was in not making use of the equip-

ment with which she had been furnished. * * *

the words ‘to keep her in a seaworthy condition

for the voyage during the same’ point to an

obligation of the same character, and not to a

neglect properly to use the appliances on board

a vessel well equipped and furnished.”’

The opinion of the House of Lords referred to

Steel v. State Line Steamship Company, 3 App. Cas.

72, where a port hole was insufficiently fastened, but

could have been speedily shut if occasion required.

Failure to shut it was negligence of the crew and not

unseaworthiness of the ship. This is in accord with

the decision of the Supreme Court in The Silvia, 1898,

171 U.S. 462. ,

The reference by the Court of Appeals to the fore-

going decisions immediately precedes the statement,

p. 492:

‘‘The evidence tends to show that the break-

ing of the shaft was of little importance with

respect to the operation of the vessel, though it

is apparent that the defect was not remediable

at sea or in a few minutes with the materials

available on board.”’

It seems extraordinary that the breakage of the

shaft could be described as ‘‘of little importance with

respect to the operation of the vessel’’ when, as shown

by the references to the testimony, supra, p. 19, the

SUP LARS RR eH Mate SO RAR OE RAt IIA BAS EP IIA en SPOTS MDH A RUN BR UA NOLES AE DER OR Ta ES II MRIS

vessel, after the shaft broke, drifted for two hours

down toward the reefs, finally anchored, and being in

a dangerous and very exposed position, more than 24

hours later, was towed by a tug to a safer anchorage.

The vessel was completely immobilized for two and a

half days. It cannot be supposed that she would have

remained in that condition if she had been able to pro-

ceed. Nor is it reasonable to suppose that the vessel’s

officers considered the breakdown and consequent

delay a minor matter.

SECOND POINT.

CHARTERER HAS BEEN DEPRIVED OF ITS RIGHT TO

CANCEL UNDER CLAUSE 14 OF THE CHARTER.

Clause 14 of the charter contains the words:

‘¢ * * * should vessel not have given written

notice of readiness on or before December 31st,

1937, but not later than 4 p.m. Charterers or

their Agents to have the option of canceling this

Charter at any time not later than the day of

vessel’s readiness.”’

The facts detailed in the Petition, page 4, and in

this brief, supra, page 23, show that the owners never

gave any notice of readiness on or before December 31

at 4 p.m. On December 29 owners gave notice that the

vessel would be ready for delivery on December 31.

She was not, however, ready at that time, although she

was tendered at 3.30 p. m. and was accepted by char-

terer through its representative, who was ignorant of

the condition of the ship’s machinery. Both courts

have found that the vessel was unseaworthy at that

time. The unseaworthiness which manifested itself

about twenty minutes after tender in the breakage of

the shaft of the lubricating oil pump, was not repaired

until the early morning of January 3. That was the

earliest time when the owners could have tendered a

notice of actual readiness. That time overstepped the

canceling date by two and a half days. Charterer on

that date gave notice of cancelation, which was strictly

within the right given in Clause 14.

The Courts below seem to have deprived the char-

terer of its contract right of cancelation because of the

notice of delivery signed in reliance on the owners’ war-

ranty of seaworthiness and representation that the

vessel was ready.

It is not commercially practicable for a charterer to

have a detailed survey made of a vessel, her machinery

and equipment at the time that she is tendered under a

time charter. Indeed, as the owners stated in their

brief in the Court of Appeals, page 10:

‘‘It may be conceded, howeyer, that no ordi-

nary inspection by the charter, would have dis-

closed any defect in the shaft of the pump, even

assuming that such a defect had then existed.”’

There can be no doubt that the defect existed as

both Courts have found that the vessel was unseaworthy

with respect to the shaft at the time of delivery. The

result seems to be that a time charterer is obliged to

accept a vessel as complying with the owners’ warranty

of seaworthiness and fitness even though an ordinary

examinatior might not disclose the unseaworthiness.

If this doctrine of law should be accepted, it is not

apparent how a charterer could ever protect himself

against accepting an unseaworthy vessel unless the un-

seaworthiness was manifest on tender.

— ad ,

a RMS WR AS LEIS R TBE MOEN CLINI LLM

The unseaworthiness here was directly concerned

with the shaft of the lubricating oil pump and was not

manifest on tender.

If a similar difficulty had existed with respect to

the main shaft of the vessel, it certainly could not have

been discovered on any ordinary examination of the

vessel at sea and could only have been found if the ves-

sel had been put on drydock and her tailshaft drawn.

If, in such ease, the shaft were found to be unseaworthy,

the vessel certainly would not be ready and charterer

would be entitled to cancel.

Similarly in this case, if an examination had been

made that would have disclosed the defect in the shaft

of the lubricating oil pump on December 31, the char-

terer would not have been obliged to take the vessel, but

could have given notice of cancelation immediately. In

fact the charterer gave notice of cancelation strictly

within the terms of Clause 14, which provided that if

the vessel was not ready by 4 p.m. on December 31,

charterer could cancel ‘‘at any time not later than the

day of vessel’s readiness.”’

LAST POINT

WRIT OF CERTIORARI SHOULD BE GRANTED IN ACCORD-

ANCE WITH THE PRAYER OF THE PETITION.

Dated New York, July 25, 1950.

Respectfully submitted,

CHARLES R. Hickox,

CLETUS KEATING,

Counsel for Petitioner,

120 Broadway,

New York 5, N. Y.

SADR PR TES ARE PGA OPO IEEE

INDEX

Proceedings Below

Statement of Facts

Porst |1—There is no such diversity of authority be-

tween the circuits as would warrant the granting of

a writ of certiorari 18

Pornt 1I—The breakdown clause in Article 15 of the

Charter provides exclusive remedy in cases of acci-

dent to machinery 19

Point I]I—Petitioner’s contention ignores Clause 16

of the charterparty which contains a mutual excep-

tion of “all dangers and accidents of the seas,

rivers, machinery, boilers and steam navigation”........ 23

Pornt [V—Petitioner could not cancel after delivery... 25

Porst V—A charterparty may be repudiated after a

vessel has been delivered only when breach thereof

is such as to frustrate its purposes 27

Pornt VI—Petitioner’s authorities support a claim for

damages, not repudiation 30

Last Pornt—The petition for a writ of certiorari

should be denied 38

PSE BEN MAT RARE PE ES DERE Te SM LN IRC REE ONE UW hy ROE LPR aR Me EA "

TABLE OF AUTHORITIES

Ainesworth Coal & Iron Co. v. Grangesberg olen

287 Fed. 291 27

Aktieselskabet Stavangeren v. Hubbard-Zemurray SS.

Co., 250 Fed. 67 21

Ansgar SS. Co. v. Brauer SS. Co., 121 Fed. 426... 10

Arrow Petroleum Co. v. Johnston, 162 F. (2d) 269... 29

The Ask, 156 Fed. 678 20

Barker v. McAndrew, 18 C. B. (N. S.) [59 acseoceesnceneueen 24

Bentsen v. Taylor, 1893, 2 Q. B. 274 32

The Bjornefjord, 271 Fed. 682 21

Blackburn v. Liverpool ete., Nav. Co., 1902, 1 K. B.

290 24

Carver on Carriage by Sea, 8th Edition 16, 23

Clipsham v. Vertue, 5 Q. B. 265 33

Clyde Commercial SS. Co. v. West India SS. Co., 169

Fed. 275, 278 20, 23

Culliford v. Gomila, 128 U. 8. 135 19

Davidson v. Gwynne, 12 East 381 27

Davison v. Von Lingen, 111 U. 8. 40 34, 35

The Driebergen, 60 F. 2nd 657 32

The Essex Envoy, 35 Com. Cas. 61 22

Federal Forwarding Co. v. Lanasa, 32 F. (2d) 154.34, 37

The Fri, 154 Fed. 333 23

Giertsen v. Turnbull, 1908 Sess. Cas. 1101 24

iil

PAGE

The G. R. Crowe, 294 Fed. 506 23, 24

Helgar Corporation v. Warner’s Features, 222 N. Y.

449 28

Hildebrand v. Geneva Mill Company, 32 F. (2d) 343... 28

Hoskyn v. Silver Line Limited, 63 F. Supp. 452, 457;

aff'd 143 F. (2d) 462; cert. denied 323 U. S. 767... 14

Jones v. Barnes-Ames Company, 244 Fed. 116... 25, 26

Knutson v. Metallic Slab Form Co., 128 F. (2d) 408... 29

MacAndrew v. Chapple, L. R. 1, C. P. 648 28, 33

Mercantile SS. Co. v. Tyser, 7 Q. B. D. 73 23

The Miranda, L. R. 3 A. & E. 561 23

N. Y. & Cuba Mail Co. v. Eriksen, 27 Com. Cas. 330... 36

Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303..19, 21

Ronalds v. Leiter, 109 F. 905 37

Serutton on Charterparties, 14th Edition 27, 33

Snia Societa ete. v. Suzuki & Co., 29 Com. Cas. 284........... 29

Societa Anonima ete. v. Federal Ins. Co., 62 F. (2d)

769 23

Standard Oil Co. v. U. 8., 264 Fed. 66 24

Stanton v. Richardson, L. R. 7 C. P. 421, aff’d L. R.

9 C. P. 390 29

Tarrabochia v. Hickie, 1 H. & N. 183 28, 33, 35

The Toledo, 30 Fed. Supp. 93 (E. D. N. Y., 1939), aff’d

122 F. (2d) 255 22

Tynedale Shipping Co. v. Anglo-Soviet Shipping Co.,

41 Com. Cas. 206 24

FITC INE ALLE HEELS TREN RTE PRAM LE ULI EA CNN OR EY OLS PLE LO ED BERS et NFER

Supreme Court of the United States

OCTOBER TERM, 1950

No. 230

States Marine Corporation,

Petitioner,

against

Ynevar AaBy, Hevea Lycue, Ertinc Aasy and

E. B. Aapy’s ReperiaKTIESELSKABET,

Inbelants-Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Proceedings Below

Petitioner seeks to review a decision, dated April 12,

1950, of the United States Court of Appeals for the Second

Cireuit (R. 490), which affirmed the decision of the District

Court in favor of libelants-appellees.

This is an Admiralty suit brought in the United States

District Court for the Southern District of New York to

recover damages in the amount of about $125,000 (R. 8),

as a consequence of the petitioner’s refusal to perform a

12-months’ time charter, dated August 10, 1937, of the s/s

Tento (Exhibit A attached to the libel and reproduced

opposite p. 12).

“—

The libelants are the owners, or the representatives of

the owners, of the T’ento; no question is raised as to their

title to maintain the suit (R. 472).

The case was tried in the District Court by Coxe, D. J.,

and, on July 26, 1948 (RR. 470-481), he rendered an opinion

in which he directed that a decree be entered for the libel-

ants with a reference to a Commissioner to assess the

damages. On January 10, 1949, Judge Coxe signed an

interlocutory decree which stated that his findings and

conclusions were contained in the above-mentioned opinion

(R. 482, 483).

Petitioner’s appeal from this interlocutory decree came

before Judges Learned Hand, Swan and Chase, and the

decision below was unanimously affirmed, opinion by Chase,

C. J. (R. 490-497).

Petitioner’s petition for a re-hearing (R. 498-511) was

denied on May 4, 1950 (R. 512, 513).

The four experienced judges who have passed on this

cause have unanimously held that libelants are entitled to

recover, and there is no significant difference between the

opinion of Judge Coxe, in the District Court, and that of

Chase, C. J., in the Court of Appeals. No final decree has

vet been entered, and the amount of damages has not yet

been fixed.

The question presented is whether the charterer incurs

liability when there is an “insubstantial breach” (R. 495)

of a 12-months’ time charter which, because “the charter

market had fallen”, the charterer “seized upon * * * to

repudiate the entire charter” (R. 471).

The decision rests on the peculiar facts of the case and

upon the terms of a charter party now more than 13 years

old; it is of no interest to the public generally but only to

the parties involved.

A writ of certiorari will be granted “only where there

are special and important reasons therefor” (Rule 38, See.

5). Subdivision B of Section 5 specifies the class of cases

where a writ of certiorari will be granted to review a de-

cision of the Court of Appeals, as where the decision is in

REO, MEER ENTRIES HEE _4

conflict with the decision of another Court of Appeals on

the same matter, or where it is in conflict with applicable

local decisions, ete.

There is no decision of any other Court of Appeals at

variance with the decision now under discussion, nor is

there any “conflict with applicable local decisions.”

Petitioner lists (petition, pp. 6-13) six reasons why the

petition should be granted but they consist merely of un-

founded assertions that the decisions below were incorrect.

The case is reported below in 80 F. Supp. 328 (R. 470-

481), and in 181 F. (2d) 383 (R. 490-497).

In view of the incorrect statements in the petition, it is

necessary to restate the facts.

The Facts

The proceeding was brought for petitioner’s failure to

perform a contract embodied in a charterparty in writing

dated August 10, 1937, whereby the Norwegian Motorship

Tento was chartered to petitioner States Marine Corpo-

ration for a period of twelve months from the time of

delivery which was to be between November 14th and De-

cember 31st, 1937, inclusive. She was delivered December

31st, 1937, at which time petitioner instructed its agents

to accept delivery if delivered prior + P. M. December

31st, dispatching towards St. John, N.B.: “If (the vessel)

misses cancelling date and hour would prefer release vessel

and would consider ourselves fortunate” (R. 440). The

reason for charterer’s preferring to release the vessel was

that the charter market had fallen between August LOth

and December 31st. This was the finding of the District

Judge who had heard the testimony (R. 471). The Tento

was delivered on December 31st, 1937, and was ordered by

petitioner to proceed toward St. John, N.B. and to com-

municate by wireless when five days out for orders.

Shortly after delivery a small shaft of the lubricating oil

pump in the No. 1 auxiliary motor broke (R. 469). This

was found by the District Judge who heard the testimony

“to be a minor accident (R. 479).

The Tento was a diesel engine twin screw cargo vessel of

4,917 gross tonnage, built at Oslo in 1921 and having the

highest class rating in Lloyds during 1937 and 1938 (R.

+73). The Tento had five diesel motors on board, two main

motors which had nothing to do with the matter and three

smaller auxiliary motors (R. 63-64). It was the breakage

of the lubricating oil pump shaft on one of these three sim-

ilar small auxiliary motors that caused the delay seized

upon by petitioners to repudiate the charter.

The material clauses of the charterparty are the fol-

lowing (R. 12):

“THIS CHARTERPARTY made and concluded upon in the

City of New York on the 10th day of August 1937, be-

tween E. B. Aasy, Oslo, Owners of the good Norw.

motorship TEnTo * * * Classed 100 A-1 at Br. Lloyd’s

* * * and States Martine Corporation, Charterers of

the City of New York,

WirtnessetH that the said Owners agree to let and

the said Charterers agree to hire the said vessel, from

the time of delivery, for about 12 (twelve) calendar

months. * * * Vessel on her delivery to be ready to

receive cargo with clean swept holds and tight, staunch,

strong and in every way fitted for the service * * * on

the following conditions:

1. That the Owners shall * * * keep the vessel in a

thoroughly efficient state in hull, machinery and equip-

ment for and during the service * * *.

14. That, if required by charterers, time not to com-

mence before November 14 1937 and should vessel not

have given written notice of readiness on or before De-

cember 31 1937 but not later than 4 P. M., Charterers

or their Agents to have the option of cancelling this

Charter at any time not later than the day of vessel’s

readiness.

15. That in the event of loss of time from deficiency

of men or stores, fire, breakdown or damages to hull,

machinery or equipment, grounding, detention by aver-

age accidents to ship or cargo drydocking for the pur-

pose of examination or painting bottom, or by any

other cause preventing the full working of the vessel,

the payment of hire shall cease for the time thereby

lost; and, if upon the voyage the speed be reduced by

defect in or breakdown of any part of her hull, ma-

chinery or equipment, the time so lost, and the cost of

any extra fuel consumed in consequence thereof, and

all extra expenses shall be deducted from the hire.

16. ** * The Act of God, enemies, fire, restraint of

Princes, Rulers and People, and all dangers and acci-

dents of the Seas, Rivers, Machinery, Boilers and

Steam Navigation, and errors of Navigation through-

out this charterparty, always mutually excepted. * * *

* * * * * *»)

The vessel was classed in Lloyd’s (R. 473). She was due

for her periodical Lloyd’s survey and, for that purpose, was

thoroughly overhauled at a shipyard in Sandefjord (R. 129,

473), which had been engaged in the business of build-

ing and repairing ships for about 50 years (R. 54, 473).

It was a large yard and had an excellent reputation (R. 54,

473). At the same time, engine repairs were made, in con-

sequence of some difficulty with the main engines (not

the auxiliaries) on the previous voyage (Hertzberg, R.

63-64, 71). All of this work was done under the super-

vision of Lloyd’s surveyor, Per Bjgrn Rgli, and of the

owner’s consulting engineer, Nicolay W. Coch, both of

whom have testified (R. 122-136).

The specifications under which the work was done (Ex-

hibit 1 attached to the testimony of Yngvar Aaby), pro-

vided:

“15, Lubricating oil pumps to be opened up and

cleaned for survey and necessary overhaul as requested

by Lloyd’s.

To be fitted together again and tested, everything

tight and in order.”

And see Coch (R. 129, 157).

—

This work on the lubricating oil pumps was accordingly

done, as part of the shipyard’s job. Chief Engineer Hertz-

berg testified (R. 55) :

“Q. Do you know whether the lubricating oil pump

of No. 1 auxiliary was opened up? A. Yes.

Q. Did you see it? A. Yes.

Q. What condition was it in? A. Good.

Q. Did you see the shaft which afterwards broke?

A. Yes.

Q. What condition was that in? P A. Was good.

Q. In what condition was the shaft as far as your

inspection showed? A. Very good.”

At pages 68-69 of the record:

“A. Yes, I saw the shaft.

Q. What kind of an inspection did you make of it?

A. It was opened up and examined for wear.

Q. What sort of an inspection did you make? A. I

also examined it and saw that the various parts in--

side were in order and that there was no wear. * * *

Q. How long were you inspecting this shaft that

subsequently broke? A. About 5 to 10 minutes, I be-

lieve.” ;

Lloyd’s surveyor, Per Bjgrn Rgli, testified that the Tento

had the highest class in Lloyd’s (R. 122); that he was in

charge of the survey made on her in December, 1937

(R. 123); that the lubricating oil pump of auxiliary No. 1

was opened up and examined; that the examination included

the shaft “which I found in good condition” (R. 123):

“The shaft was the usual size and the usual material

and was in good condition as far as I could observe

without making special measurements or making spe-

cial examination.”

“The ship’s machinery was tried under working con-

ditions and was found to be in good condition. Dur-

ing the trial of the machinery, the whole of the ma-

chinery was found to be in good condition. * * * When

the special survey was completed, the machinery

was in order” (R. 124).

ss ,

He gave a certificate (Exhibit A, R. 82) stating that the

vessel “is in good condition, in our opinion, eligible to

remain as now classed.” This certificate states in general

terms the scope of the examination and says:

“All the auxiliary engines, pumps, pumping arrange-

ments, starting air receivers, ete., opened up and ex-

amined throughout.”

All of the repairs required by Lloyd’s surveyor were made

(Knudtzon, R. 185-186).

The respondent-libelants’ consulting engineer, Nicolay W.

Coch, testified, that the vessel was due for a classification

survey (R. 129) and that he spent his entire time between

December 15th and December 31st, except for 4 days (pre-

sumably the Christmas holidays) in inspecting the work

(R. 129); that an examination of the pump in question

was made “by Lloyd’s surveyor and myself” and that the

pump was opened up for this examination (R. 130) ; that the

shaft was examined and found to be in order and that it

was a proper shaft for the purpose, both in size and in

material (R. 131). This pump was

“opened up, cleaned, overhauled and put together

again. We found the pump in good condition” (R. 131).

In his opinion, after ‘iis work, the engines, including the

auxiliary, were in goot order. The pump and shaft were

examined and approved also by Lloyd’s surveyor (R. 132).

The shipyard people testified to the same effect. Ygge-

seth was then Assistant Yard Superintendent (R. 105).

He testified with respect to the pump:

“The examination, cleaning and repairing was done

with my knowledge and the occasional inspection of

Lloyd’s inspector” (R. 105-106).

The shaft was examined and found to be in good order

(R. 105-106).

Wegger was then the Superintendent of the Yard (R.

113). He testified that he had general supervision of the

Rt ms NAN ARRESTS ROLE IETS AEE ES EAE RER LE

work but that the details were not done personally by him

(R. 113-114).

Mr. Ford testified (R. 336-337) that the examination thus

made was all that was required by good and prudent engi-

neering practice, There is no contradiction of this testi-

mony.

After the shipyard’s work on the Tento had been finished,

the engines and the auxiliaries were tested (Hertzberg

(R. 56-57) :

“The engines were tested at full speed while we were

lying at Sandefjord repair shops.

Q. How abvut No. 1 auxiliary? A. Also.

Q. For what period of time? A. About three hours.

Q. What load was on the auxiliary at that time? A.

Varying with about 300 amperes.

Q. How does that compare with the load it has in

actual service at sea? A. At sea it is about half of it.

Q. During that three hours, did anything develop that

was not right with the auxiliary or with the engines?

A. Nothing.

Q. Now, on the day that you sailed from Sandefjord,

December 31st, was the auxiliary run before sailing?

A. Yes.

Q. I mean in addition to the three hours you have

spoken of before? A. Yes.

Q. At what time was the auxiliary started on that

day—you ean look at the log books, if you want to.

A, (Referring to log book) Auxiliary motor No. 1 was

siarted at 11 A. M.

Q. And how long did it run? A. For departure—it

was used until and during departure.”

Departure was at 15 (3 P. M.) (Hertzberg, R. 57):

“Q. Up to the time when you sailed, did anything

go wrong with No. 1 auxiliary? A. No.

Q. At the time when you sailed, so far as you could

ascertain were the engines and auxiliaries in good

order? A. They were in good order.”

The master was present at each test and everything was

satisfactory (Knudtzon, R. 192).

The fact, that tests were made is also testified to by

Yggeseth (R. 108-109); Rgli (R. 124); and Coch (R. 133-

134). It was argued by the ~ “that no sea trial

was ™ 7., It is true that there was no extended sea trial,

but the ship ran from the shipyard down to the point of

delivery using the No, 1 auxiliary (Hertzberg, R. 57), in

addition to the tests of several hours made before sailing.

This pump and shaft had never given trouble before

(Hertzberg, R. 55) and none of the witnesses had ever

known such a shaft to break (Hertzberg, R. 55; Ford, R.

335, 417). The shaft may reasonably be expected to last

for the life of the vessel (Ford, R. 335; Hertzberg, R. 55) ;

and it is testified without contradiction that there was no

reason for renewing it or for anticipating trouble with it

because of age (Ford, R. 417).

The expert witnesses on both sides agreed that the pump

was of proper design (Ford, R. 334; Baruch, R. 355).

Meantime the chartering market had fallen “fifty cents

a ton for that type of vessel and the period of the charter”

(answer to 10th interrogatory annexed to the libel, R. 15),

and the charterer wanted to avoid performing the charter.

It is true that the charterer’s vice-president protested at

the trial that the charterer wanted the vessel (R. 405, 411-

412). If it had wanted her, all it had to do was to perform

its contract. But that the contrary is the fact is shown

by the charterer’s reiterated instructions to accept the

vessel “outermost place Sandefjord harbor limits provided

in time” (R. 405; also first cable in Exhibit 22, R. 432)

and the cat was let out of the bag completely by the char-

terer’s cable of December 30, 1937, to its London agent,

which forms part of Exhibit 23 and which reads as follows

(R. 440) :

“Tento instruct delivery at outermost point Sande-

fjord harbor outward pilotage only our account ac-

eepting vessel if delivers prior four peem 31st des-

patching towards St. Johns (sic) N B radioing

Statemarine New York five days off STJohns (sic)

— ; HERE SERA PIETERS EMIN BLY ERENT AES SPOLETO

for further orders but if misses cancelling date and

hour would prefer release vessel and would consider

ourselves fortunate.”

This shows that the charterer did not in fact want the

vessel and that it was looking for an excuse to get out of

its obligations under the charter. As the Court said in

Ansgar SS. Co. v. Brauer SS. Co., 121 Fed. 426, at 428:

“Tt is impossible to avoid the conclusion that the

vessel was redelivered to the owner rather because of

the falling market which rendered the contract a bur-

densome one to the charterer than on account of any

violation of the charter’s provisions by the owner.”

At or about the time when the repairs were finished, a

representative of the charterer, Johan Elligers, made a

survey of the vessel (Knudtzon R. 185) and apparently also

another representative of the charterer, Mr. Linaae, like-

wise made - inspection. (Knudtzon cross-interrogatory

R. 193). uigers testified (R. 325-326) that he did not go

down into the engine room but, if he did not, the other

charterer’s representative evidently did (Hertzberg R. 59).

It may be coneeded, however, that no ordinary inspection

by the charterer would have disclosed any defect in the

shaft of the pump, even assuming that such a defect had

then existed.

After the inspection, Elligers gave a certificate (Exhibit

C attached to the libel; admitted by the answer to inter-

rogatory 3 (a) annexed to the libel, R. 14, 17). This cer-

tificate read as follows:

“Survey Certificate.

The undersigned, Mr. Johan Elligers, has to-day to-

gether with Captain Knudtzon M/S ‘Tento’ surveyed

the vessel and found all ladders in good condition in

holds and on deck.

Cargo battens have been renewed where necessary,

and all are now in perfect condition.

Wooden ceilings partly renewed and now in good

condition.

The tunnel tops have been examined and found in

order without any defects and dents.

There are no defects inside or outside to be found

as the vessel has just passed survey at surveyor’s sat-

isfaction.

No defects being found at time of delivery.

Sandefjord, 31st December 1937

W. Kwuptzon

Master M/S ‘Tento’

JOHAN ELLICERS

Representative of Time Charterers”

The ship then proceeded down the fjord to the point

designated by the charterer for delivery, which was as far

out as possible. This place was fixed apparently in the

hope that the vessel would miss her cancelling date. She

was actually delivered at 3:30 P. M. on December 31st,

and a certificate of delivery signed by the master and by

the charterer’s agent was given. This is Exhibit B an;

nexed to the libel (R. 14) and admitted by the Sespessisaale

answer to the second interrogatory annexed to the libel

(R. 17). The certificate read as follows:

“Certificate of Delivery.

This is to certify that M/S ‘Tento’ was delivered on

time charter at the port of Sandefjord 31st December

1937 3.30 p.m.

Quantity of Diesel Oil onboard at time of delivery

251.55 tons.

Sandefjord, 31st December 1937.

for Sir William Reardon

Smith & Sons (London) Lim.

as per authority

p.p. Jean B. Linaae

W. Kwyuprzon

(signature illegible) Master M/S ‘Tento’ ”

The charterer then gave the master written orders to

“proceed towards St. Johns” (sic) “N.B. radioing Stat-

marine New York five days off St. Johns” (sic) “for

orders.” (Exhibit D annexed to libel, admitted by an-

swer to 6th interrogatory annexed to libel) (R. 15, 17).

Be The vessel then sailed.

omh

It will be seen that, up to this point, every effort had

been made by the owners to deliver the ship in proper

condition, and that she had been considered to be in proper

condition, not only by the owners and their consulting en-

gineer but also by Lloyd’s surveyor, by the shipyard people

and by the charterer’s representatives, who would have

been glad to refuse her if they could have found any excuse

for doing so.

Thus the statements that the vessel was broken down

at the cancelling time at 4 P. M. as made in page 18 of

petitioner’s brief, is primarily an attempt to draw the

attention of the Court from the obvious fact that at 3.30

P. M. when the vessel was delivered by respondents-

libelants and accepted by petitioner without any question

being raised of a written notice of readiness, all machinery

was in good working order (R. 491).

Under these conditions, the ship was delivered and en-

tered upon the charter. It is submitted that this delivery,

made in good faith and after due care, brought the vessel

under the terms of the charter from then on, and that the

subsequent minor breakdown was governed solely by

clauses 15 and 16 of the charter.

The shaft was discovered to have been broken at 4:20

P. M. on December 31st, when the vessel stopped to deter-

mine the extent of the damage (R. 491). The

ship drifted for two or three hours while the situa-

tion was being examined by the engineers (Knudtzon cross-

interrogatories 5(a) and 5(d) (R. 194); Kvernes (R. 34)).

She then came to anchor at about 7 P. M. and remained at

anchor until the following afternoon at 18:30 (6:30 P. M.)

(Knudtzon 5th cross-interrogatory R. 194-195; engine log

Exhibit 19 (p. 5) (R. 96); deck log Exhibit A attached to

Knudtzon’s testimony (pp. 2 and 3) R. 203). (The testi-

mony of Kvernes at R. 34-35, that she hove up her anchor

at 2 A. M. is obviously an error, in view of the entries in

both deck and engine log and of the other testimony. Prob-

ably Kvernes had in mind the fact that she sailed from

Siggrunn at 2 A. M. on January 3rd.) Meantime, a tug

_—

had been sent for to assist the vessel to port, since she

| was in a dangerous position near the shore in bad weather

| conditions, and she started from her anchorage at about

18:30 (Knudtzon ecross-interrogatory 5(g) R. 195; deck log,

supra). She had then been lying at anchor more than 24

hours, and the engines were, of course, cold, with the result

that the starting air became exhausted before the engines

picked up. But while she was towing in, more air was

pumped up and, before the ship reached Siggrunn, which

was at about 9 P. M., her engines were going and she actu-

ally used them in maneuvering to her anchorage.

The incident is of no importance whatever. It does not

show anything wrong with the condition of the engines

(Ford R. 419-420). As Mr. Ford said at the trial (R. 418-

420), “under cold-climate conditions, it often happens that

the engines are hard to start.” He suggested as the most

probable explanation that the engineers had assumed that

they had enough starting air and had therefore failed to

pump up any more (R. 419).

The ship anchored at Siggrunn at 21:05 (9:05 P. M.)

(Knudtzon R. 187-188) on Saturday, January Ist. On

Sunday morning, men from the shipyard came to the Tento

in a motorboat, took off the pump and carried it back to the

shipyard (Hertzberg R. 60-61). It was repaired during

the day and was reinstalled that same evening, Sunday,

January 2nd (Knudtzon R. 188; Hertzberg R. 62; engine

log Exhibit 19, p. 6). It was then tested for about two

hours (Hertzberg R. 62; engine log Exhibit 19, R. 96;

Knudtzon R. 188) and the ship actually sailed at 2:10 A. M.

on Monday, January 3rd (Knudtzon R. 188; Hertzberg

R. 62), having lost time from 4:30 P. M. on December 31st

to 2:10 A. M. on January 3rd, a period of 2 days, 9 hours

and 40 minutes. Only the shaft was renewed. So far as

appears, nothing else was done to the pump beyond re-

_ assembling it and reinstalling it.

Comment is also made on the fact that the shaft was

scrapped. Obviously it is the normal course of a shipyard

ee RETRRSTRNO RC ALE ENR

to scrap odds and ends of material left over from a job.

There was no idea of a lawsuit at the time, and it is cer-

tainly quite absurd to suggest that the ship’s employees

foresaw a lawsuit between the owner and the charterer,

which at that time nobody else foresaw, and that therefore

they scrapped the shaft in order to destroy incriminating

evidence.

Comment is also made on the fact that the shipyard

foreman was not called. The libelants’ proctors requested

information as to the names of the shipyard officials who

were familiar with the case. When those names were

received all of the men named were examined. There was

no suppression of evidence whatever.

See: Hoskyn v. Silver Line Limited, 63 F. Supp. 452

at p. 457 (S. D. N. Y., 1943), aff’d 143 F. 2d 462, cert. denied

323 U. S. 767.

The petition erects one man of straw after another and

finds conspiracies to suppress evidence without the slight-

est basis.

The foregoing discussion of the breakdown and repair

of the pump is designed to make the actual facts clear and

to show that every reasonable care which good practice

required was used to ensure the good condition of the ship,

including this particular pump. While petitioner argues

that the question is not one of negligence but of contract;

it is believed, nevertheless, important that due care was

exercised and that the delivery of the vessel was made in

good faith and without fraud or neglect.

The ship had three auxiliary motors and, as it turned

out, it would have been possible for her to proceed with

the others and to repair at destination. She was, however,

within easy reach of the shipyard where repairs had just

been made. That fact was one of the reasons for putting

back; another was that the engineers (Hertzberg R. 60)

“were afraid that the auxiliary motor No. 1 was very

much damaged on account of being overheated, and if

it should be proven that it was necessary to get new

parts, we could then order them there and get the re-

pair shop to assist us with the repairs as they had

newly repaired the motor.

~ Q. Did you know to what port your ship was going

to be ordered? A. No.

Q. Did you know what repair facilities you might

find at whatever ports you might go to? A. No, abso-

lutely unknown.”

It will be remembered that the ship’s orders were to

apply by wireless for orders five days before she reached

St. John. No one knew where she would be sent.

At page 68 of record:

“Q. Isn’t it a fact that after your No. 1 auxiliary

broke down, you could not go to sea? A. We could go.

Q. Why didn’t you go? A. Because we did not know

the repair shop facilities in the port that we were go-

ing to and here we had a port where they had repaired

it and where we could return.”

Captain Knudtzon said (R. 195-196) :

“When leaving Sandefjord, I had orders to proceed

to St. John, New Brunswick. When the shaft broke

down, I therefore did not consider it advisable to cross

the North Atlantic in mid-winter with a shaft repaired

provisionally on board and for this reason put back

to Siggrunn in order to have the repair made ashore.

If, on the other hand, I had known that we were only

to proceed to Falmouth, I would have acted otherwise.”

Mr. Ford (R. 337) considered that this decision was a

reasonable one. :

After the vessel left Siggrunn, she proceeded on her

voyage. The charterer suggested (but did not order) that

the northern passage be taken (Exhibit 22; R. 433-434).

The vessel was in ballast and the master, not knowing

where his ship was to be ordered, wanted her bunkers filled,

and the charterer’s London agent telegraphed him “if com-

ing south and require fuel proceed Falmouth” (Exhibit 22;

R. 434; Knudtzon, R. 189; Aaby, R. 141). The vessel ac-

cordingly did proceed to Falmouth, and the charterer paid

her inward expenses there (answers to interrogatories 12

and 13 annexed to libel (R. 18-19; Aaby, R. 141)). Both in

giving the Falmouth orders and in paying inward dis-

bursements, the respondent was acting as the charterer

of the vessel after knowledge of the alleged breach, and its

action in these respects was a ratification and reaffirmance

of the charter.

In Carver on Carriage by Sea, 8th Ed., p. 279, it is said:

“And if the charterer, knowing that a condition of

the contract is not satisfied, still allows the owner to

act upon the charterparty, e.g., by sending his ship to

the loading port, he cannot afterwards rely on the

breach of that condition as an excuse for not loading

her.”

No charter hire was ever paid by the respondent (Aaby,

R. 188).

While the extraneous facts discussed by appellant at

page 23 of its brief may possibly be relevant on the issue

of damages, the true situation as to the negotiations is

set forth by cable of January 8, 1938 sent to petitioner

by its London agent (Exhibit 22; R. 439-440) reading as

follows:

“TENTO STILL FALMOUTH TAKING 100 TONS BUNKERS

OWNERS ACCOUNT OWNER DESPATCHING HER TOWARDS

AZORES STKITTS WIRELESS INSTRUCTIONS EXPECT SAIL

SATURDAY

PEEM STOP MR. DOUG SELF VERY FULLY DISCUSSED ALSO

CARDIFF OUR STAFF AND IN MR. DOUGS WORDS WITHOUT

SLIGHTEST WISH INFLUENCE YOUR DECISION WE ALL HAVE

FEELING SHOULD TAKE SHIP STOP OWNER IS REASONABLE

ONLY DESIROUS OF SETTLING DISPUTE AMICABLY STOP

WILLING ARBITRATE WHETHER YOU PAY TWO DOLLARS OR

DOLLAR FIFTY ACCORDING WHETHER DELIVERY GOOD OR

BAD STOP IS THERE SERIOUS OBJECTION PAYING FULL HIRE

TEMPORARILY WHEN AGREED ADJUST LATER ACCORDING

ARBITRATION STOP IF YOU LOSE YOU TAKE HER SANDEFJORD

AT TWO DOLLARS WHY NOT IF YOU WIN DOLLAR FIFTY

THERE HENRY DUE PLYMOUTH 6 PEEM MONDAY CARDIFF

ABOUT NOON TUESDAY STOP REPLY QUICKLY OWNER

LEAVING PLEASE EITHER AGREE OR DEFINITELY ADVISE

oman IS NOW ENTIRELY OWNERS HANDS STOP MEANTIME

TRYING FIX BUT NOT CLOSE STOP GUIDANCE OWNERS

UST SPENT £4500 CLASSIFYING ARRANGING GET YOUR REPLY

ROM CABLE OFFICE TONIGHT”

arvennsitll

Petitioner refused to follow the advice of its experienced

London agents and returned the vessel to libelants-

respondents (see cable, R. 469).

After the charterer’s final refusal to proceed with the

performance of the charter, the vessel traded for the next

year for her owner’s account under various charters, which

were offered in evidence (Aaby R. 148-149; Kvernes R. 37).

During this time, she operated successfully and without

any serious delays (Kvernes R. 37-38; Hertzberg R. 63-64),

and her No. 1 auxiliary motor gave no trouble at all.

No one knows why the shaft broke (R. 477). Mr. Ford

(R. 336) thought the most likely cause was a lat nt defect,

in the metal, such as a slag inclusion. The Coens >

witnesses thought that the breakage was due to metal fa-

tigue. There was a slight suggestion that foreign matter

might in some way have got into the pump, but the evi-

dence quoted above shows that the pump was opened and

cleaned at the shipyard. The oil tank was also cleaned

(Hertzberg R. 61). Therefore, it is not clear how any for-

eign matter could have got into the pump, and examination

after the accident showed no evidence of any such foreign

matter (Hertzberg R. 61). Whether the trouble was due

to latent defect or to fatigue does not seem very impor-

tant. It was not discoverable by inspection up to the time

the vessel was delivered. This is definitely established by

the evidence already referred to.

The conjectures of the petitioner’s experts that there

must have been a visible crack two weeks before the shaft

broke do not seem to require much argument. Such a

suggestion is obviously highly speculative and is based on

no evidence whatever. Mr. Ford expressed a definitely

contrary opinion. He said (R. 417):

“T do not see that that follows at all. Fatigue, when

it begins in a shaft, is not visible, and laboratory ex-

periments have demonstrated that the first action that

occurs in this accumulative fatigue action is the sep-

aration of the metal crystals along their abutting faces

oceurring in the interior of the metal, and that may

RES SALE AN AE NPP ATP SE OPE ERY

s capi S

e i; PRAT ANTE NS AES:

proceed for some time before any crack appears at all.

So to say that a crack must be visible two weeks or

one week or two days before the break occurs, I do not

see that there is any basis for that.

Q. In your opinion might the crack, if there was one,

have developed after the ship sailed? A. Yes.”

Common experience certainly does not afford any sup-

port to the suggestion that there must have been a visible

crack two weeks before the shaft broke. On the contrary,

a weakness may equally begin in the interior before it

shows on the surface, and it certainly is not common experi-

ence that a crack is visible a substantial time before metal

fractures... The evidence referred to above absolutely neg-

atives the presence of a visible crac uless the witnesses

were committing perjury. The pa aaasts experts ad-

vance a theory and they seek to establish it by the simple

process of rejecting all facts and all evidence which do not

support it.

The case, therefore, comes down to this: Every reason-

able care was taken to ensure that the vessel was in proper

condition and she was accepted by che charterer’s agent

as satisfactory. The question of law is, therefore, whether,

if an ordinary minor breakdown occurs at any later time

after delivery, the charterer can repudiate the entire

contract.

POINT I

There is no such diversity of authority between the

circuits as would warrant the granting of a writ of

certiorari.

Petitioners have not cited a single decision however of

this Court or of a Cireuit Court of Appeals to the effect

that a charterer may repudiate a charterparty after de-

livery when performance of a charterparty is delayed for

such a small period of time as not to frustrate the purposes

of the charterparty.

| 19

This is not a case where the shipowner is attempting to

| avoid liability inasmuch as the charterparty clearly pro-

vides (Paragraph 15, supra) for reimbursement to the

| charterer for the time lost by any breakdown of machinery,

| together with costs of extra fuel and extra expenses. How-

ever, charterer should not be permitted to repudiate a

charterparty providing for performance during a period

of one year for a two and one-half days’ delay as the Court

of Appeals’ opinion stated:

«* * * it is clear that repudiation here was not justi-

fied: two and one-half days’ delay in the course of a

twelve months’ time charter can hardly be considered

so substantial as to frustrate the purpose of the char-

ter* * *” (R. 497-498).

A similar holding by this Court in Culliford v. Gomila, 128

U. S. 135 (1888) has not been modified in any way.

There an eighteen-day delay in loading a vessel for a

voyage from New Orleans to North Europe, was not suffi-

cient to frustrate the charterparty.

POINT Il

The breakdown clause in Article 15 of the Charter

provides exclusive remedy in cases of accident to

machinery.

The Court of Appeals stated (fol. 496) :

“In the midst of this confusion, however, one thing

rather clearly appears: that repudiation by a char-

terer is permissible only where the breach of the

owner’s undertaking of seaworthiness is so substantial

as to defeat or frustrate the commercial purpose of the

charter. * * *”

Since the time charterer has no property right in the ship

but has only a contract with the owner (Robins Dry Dock

& Repair Co. v. Flint, 275 U. S. 303) it is obviously appro-

ELENA CITT ROTO AP I BOP RA ESE IROL ILE BIAS ELON ENE, TEM ELLOS

priate that the charterer’s damages in the event of loss of

use of the vessel by accident should be measured by charter

hire as the contract provides. In some cases the damages

will be lesser than the charter hire and in others greater.

The provisions of Clause 15 are exclusive with respect

to all cases where the use of the vessel is lost. The parties

have in this clause enumerated a category of casualties

not unlikely to oceur in the operation of the vessel and

have themselves provided what the effect of these casual-

ties shall be upon their respective rights. For loss of time

due to breakdown, they have provided that hire shall cease.

This is fair to both parties for, when the charter is made,

it cannot be foretold whether such a provision will be for

the advantage of the owner or of the charterer.

The decisions are clear the breakdown clause affords

the exclusive remedy. In Clyde Commercial SS. Co. v.

West India SS. Co., 169 Fed. 275, the Cireuit Court of Ap-

peals for the Second Cireuit said (p. 278):

“This leads us to the conclusion that Article 15 (the

off-hire clause) must be understood to state absolute

categories in which the parties intended the hire to be

suspended, whether the owner was at fault or not rte

In the Ask, 156 Fed. 678, a time charterer sued for dam-

ages to bananas which spoiled owing to the vessel’s delay

in arriving to load them, in consequence of defective fur-

naces. It was held that the owner’s liability was limited

to loss of time under the off-hire clause. Judge Hough

said:

“For such contingencies, the charter-party provides

a stipulated measure of damage—i.e., loss of charter-

hire—and no other measure is permissible unless a

covenant could be found in the contract obliging the

vessel to transport the last cargo of the season from

Nipe Bay and no other. It is too plain for argument

that no such contract was made.”

Pies see

In Aktieselskabet Stavangeren v. Hubbard-Zemurray

SS. Co., 250 Fed. 67 (C. C. A. 5), a time chartered vessel

had just loaded a cargo when, by reason of her engineer’s

negligence, her stern post was broken. The necessary re-

pairs delayed the ship. The time charterer, who was also

the owner of the cargo, sued for damages to the cargo

caused by the delay, and also deducted hire. There was an

off-hire clause, similar to that in the present charter. The

Court held that the charterer was entitled only to a deduc-

tion from hire, saying (p. 69):

“Clause 3 deals specifically with that subject”

(owner’s liability to the charterer for vessel’s loss of

time). “It seems that that clause so provided for the

ease of loss of time from damage, including such as is

attributable to negligence of the owner’s engineer, pre-

venting the working of the vessel for more than 2+

hours at sea, as to make the cessation of hire, until the

vessel is again in efficient state to resume her service,

the agreed compensation the charterer was to be en-

titled to for a loss of time so occasioned, and that the

appellee (charterer), having received the benefit of a

compliance with that provision, was not entitled to

anything more because of loss of time so caused.”

In The Bjornefjord, 271 Fed. 682 (C. C. A. 2), the same

accident was involved as that passed on by the Supreme

Court in Robins Dry Dock & Repair Co. v. Flint, supra.

The propeller was cracked and, while replacing it, the ship-

yard’s employees negligently dropped it and did damage

which caused substantial further delay. The time char-

terer sued the shipowner. The owner set up, among other

defenses, the provisions of the off-hire clause. The Court

held that the charterer’s sole remedy was the deduction of

hire and that it was not entitled to recover the estimated

value of the steamer’s use during the period of detention.

The Court said (p. 683):

“Judge Learned Hand dismissed the libel on the

ground that the delay was caused either by a ‘break-

RCE RE PRI eT SPHERE SILO, SOME LEM RIDES I ELE REBEL AID EOE REN

down of machinery’, within article 16, or by ‘an acci-

dent of machinery,’ within article 17, which article in

either case completely defined the charter’s remedy,

viz., to be relieved from payment of hire ‘until the’

steamer was again in an efficient state to resume her

service.” (Italics ours.)

So in the Toledo, 30 Fed. Supp. 93, 1939 A. M. C. 1300,

where a crankshaft web broke from latent defect within a

few days after delivery, the District Court held that the

charterer “could not recover anything in addition to the

adjustment of hire and bunkers” and spoke of the break-

down clause as “the stipulated and exclusive measure of

damage”. The Circuit Court of Appeals for the Second

Circuit affirmed (122 F. (2d) 255, 1941 A. M. C. 1219).

In the Essex Envoy, 35 Com. Cas. 61, the Court held

that the breakdown clause applies even to a case where the

accident occurred before delivery and where the repairs

were made after delivery. The Court said (p. 65):

“Mr. Stenham says thet it must be damage that oc-

curs after the vessel goes on hire. The clause does not

say so and one can well imagine many cases where

damage which had occurred before the vessel comes on

hire may not be discovered or may not be repaired

until after the vessel comes on hire and, if so, the par-

ties by the terms of the clause seem to me to have pro-

vided for such a matter. As a matter of business, I

should think that this happens quite constantly and the

words are simple enough to cover such a case and |

do not see any reason why I should confine it to dam-

age previously received.”

In this case, the damage had been done by a collision

before delivery and, obviously, therefore, the ship was not

seaworthy at delivery.

POINT Ill

Petitioner’s contention ignores Clause 16 of the

charterparty which contains a mutual exception of “all

dangers and accidents of the seas, rivers, machinery,

boilers and steam navigation”’.

That the fracture of the shaft was an accident to ma-

chinery is obvious (the Miranda, L. R. 3 A. & E. 561; ef.

Mercantile SS. Co. v. Tyser, 7 Q. B. D. 73). The clause

provides that such an accident is “always” pee

“throughout this charterparty.”

The charterparty is a document. The clause specifically

provides that, throughout the provisions of that docu-

ment, accidents to machinery are excepted. Every pro-

vision of the charter is subject to this exception, including

the provision that the ship shall be tight, staunch, strong,

ete.

In Clyde Commercial SS. Co. v. West India SS. Co.,

169 Fed. 275, the Circuit Court of Appeals (p. 277) con-

strued a similar provision to relieve each party from lia-

bility to the other in case performance were prevented by

an excepted clause.

In the G. R. Crowe, 294 Fed. 506 (affirming 287 Fed.

426), the Cireuit Court of Appeals for this circuit stated

that Article 16 of the ~harter there in question (which

provided that “the steamer is not accountable for leak-

age”) was a “modification of or an exception to the war-

ranty of seaworthiness,” and that the ship was not liable,

even though, as the Court found, the damage was due to

the fact that she was not seaworthy. See, too, the Fri, 154

Fed. 333. The G. R. Crowe was approved by the Circuit

Court of Appeals (2nd Cireuit) in Societa Anonima, etc.

vy. Federal Ins. Co., 62 F. (2d) 769, at 771, 772.

The exception applies at any stage of the performance

of the charter. In Carver on Carriage by Sea, 8th Ed.,

See. 148, it is said: |

“When and where such perils are to be ‘always ex-

cepted,’ the shipowner seems to be relieved from lia-

ERMA ESR NTS REI HE PARIS SENET NE ICRU OE SOD VAY PETA NY,

bility for any failure to perform his contract, if caused

_ by those perils whenever they may have occurred.”

Obviously, since the exceptions apply “always” through-

out this “charterparty,” they apply to all parts of the

charter (Barker v. McAndrew, 18 C. B. [N. 8.] 759), in-

cluding the agreement that the ship shall be seaworthy;

and, since the contract here was one of private carriage,

not of common carriage, there is no ground upon which

such a provision could be held invalid. See Ward, J., in

the G. R. Crowe, 287 Fed. 426 at 427; Blackburn v. Liver-

pool, etc., Nav. Co., 1902, 1 K. B. 290; Standard Oil Co. v.

U. S., 264 Fed. 66 (C. C. A. 4).

The charter does not impose on the owner liability for

such accidents (beyond loss of hire during the delay),

though, of course, the owner must repair the damages, in

accordance with the maintenance clause, which is inserted

“merely for the purpose of laying upon the owners the

burden and the expense of maintaining the vessel dur-

ing the period of hire in a thoroughly efficient state,

including, of course, expense of all necessary and

proper repairs” (Giertsen Vv. Turnbull, 1908 Sess. Cas.

1101).

This was approved and quoted by the English Court of

Appeal in Tynedale Shipping Co. v. Anglo-Soviet Ship-

ping Co., 41 Com. Cas. 206. The Court there pointed out

further that the maintenance clause does not

“eonstitute an absolute engagement or warranty that

the shipowners will succeed in so maintaining her what-

ever perils or causes may intervene to cause her to

be inefficient for the purpose of her services. On the

contrary, there is a very wide exception clause peda

The engagement of the shipowners is this, that if

accident happen, or events arise to cause the ship to

be inefficient * * * they will take all reasonable and

proper steps that reasonable men could to put them

right again.”

Mest nee “9 SPR LP SER RIOT LT a

POINT IV

Petitioner could not cancel after delivery.

The Tento was in fact delivered to petitioner and or-

dered to proceed to St. John, N.B. (R. 491, 278). Peti-

tioner’s brief cites no authorities to the contrary to the

Cireuit Court’s finding (R. 498): “* * * the delay occurred

after delivery and acceptance of the vessel and not before.”

Of course, as the Court stated, a breakdown occurring a

month later would not have justified cancellation and it

appears to be of little importance that the breakdown

occurred only an hour after delivery. In this respect, as

stated by the Cireuit Court of Appeals for the Second

Cireuit: ae ae

The cancelling clause, on which the weepsaaicae! relies,

provides that, if the vessel is not ready

“on or before December 31st, 1937, but not later than

4 P. M., charterers or their agents to have the option

of cancelling this charter at any time not later than

the day of vessel’s readiness.”

This right of cancellation was limited in time, and that

limitation had expired when this accident occurred and

the right of cancellation had expired with it. This clause

likewise shows that the scheme of the charter is that the

option to cancel the charter does not persist beyond the

time of delivery and that the rights of the parties there-

after are governed by the other terms of the charterparty.

In Jones v. Barnes-Ames Company, 244 Fed. 116, a char-

terer refused to accept the vessel because of a smell of

paint in the holds. The charter provided that the char-

terer might cancel if the vessel were not ready to receive

cargo on or before April 20th, but also provided :

“This option to cancel shall be exercised not later

than the presentation of said surveyor’s pass of readi-

ness.”

‘

NELLA LEN ELE ILO BERE LEE EB OS PLA LO LONI LION, PRN Ta SORES ARE OS Oe Ee SOAS

—

The charterer attempted to cancel on the following day.

The Court said (p. 121):

“The option to cancel was made a matter of contract

and it could be exercised only by strict compliance with

the terms on which it was given. Time was of the

essence of the agreement. Inasmuch as the respondent

did not exercise its option to cancel within the time

allowed it by the terms of the charterparty, it was

not allowable for it to exercise it thereafter; for once

a charterer lets the cancelling date mentioned in the

charter go by, he waives the right which the charter

gives him to cancel and abandons his right to cancel

it if the vessel is not ready to load by the day specified.

Readiness to load includes fitness to receive cargo.

And, as the notice of cancellation was given after the

time for giving it had expired, it was without effect.”

Charterparties are prepared by practical men to serve

practical purposes. It would obviously be most incon-

venient, because leading to the greatest uncertainty, if the

cancelling clause should surv’ve the acceptance of the

vessel by the charterer. It is for that reason that this

well-known form of charterparty (Time Charter approved

by the New York Produce Exchange) provided that the

option of cancellation must be exercised “not later than the

day of vessel’s readiness.” This is a familiar provision

in charterparties, as shown by the decision in Jones Vv.

Barnes-Ames Co., supra. Business reasons require a

prompt decision, if the charter is not to be binding, and

the charterer’s right of rejection under the cancelling clause

is consequently limited in time. Of course, if the vessel sus-

tains, or has sustained, such serious damage as to result

in a frustration (which was clearly not the case in the

present instance, 1439), other principles may apply, as

indicated infra, pp. 27-29.

POINT V

A charterparty may be repudiated after a vessel has

been delivered only when breach thereof is such as to

frustrate its purposes.

Engiish and American authorities are in agreement that

once a vessel has been delivered a charterparty may be

repudiated only in the event conditions are discovered such

as would frustrate the purposes.

In Serutton on Charterparties, 14th Edition, p. 99, it is

said:

“Such breaches of these undertakings as defeat the

commercial purpose of the voyage will justify the hirer

of the ship or the owner of the goods carried in repudi-

ating the contract to carry. Such breaches as do not

defeat the commercial purpose of the voyage will give

rise to an action for damages.”

This follows the general principle stated by Lord Ellen-

borough in Davidson v. Gwynne, 12 East 381, 389, as

follows:

“The principle laid down in Boone v. Eyre has been

recognized in all the subsequent cases, that unless the

non-performance alleged in the breach of contract goes

to the whole root and consideration of it, the covenant

broken is not to be considered as a condition precedent

but as a distinct covenant for the breach of which the

party injured may be compensated in damages.”

The same principle was stated by the Circuit Court of

Appeals for the Fourth Circuit in Ainesworth Coal & Iron

Co. v. Grangesberg Oxelosund, 287 Fed. 291, at 295:

“The learned judge of the lower court aptly stated

the law applicable to this condition, as laid down by

Lord Mansfield, as follows:

ee SALINE SEP ECA LIS OGLE ES EI NGOS al SIE CIE REL ODEN EGE LIE EINE IU Tiere

‘Where mutual covenants go to the whole of the

consideration on both sides they are mutual conditions,

the one precedent to the other; but when they go only

to a part where a breach may be paid for in damages,

there the defendant has a remedy on his covenant and

shall not plead it as a condition precedent.’ Boone

yv. Eyre, 1 H. BI. 273.”

A similar principle was laid down in MacAndrew Vv.

Chapple, L. R. 1, C. P. 648, at 648, per Willes, J., as

follows:

“ * * * ond it is also settled, at any rate in this court,

that a delay or deviation which, as it has been said,

goes to the root of the whole matter, deprives the char-

terer of the whole benefit of the contract, or entirely

frustrates the object of the charterer in chartering the

ship, is an answer to an action for not loading the

eargo; but that loss, delay or deviation short of that

gives an action for damages, but does not defeat the

charter.”

Thus, where it is found that the breach does not frus-

trate the purpose of the charter, it is held that the char-

terer must load, without prejudice, of course, to his right

to recover any damage which he sustained by the owner’s

breach (Tarrabochia v. Hickie, 1 H. & N. 183).

The same rule was stated in Hildebrand v. Geneva Mill

Company, 32 F. (2d) 343, at 348, as follows: !

“In order to justify the rescission of a charterparty,

the character of the breach must be such as to defeat

the purpose of the contract; otherwise recovery is con-

fined to damages sustained.”

A similar principle in the case of sale by installment

was stated in the case of Helgar Corporation v. Warners

Features, 222 N. Y. 449, as follows:

“General statements abound that at law time is al-

ways of the essence (citing authorities). For some

purposes this is still true. The vendor who fails to

PLM LITLE ALL AT IIE I. SBT PLL TNL SN OM RAE ELT Te SERS —

receive payment of an installment the very day that

it is due may sue at once for the price. But it does

not follow that he may be equally precipitate in his

election to declare the contract at an end (citing au-

thorities). That depends upon the question whether

the default is so substantial and important as in truth

and in fairness to defeat the essential purpose of the

parties.”

A mistake as to a minor matter, compensation for which

is provided for by the terms of the contract itself, does

not authorize a rescission.

Knutson v. Metallic Slab Form Co., 128 F. (2d) 408,

411 (C. C. A. 5).

Arrow Petroleum Co. v. Johnston, 162 F. (2d) 269-

S76 (C. (As 7).

If, however, the owner’s breach is such as to frustrate

the purposes of the contract, the charterer may refuse per-

formance (Stanton v. Richardson, L. R. 7 C. P. 421, af-

firmed L. R. 9 C. P. 390). There it was held that, since a

vessel could not be made fit for the proposed cargo within

such a time as would not have frustrated the object of his

venture, the charterer was justified in not loading. An-

other example is Snia Societa, etc. v. Suzuki € Co., 29 Com.

Cas. 284, where, after several weeks under the charter, it

proved that the propeller blades were not strong enough

and that they could not be made efficient within a reason-

able time. The charterer was held entitled to refuse to

go on.

On general principles of law, therefore, minor breaches

on the part of the owner give rise only to a claim for dam-

ages and do not warrant repudiation. Under the charter-

party in suit, the parties agreed by clause 15 that minor

breaches not amounting to frustration should be dealt with

by putting the vessel off hire.

Ripa ses nae GOAN Vn RETOOL Pal 0 Raa

POINT VI

Petitioner’s authorities support a claim for damages,

not repudiation.

In general petitioner ignores the business history of the

dispute and skips over instructions given to its Norwegian

agents to cancel the charterparty prior to delivery. Their

obvious interest in escaping from the obligations of the

charterparty is shown by the wording of their cable, “If

misses cancelling date and hour would prefer release vessel

and would consider ourselves fortunate” (R. 440), as well

as advices of their experienced London correspondents to

the effect that they “all have feeling should take ship” (R.

439). Specifie instances of petitioner’s incorrect state-

ments and contentions are enumerated below:

(1) At page 2 of the petition petitioner attempts to

magnify the extent of the casualty and states that shortly

after the Tento had been delivered and accepted by the

charterer, “the shaft of the lubricating oil pump broke”,

and, on page 6, refers to a “defective shaft” which “de-

mobilized the vessel for two and one-half days while repairs

were being made on shore.” Neither the petition nor the

brief point out, as they should have done, that this small

shaft, about 10 inches long and 11% inches in diameter,

was only that of the lubricating oil pump of No. 1 auxiliary

motor (R. 470). The two main engines (diesels) were not

affected and the ship had two other auxiliary engines, three

in all. Only one auxiliary needed to be in operation while

the ship was at sea and the engines were stopped and the

ship later returned to a Norwegian repair yard merely

because of the fact that the auxiliary could be more easily

replaced in Norwegian yards than elsewhere (R. 60). The

ship could have proceeded on her voyage making use of

another auxiliary (R. 60).

pe yA, SN AER TT ARTE AURIS MO ANE HR ATU ATER ARE EAIELAEE SINT SSR STURN PENTEL —

_—

(2) At pages 3 and 10 of the petition, and on page 17

of the petitioner’s brief it is claimed that the master should

have required a trial trip at sea before tendering the vessel.

This overlooks the fact that there was no such require-

ment in the charter, that Lloyd’s surveyor had certified

the vessel as in good condition (R. 473), that petitioner’s

surveyor had certified that “there are no defects inside or

outside”( R. 475), and that there was a dock trial of the

ship’s machinery, including auxiliary No. 1, which was

tested for a three-hour period under a load double the

ordinary load at sea, without any trouble developing (R.

56, f. 168). Also, auxiliary No. 1 was started at 11 A. M.

on December 31st (R. 57) and the Tento then proceeded

to the outermost point of Sandefjord Harbor for the pur-

pose of making delivery, still without any difficulty.

Page 9 of the petition reads:

“This ruling” (the decision below) “is a direct invi-

tation to any unscrupulous shipowner to palm off an

unseaworthy ship on an innocent charterer.”

The above argument is not based on any of the findings

in the case at bar. There is a complete absence of any

findings of lack of due care or of any impropriety of any

kind on the part of the respondents.

(3) Petitioner (Petitioner’s Brief, p. 11) states:

“No notice of actual readiness ever was given.”

The above is most misleading.

Respondents notified petitioner in writing that the vessel

would be ready for delivery on December 31st (R. 474),

and petitioner instructed its representative “to take de-

livery on time charter” at “outermost point Sandefjord

Harbor” (R. 474).

After survey of the Tento by a surveyor appointed by

the charterers, who stated that there were “no defects

inside or outside” (R. 475, 432), the charterers’ representa-

—

tive signed a “Certificate of Delivery” to certify that the

Tento “was delivered on time charter” at Sandefjord on

December 31st (R. 278, 475).

Petitioner then gave the master written orders to pro-

ceed towards St. John (R. 475) and the ship sailed.

On January 3rd, after the delay had occurred, petitioner

instructed the master either to

“make Northern passage or, if going South and require

fuel, proceed Falmouth, which latter the master did”

(R. 476, 477, 434). ae

This clearly recognized the charterparty as in effect. As

stated by the District Court (R. 478):

“the vessel was delivered to and accepted by the re-

spondent” (now petitioner) “prior to the cancelling

date and thereupon started performance of the char-

ter. The vessel was thus brought under the charter.

* * #99

The formalities in giving notice of readiness could, of

course, be waived by the charterers, and waiver in this

ease took place as shown by the findings of the Courts

below.

The Driebergen, 60 F. (2d) 367, C. C. A. 5.

See, too:

Bentsen v. Taylor, 1893, 2 Q. B. 274.

(4) At pages 11 and 12 petitioner claims that the Court

of Appeals held that the owner “does not have to fulfill

its absolute warranty,” and that this is a “brand new legal

doctrine.” Neither the Court of Appeals nor the District

Court made such holding as is asserted by petitioner. The

--decision was that, if there was “an insubstantial breach”

of charter (R. 495), the charterer was not entitled to

repudiate the entire charter but would be left to assert

his claim for damages, if any, against the owner. In so

deciding the Courts below are supported by all of the

authorities.

In Serutton on Charterparties, 15th Edition, Article 28,

speaking of the owner’s undertaking that his ship is sea-

worthy, the text reads (p. 92):

“Such breaches of these undertakings as defeat the

commercial purpose of the voyage will justify the char-

terer of the ship or the owner of the goods carried

in repudiating the contract to carry. Such breaches

as do not defeat the commercial purpose of the voyage

will give rise to an action for damages.”

The text cites Clipsham v. Vertue, 5 Q. B. 265; Tar-

rabochia v. Hickie, 1 H. & N. 183 (see infra, p. 35), and

MacAndrew v. Chapple, L. R. 1 C. P. 643.

Petitioner states (Brief, p. 34) that American decisions

should conform to well-settled English law. It was there-

fore proper for the District Court and the Court of Appeals

to follow the above well-settled English rule.

(5) Petitioner also states that the opinion of the Court

of Appeals is confusing and that the affirmance was on a

different ground from that relied on by the District Court.

An examination of the opinion of the Court of Appeals

shows that the facts are first stated together with comment

on the opinion below (R. 490-492).

At pages 493 and 494 the Court of Appeals discusses

the meaning of the word “warianty” as used in various

decisions.

The Court of Appeals next stated (p. 495):

“One thing rather clearly appears: that repudiation

by a charterer is permissible only where the breach

of the owner’s undertaking of seaworthiness is so sub-

stantial as to defeat or frustrate the commercial pur-

pose of the charter.”

Many authorities are cited in support of the above, and,

as the breach was plainly “insubstantial,” the decision

below was affirmed.

as SESE 8 IG OT ESI ERR SLPS PEEL IL IIIS I SAO OBESE TIDE OY SO

Judge Coxe, in the District Court, expressed the same

view as did the Court of Appeals (R. 480), and further —

held that, in view of the specific language. of the charter,

the petitioner’s remedy was provided for by Clause 15

(R. 479). It was unnecessary for the Court of Appeals to

express any view as to this second ground of decision

(see R. 491).

(6) Discussion of some cases cited by petitioner.

In Davison v. Von Lingen, 113 U. S. 40 (1884), cited

by petitioner, pages 7, 9, 26, 29, a charterparty of a steamer

had been signed on August Ist for the carriage of a cargo

of grain from Philadelphia or Baltimore to a safe port

in the United Kingdom or Continent as ordered. The

charterparty stated that the steamer either had “now

sailed” or was “about to sail from Benizaf with cargo.”

In actual fact the steamer, on August Ist, was at Benizaf,

only three-elevenths loaded, and did not sail until late on

August 7th.

Prior to signing of the charter, a discussion had taken

place between the representatives of the shipowner and

the charterer, in which it was made clear to the shipowner

that prompt arrival was essential, as it was necessary to

load the cargo in August, which would, of course, not be

possible if the ship did not sail from Benizaf until August

7th (113 U. S. p. 46). Owner’s representatives sought to

have the charter read:

“Sailed from, or loading at Benizaf,”

but the charterers refused to agree.

The steamer could not be tendered to charterers until

September 11th (113 U. S. p. 47), about two weeks later

than her expected date, and the charterers refused to

accept her on the ground that, when the charter was signed,

she had neither sailed nor was about to sail from Benizaf.

The Court held that the charterparty implied that the

vessel had already been loaded on August Ist (113 U. S.

w—

p. 49), and that, in view of the prior negotiations and the

- situation of the parties, the case fell within a class of

| cases where the breach of a warranty was not “insubstan-

tial,” and that it was

“not within the class illustrated by Tarrabochia v.

Hickie, 1 H. & N. 183; Dimech v. Corlett, 12 Moore

P. C. 199, and Clipsham v. Vertue, 5 Q. B. 265” (113

U.S. p. 50).

In Tarrabochia v. Hickie (1856), supra, evidently ap-

proved by the Court, a charterparty was entered into which

provided that the ship, then at Fiume, being “tight, staunch

and strong and in every way fitted for the voyage,” should

| proceed to Cardiff and there load for Mediterranean ports.

At the trial it appeared that the vessel was delayed in

| arriving at the loading port by reason of her unseaworthi-

| ness, and the charterer therefore refused to load her. The

jury found that the vessel was not “tight, staunch and

| strong,” but that the object of the voyage was not frus-

trated. The Court held that the shipowner was entitled

to recover. Pollack, C. B., said, p. 186:

“The first plea alleges that the vessel was not tight,

staunch, or strong, and that by ‘reason thereof the

object of the charterparty and of the voyage was wholly

frustrated.’ The latter is a material allegation, and

the jury have found it in the negative. The question

then is, whether the fact of the vessel not being tight,

staunch or strong, is a condition precedent to the per-

formance by the defendant of his contract. I think

not.”

Bramwell, B., and Martin, B., concurred.

Davison v. Von Lingen, supra, is entirely different from

the case at bar in many substantial respects:

1. The charter was for the carriage of only one cargo

from U. S. Atlantic to Northern Europe, not more than

one month’s employment. A time charterparty for “12

calendar months,” which does not contemplate the car-

riage of any specific cargo, obviously differs essentially

from a single trip charter for the carriage of grain.

2. The fact that the ship must be loaded and ready to

sail on August Ist was emphasized in the discussions which

took place when the charter was signed. ~

3. The delay much exceeded that involved in the case

at bar.

In New York & Cuba Mail Co. v. Eriksen, 27 Comm.

Cas. 330 (1922), cited by petitioner, pages 10, 32, 34, a

steamer had been chartered to load grain and oil-cake at

Buenos Aires. She reached her loading place on November

25, 1920, and the master gave notice of readiness to load

at 4 P. M.

At that time there were twenty-four boiler tubes in each

of the steamer’s boilers, which required renewing and this

work could not be completed for at least ten days. Until

this work had been completed and the boilers tested a

certificate of seaworthiness could not be obtained.

The charterers refused to load the ship under the charter-

party and gave notice of cancellation immediately the ship

was tendered pursuant to the cancelling clause, which

stated that, if the vessel should not be ready to load by

6 P. M. on November 25, 1920, charterers had the option

of cancellation.

The Court held that the charterer was entitled to give

notice of cancellation under the cancelling clause in view

of the serious condition of disrepair existing at 4 P. M. on

November 25th, when the notice of readiness was given.

The Court also pointed out that the repairs on the boilers

actually took about fifteen days (27 Comm. Cas. 337).

The above case is obviously entirely different from the

case at bar because there the charterer gave seasonable

notice of cancellation, as provided for in the cancellation

clause, the ship being at the time of the notice plainly and

seriously unseaworthy. The ship was never accepted and

POA FEM,

SSR AHOED BATION LORIE IOI ee

omen

ordered to proceed as in the case at bar; also, the period

of delay was much longer and the charter voyage was for

the carriage of a single cargo from the Argentine to Eu-

rope, and was not of twelve months’ duration as in the

case at bar.

In Ronalds v. Leiter, 109 Fed. 905 (1901), cited by peti-

tioner, page 31, a yacht had been chartered for two months

from November 9, 1896, for $3,000 paid in advance, under

an informal form of charter. On December 20th, while en

route to Tampico, the starboard propeller broke off close

to the hull and the starboard propeller fell into the sea,

knocking a hole in the hull and causing a serious leak.

The yacht reached Tampico using her port engine and

propeller. At Tampico the hull was temporarily repaired

and, on January 7th, the yacht left Tampico in tow, reach-

ing Galveston on January 10th. On the next day the char-

terer left the yacht, the two months’ period of the charter

having then expired.

After arrival at Galveston, permanent repairs were

undertaken and the yacht then proceeded to New York, at

which port she was to be redelivered on termination of

the charter, reaching New York on February 27th.

The jury found that the yacht was initially unseaworthy ;

nevertheless the charterer was charged for the use of the

vessel at charter rates until her delivery to the owner in

New York, less an allowance for towage from Galveston

to New York.

Ronalds v. Leiter, supra, differs entirely from the case

at bar in that the serious breakdown of the vacht under

a two-months’ charter for a pleasure cruise was not

remedied for a period of about thirty-nine days. The

charterer lost the contemplated use of the yacht from

December 20th, and her return to New York was only for

the owner’s convenience and benefit and in accordance with

his demand. Even under those circumstances the char-

terer was held liable for charter-hire up to the date of the

vacht’s arrival at New York on February 27, 1897.

Discussion of other cases cited by petitioner would be

inappropriate.

a SG LEM REE BIT ROSIN DAT RII ORLA ET” SPRINT UI REN OT AO Ra

Fs TRY He SORT et " pra ey : ? 3 i *

LAST POINT

The petition for a writ of certiorari should be

denied.

Dated, New York, August 28, 1950.

Respectfully submitted,

KENNETH GARDNER,

James McKown, Jr.,

Counsel for Respondent,

80 Broad Street,

New York 4, N. Y.

James M. Estasrook,

of Counsel.

were PEP IOC TE TO ATEN OEE ITT TT

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.