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May 23, 1932


The opinion of the court was delivered by: INCH

INCH, District Judge.

Libelant claims that it has been damaged by the negligent stowage of a cargo of its potatoes, also by the deviation of the steamship Terne, chartered by libelant from the respondent for the purpose of transporting these potatoes from Georgetown, Prince Edward Island, to Cuba, the steamship being owned by the claimant, Bergen Lloyd, and finally by a failure to deliver said potatoes at Cuba before the market price for such merchandise had declined.

Libelant has sued the respondent in personam and the steamship Terne in rem.

 The obligations resting on respondent and the ship differed. The Elizabeth Edwards (C.C.A.) 27 F.2d 747; Oxford Paper Co. v. The Nidarholm, 282 U.S. 681-685, 51 S. Ct. 266, 75 L. Ed. 614; Knohr, etc., v. Pacific, etc., Co. (D.C.) 181 F. 856; The Freeman v. Buckingham, 59 U.S. (18 How.) 182, 15 L. Ed. 341; The Capitaine Faure (C.C.A.) 10 F.2d 950.

 However, the issues raised by the answers to the amended libel can be disposed of in a single opinion.

 It would also seem to me that on this record according, of course, as to what facts were found, the libel could be dismissed as against the ship, yet a decree directed against respondent. Thomas P. Beal (C.C.A.) 11 F.2d 49.

 A large amount of testimony has been taken, both by way of deposition and the production of witnesses at the trial. Briefs submitted by counsel for each of the parties have been both exhaustive and exceedingly helpful in considering all this testimony. The important issues are largely those of fact, and many of these facts are not in real dispute.

 These material facts I find to be as follows, and for convenience I shall refer to the libelant as Dyal, the respondent as Munson, and the claimant as the Terne:

 The claim of Dyal that the Terne was unseaworthy because of the absence of an ice pilot was withdrawn in open court.

 The Terne is a small cargo steamer, built for the Baltic trade, with her hull specially strengthened at the bow to enable her to navigate against the ice. She had two holds. The forward hold was 90 feet long, the aft hold 82 feet. Each of these holds had two hatches Nos. 1, 2, 3, and 4 commencing at the bow. Her boilers and engines were amidships.

 So far as I can see, and I so find, she was entirely seaworthy as to equipment and ability to carry these potatoes from Georgetown to Cuba. Her captain was long experienced in this sort of work in the ice, and I can find no criticism of her crew.

 Munson had chartered the Terne from claimant by the ordinary government form "Produce Exchange" time charter. This contained the usual Harter Act clause and exceptions (46 USCA §§ 190-195).

 Dyal was in the potato business, buying from or through the Potato Growers' Association. It was engaged in buying and selling large quantities of potatoes.

 On January 7, 1929, Dyal negotiated a subcharter of this ship Terne from Munson. This subcharter chartered the whole of the ship, and contained the usual clauses as to her seaworthiness, and therein Dyal agreed to furnish a minimum cargo of 10,000 bags of potatoes of 180 pounds each, or the equivalent thereof, which would be 20,000 bags of 90 pounds each, and to have the option of increasing this quantity. The bags placed on board at Georgetown the port of loading were 90 pound bags. So far as I can see, there is no claim made that the rate charged was high or unusual. There were no special clauses in the contract as to any exceptional care to be taken of the potatoes. The compensation of Munson was for a lump sum prepaid freight.

 The Terne could accommodate 35,000 90-pound bags. This subcharter, therefore, was the ordinary "Munson Voyage" form of charter, and provided bills of landing on the ordinary "Munson Line" form.

 All these documents contained the usual Harter Act clause and exceptions.

 Dyal had shipped about a dozen of such shiploads by other ships from this same vicinity during the months previous, and had started its negotiations for this particular subcharter several weeks prior to January 7, 1929.

 January 7 was an exceedingly late date for such work, as the waters around Georgetown and vicinity were then quite of often frozen, and navigation interrupted in part or for a considerable period, by reason of blizzards, northwest gales, etc.

 The Canadian government icebreaker Stanley was in constant use.

 All of these conditions were well known not only to Munson but to Dyal.

 However, Dyal was so anxious to get this shipload of potatoes from Georgetown to Cuba that it had subchartered the Terne, and Munson had agreed thereto.

 The day before this subcharter was signed, the Terne was carrying a load of coal at Corner Brook, Newfoundland. While she was discharging there, that harbor froze, but she made her way out without trouble, under her own power, and reached Georgetown about noon, January 9, 1929, ready to load the potatoes.

 The Terne, in coming from Corner Brook, Newfoundland, to Georgetown, had come across Cabot Strait and along the western shore of Cape Breton Island. This was the reverse of the course, which, 12 days later, she tried to take bearing the potatoes of Dyal. During this trip her experienced captain had opportunity to and did observe conditions, and he saw that certain lighthouses along that course had been extinguished for the winter, but that the light at the point of Prince Edward Island was burning.

 The subcharter between Dyal and Munson also provided, among other things, that it was subject to "ice conditions" permitting the steamer to load (part of clause 4), and that "lay days, if required, were not to commence before January 14, 1929." The privilege was given to Dyal to cancel should the Terne not be at the loading port ready for cargo January 15, 1929 (clause 13).

 As we have stated, the Terne was at the loading port on January 9.

 I do not consider that it is important on the facts here whether other vessels were loaded prior to the Terne, for there is no proof that there was any damage to the potatoes done at Georgetown, and Dyal's potatoes had not all arrived at that time.

 The proof is that such potatoes received their damage on the voyage from Georgetown.

 The day following the arrival of the Terne, January 10, as well as those of January 14, 15, 16, and 17, were too cold for safe loading of potatoes. Dyal's potatoes were not all ready and present at Georgetown even during those days. However, the 11th, 12th, and 13th of January had been safe for loading potatoes, and two other ships were loaded with such cargo, but the Terne could not have departed on any of these days, for the reason that Dyal did not have the cargo present.

 On January 10, 1929, Dyal, by its representative Thompson, sent a letter to the Potato Growers' Association apparently for the agents of Munson at Georgetown in regard to some 14,000 bags of potatoes for the Terne, in which letter it is stated that the holds (Terne) should be preheated and sufficient dunnage be placed around the sides of the holds to keep the potatoes away from the steel structure; that this would be an added protection should the cold penetrate through the holds.

 Weather conditions moderated somewhat during the afternoon of January 15, for sailing purposes at least, and early on the morning of January 16 these two vessels that have been mentioned left with their cargo of potatoes. During that day they passed successfully through the Gut of Canso, into the Atlantic Ocean, and naturally the master of the Terne, lying at the pier awaiting Dyal's cargo, had been anxious about the delay, and had sent a telegram to Munson indicating his idea that he should get away as soon as possible.

 Munson notified Dyal of this, yet Dyal urged Munson to hold the Terne. Munson complied.

 In addition, the master of one of these vessels, that had sailed successfully on the 16th, after passing through the Gut of Canso, notified the master of the Terne, by radio, that they had gotten through all right. This was received the evening of January 16.

 The weather having moderated somewhat, as I have said, preparations were made by Munson's representatives at Georgetown, and the master of the Terne, to load such potatoes of Dyal's as were available, and charcoal stoves, furnished by the railway, such as were used in railway cars, were placed in the holds of the Terne to preheat the same, and on the evening of January 17, the wooden dunnage and straw was slung over the sides and into the holds and the holds were made ready for the safe stowage of the potatoes.

 The following morning, January 18, the stevedores commenced work at 8 o'clock, and proceeded to load into the Terne all the potatoes of Dyal's then available. This work continued until 4 o'clock in the afternoon, when it ended, as there were no ...

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