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August 25, 1933


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a suit brought by American-West African Line, Inc., owner of the American steamship West Kebar, against the respondents herein, for contribution in general average in connection with certain losses and expenses sustained and incurred by the libelant, as a result of the collapsing of the furnaces in the vessel's center boiler in February, 1930, while she was at the port of New York.

The Vacuum Oil Company was the shipper of the cargo, which consisted of cases of oil and gasoline and drums of gasoline.

 The Vacuum Oil Company executed a general average agreement, wherein it agreed that so much of the losses and expenses as upon adjustment of the same, to be stated by Johnson & Higgins, might be shown by the statement to be a charge upon the cargo, should be paid by it according to its ratable proportion thereof in and for settlement in accordance with the statement. The cargo of the Vacuum Oil Company is the only cargo concerned in this case.

 The Vacuum Oil Company, some time after executing the bond, transferred its assets and liabilities to the Standard Oil Company of New York, which assumed all of its liabilities. The Standard Oil Company of New York then changed its name to Socony Vacuum Corporation, and the Socony Vacuum Corporation transferred all the assets and business which it had received from Vacuum Oil Company to Vacuum Oil Company, Inc., which assumed all of the liabilities of the former Vacuum Oil Company.

 Both the Socony Vacuum Corporation and the Vacuum Oil Company, Inc., have been made parties respondent in this suit.

 The other respondents are underwriters -- apparently insurers of the cargo -- which guaranteed the payment of all proper general average, salvage and/or special charges for which the goods are liable. The Vacuum Oil Company was a self-insurer as to part of the cargo, and also executed a general average guaranty.

 The amount demanded in the libel is $5,759.20, which is the amount shown due from the Vacuum Oil Company in the general average adjustment prepared by Johnson & Higgins.

 The respondent Globe & Rutgers Fire Insurance Company is in the hands of the superintendent of insurance of the state of New York, and an injunction has been issued against the filing of suits or the continuation of suits against it.

 This suit, therefore, did not proceed as against the Globe & Rutgers Fire Insurance Company, and none of the findings herein bind it, and it is not represented before this court or bound by the decree that may be entered herein, but the suit proceeded against all the other respondents, the same as though the Globe & Rutgers Fire Insurance Company had never been made a party to this suit.

 The parties before this court stipulated that the general average adjustment may be taken as a correct statement of accounts between the parties (with the exception of an item of $365.76 covering legal liability insurance) provided that the court finds that this case is a proper one for general average contributions.

 The West Kebar is a steamship about 407 feet long, equipped with triple expansion reciprocating engines, and with three Scotch boilers. She was built in 1920. She bore the classification of A-1 in the American Bureau, which is the highest classification in that society. Alongside her name on the American Bureau Record appears the symbol of the Maltese Cross, indicating that the ship was built under the supervision of the American Bureau, and that her materials and machinery were tested to American Bureau requirements, and that she was subjected to special surveys during construction. She had been engaged in the West African trade for a number of years.

 The West Kebar arrived in Boston from Africa on January 23, 1930, remaining there three days. She arrived in New York on January 27th and went to Carteret, N.J., where she discharged machogany logs. She also carried a shipment of palm oil, some of which was loaded in her after peak tank. She next went to Pier 38, Brooklyn, where she discharged the palm oil; the discharge being completed on February 3, 1930. She went to Robins Dry Dock, arriving there at 9:10 a.m. on February 11, 1930. She came off from the dry dock on February 13, 1930, but remained in the repair yard until February 18, 1930.On that day she left for Bayonne, N.J., in tow of tugs to load kerosene, gasoline, and lubricating oil for the Vacuum Oil Company. She continued loading at Bayonne until February 21, 1930, and left that day in tow of tugs for Brooklyn. She arrived at Pier 38, Brooklyn, at about 4:30 p.m. on February 21st, Saturday, February 22d, was Washington's Birthday, and no work was done on the ship on that day or the following day, Sunday, February 23d.

 On Monday morning, February 24th, two tubes and a stay bolt in the center boiler were found to be leaking, and that boiler was cut out at 8 a.m. On February 25th furnace doors of the center boiler were opened for inspection, and it was found that the three furnaces in that boiler had collapsed and the inspectors were immediately notified. As soon as the boiler had cooled down sufficiently to permit an internal examination, Mr. Gledhill, superintending engineer of the libelant, and members of the engineering personnel of the ship, made a careful examination of the boiler and furnaces. They found indications of oil on the furnaces. The furnaces had overheated due to the presence of oil which acted as an insulator between the furnace metal and the water itself, causing the transfer of heat to be lost. Later on, a careful examination was made to ascertain where the palm oil had come from. Palm oil was found in the vessel's No. 4 port double bottom tank, where her boiler water was carried.

 Subsequently several conferences were held at the libelant's office, which were participated in by representatives of the shipowner, United States Salvage Association, the American Bureau, and the cargo interests, and it was decided that it was absolutely necessary for the safety of the ship and cargo that the cargo, which was of a highly inflammable nature, be removed, as it was necessary to use acetylene torches to move the deflected furnaces. The steamship West Lashaway, which was also owned by the libelant, was available, and it was agreed that the West Kebar's cargo should be transferred to the West Lashaway, and carried forward to Africa. The transfer of the cargo was completed on March 12th and the West Lashaway transported the cargo to Africa and there delivered it safely.

 On March 5th, all the interested underwriters now before this court entered into an agreement with Johnson & Higgins, who were concededly the agents of the libelant, wherein it was recited that the three furnaces of the center boiler had collapsed, that the surveyors had recommended the renewal of the furnaces, and that the gasoline and kerosene be discharged to permit of repairs ...

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