The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
The two above-entitled suits were consolidated for the purpose of trial only.
The libels in these suits were filed against the steamship West Arrow, in rem, and against her owner, American Diamond Lines, Inc., in personam (which I will hereinafter call the claimant-respondent).
The suits were instituted to recover for loss of and damage to cargo alleged to have been owned by the above-named libelants and shipped on board the steamship West Arrow, at the ports of Philadelphia and Baltimore, in November, 1933, for carriage to Antwerp and Rotterdam, which loss of and damage to cargo is alleged to have resulted from the stranding of the West Arrow, at Fort McHenry, Baltimore, on the evening of November 9, 1933.
The libels allege that the claimant-respondent was operating the steamship West Arrow as a common carrier for hire; that the cargo was shipped on board her by the libelants n good condition under an agreement to carry it to destination and there deliver it in like good order and condition as when shipped; that the merchandise was not delivered at destination in good order and condition, but was discharged at the port of Baltimore in a badly damaged condition, the damage consisting in part of breakage and contact with sea water; and that some of the cargo was entirely lost in the port of Baltimore. The damages prayed for are in the sum of $70,000.
The present libelants originally filed libels against the steamship West Arrow in the United States District Court for the District of Maryland, at Baltimore, and the ship was arrested.
Thereafter, for the convenience of counsel, those suits were discontinued under an agreement whereby the owner of the steamship West Arrow agreed to appear in this district and furnish adequate security.
The above-entitled suits were then commenced in this district.
In addition to the claims incorporated in the present suits, there are some additional claims for damage to cargo, that of E.J. O'Brien & Co., on shipments of tobacco, on which no suit has been brought, and that on shipments of linseed oil cake, on which the Bisbee Linseed Company has filed a libel.
The total approximate sum involved in this litigation is $80,000.
The claimant-respondent in its answers to the libels and interrogatories annexed to the libels in the above-entitled suits admits that the merchandise when received on board the steamship West Arrow was in apparent good order and condition; that, when the vessel put back at her pier in Baltimore, a considerable part of the merchandise referred to in the libels was found to be wet, through contact with water, as the result of the standing of the vessel off Fort McHenry, Baltimore, on November 9, 1933.
The claimant-respondent alleges, as a separate defense, the circumstances of the stranding substantially as proven on the trial, and then pleads the third section of the Harter Act, which section in substance provides that a vessel owner shall be relieved of responsibility for less or damage resulting from faults or errors in navigation, or in the management of the vessel, or from dangers of the sea, provided the owner shall have exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied; and further alleges that the damage to libelant's merchandise was due to causes within the exceptions contained in the third section of the Harter Act (46 USCA § 192); that, having exercised due diligence to provide a seaworthy vessel, it is exempted from liability under the provisions of that Act.
The claimant-respondent alleges, as a further separate defense, that the bills of lading contain certain exceptions against liability, including (1) perils of the sea; (2) latent defects in hull, machinery, or appurtenances, or unseaworthiness of the vessel, whether existing at the time of shipment, provided the respondent shall have exercised due diligence to furnish a seaworthy ship; (3) rust, breakage, leakage, and water; and further alleges that the loss or damage was not caused by its negligence, and that the loss or damage fell within the bill of lading exceptions above mentioned, and accordingly it is relieved from responsibility therefor.
The facts are as follows:
The West Arrow is a steamer 423 feet long and 55 feet beam. Her tonnage is 5,589 gross, and 3,513 net tons. She is equipped with General Electric turbine engines and has a right-handed screw.
The West Arrow was equipped with a telemotor system made by the American Engineering Company of Philadelphia, one of the two largest American manufacturers of telemotors, which consists of two units, one in the pilot house and one aft alongside the steering engine. The forward unit has two parallel cylinders, each containing a plunger. The plungers are put in motion through a series of pinions and gears, by turning the steering wheel. When one plunger enters its cylinder, the other plunger is withdrawn. The after unit is practically the same as the forward one, except that the cylinders are in tandem.
The movement of the plungers in the cylinders of the after unit is transmitted to the control valve of the steering gear, through a crosshead and a series of links. There are two springs in the after plungers, which are in tension for a movement in one direction. These springs are used to assist in the return of the after unit to its central position. The forward and after units are connected with two lines of copper tubing.
There is an automatic by-pass valve on the forward unit, the function of which is to place the two sides of the telemotor system in communication with each other when the entire system is on center; that is, when the wheel is amidships. The valve also places the system in communication with the supply tank in the pilot house and allows fluid from this tank to flow to either or both sides of the system to compensate for any leakage that might occur on either side. When the steering wheel is turned to port or starboard, the two sides of the system are independent of each other and pressure-tight.
The telemotor lines are filled with a fluid which in this instance was Telco Oil A.A., manufactured by Vacuum Oil Company. When all air has been removed from the system, there is a solid hydraulic link between the forward and after control stations. When the steering wheel is revolved, one plunger in the forward unit is depressed and the other is withdrawn. By depressing the plunger, the pressure is built up in the line, and this pressure acts on the corresponding plunger in the after unit, which causes it to be withdrawn from its cylinder. The movement of the after unit is transmitted to the steam steering gear in the manner previously described.
On November 9, 1933, the West Arrow had been lying bow out on the north side of pier 6, Locust Point, Baltimore, Md., and she left her pier at 6:13 o'clock p.m., laden with 3,600 tons of cargo, under command of her master, unassisted by any tugs, bound for Antwerp and Rotterdam via Norfolk, Va.
Prior to undocking, her steering gear and her telemotor were tested and found to be working satisfactorily. Capt. Benton, the ship's master, did not believe that the ship had used both her starboard and port helm in undocking, but her chief engineer, Dennis J. Griffin, and her third officer, Samuel L. Cobb, testified positively that the helm was operated both ways during the undocking.
At 6:23 1/2 p.m. the ship's maneuvers, incident to undocking, were completed, and she was headed down Northwest Harbor, Baltimore, off Pier 5, Locust Point, at which time the direction of her navigation was turned over to a Chesapeake Bay pilot, Charles S. Drennan, Jr. Her drafts on leaving her pier were 18 feet 2 inches forward, and 18 feet 6 inches aft. The tide was high-water slack, the weather was clear, the night was dark, and there was a light northwest wind.
On the West Arrow's bridge were Benton, the master, Drennan, the Chesapeake Bay pilot, Cobb, the third officer, and Jasper A. Celestino, a cadet officer who was at the wheel. The chief officer, Melvin V. Mundy, with the boatswain and four sailors, were on the forecastle head, and the second officer, Shelton, and four sailors, were on the poop deck.
When the pilot took command, Lazaretto Point bore 1 1/2 points on the ship's starboard bow, and her full speed in the harbor, under the particular conditions, was about ten knots. When her navigation was turned over to the pilot, however, the ship's engines were half ahead, and she was making between four and six knots. The pilot ordered the helmsman to port the helm (old commands), to put the light on Lazaretto Point directly ahead. The helmsman executed this order, and, when the light came ahead, the pilot ordered the helmsman to steady the helm, but it was noted that the ship did not steady, but that, on the contrary, her bow continued to swing to starboard. At that time she was running on a course of 160 degrees true, was about a ship's length off the pier line, and about 1,500 feet from the point of stranding. The pilot, on observing that the vessel's bow continued to turn to starboard in spite of the "steady" order, ordered the engines full speed ahead at 6:28 p.m. and the helm hard astarboard. The engines were kept full ahead for about half a minute, and then the pilot ordered them stopped, and they were kept stopped for about half a minute, and the chief officer was directed to have both anchors ready to let go. At 6:29 p.m., the captain rang the engines full astern, and both anchors were dropped. The West Arrow then forged ahead about half a ship's length, and stranded approximately half a ship's length from the fireboat pier at Fort McHenry, and she was headed directly for that pier, at about 169 degrees true, when she stranded.
Directly after the stranding, the West Arrow's starboard anchor was hove up, she was backed up sufficiently to clear the shoal, and she was later backed up clear of the channel and came to anchor for the night, and then an investigation was made to ascertain whether there was anything the matter with her telemotor or steam steering gear. The telemotor was disconnected, and the chief engineer tested the steering engine with the trick wheel and found that it operated properly. The telemotor was then connected up to the steering engine, and a test was made by turning the steering wheel in the pilot house, and it was found that the rudder, although it followed the wheel to starboard and back to amidships, did not follow the wheel to port. The oil in the telemotor lines was then drained out and other oil was pumped in, and the telemotor then functioned properly. The West Arrow proceeded back to her pier without any assistance the next morning, November 10th.
When the vessel stranded, a hole several feet long was stove in her bottom, under the No. 1 hold, and a large quantity of water entered that hold and did the damage complained of. Whether the hole was caused by the ship's running up on her starboard anchor, or was due to her striking a hard ledge, is not clearly shown. There was a hard ledge in that locality.
Benton, the master, Cobb, the third officer, Griffin, the chief engineer, and Smith, the third assistant engineer, were of the opinion that the hole was caused by the anchor.
The West Arrow went to the repair yard of the Bethlehem Shipbuilding Corporation at Baltimore, Md., on November 15, 1933, where repairs were made on account of the bottom damage sustained in the stranding. While she was in the repair yard, her telemotor system was subjected to a detailed examination and tests were made to ascertain whether there was anything wrong with it.
The state of incorporation, organization, composition, residence, and capacity to sue of all the libelants was stipulated.
The receipt by the claimant-respondent of vrious notices of claim was also stipulated, but the issue of libelant's compliance with the requirements of notice clause, or the necessity therefor, has been reserved until after the trial upon the merits.
The following facts are either admitted in the claimant-respondent's answer or covered by stipulations of the parties: The libelant and claimant-respondent have the legal status as alleged in the pleadings; at the time of the damage, the libelants had sufficient interest in the shipments to maintain these actions; the steamship West Arrow was a general ship engaged in the common carriage of merchandise for hire; the libelants shipped on board the steamship West Arrow at the respective ports of shipment, in apparent good order and condition, the merchandise described in the libels, and a considerable part of the merchandise was discharged at the port of Baltimore, damaged by contact with water, and was not in the same condition as when delivered to the claimant-respondent and placed on board the steamship West Arrow.
On all the evidence in this case I am unable to agree with the contention of the claimant-respondent, that the cause of the stranding of the West Arrow was latent defects in hull, machinery, or appliances, etc.; on the contrary, the testimony of Capt. Benton, master on the West Arrow, Capt. Pilcher, and Capt. Ganaird, called by claimant-respondent as experts, convinces me that the proximate cause of the stranding was negligence in navigation. The vessel and claimant-respondent are liable for all damages flowing from negligence in navigation, unless the claimant-respondent can show that it is entitled to exoneration under the Harter Act (46 USCA § 190 et seq.). Liverpool & G.W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438, 9 S. Ct. 469, 32 L. Ed. 788.
The burden of proof is on the claimant-respondent to establish that it has exercised due diligence to make the ship in all respects seaworthy. W.J. McCahan Sugar Refining Co. v. The Wildcroft, 201 U.S. 378, 26 S. Ct. 467, 50 L. Ed. 794; International Navigation Co. v. Farr & Bailey Mfg. Co., 181 U.S. 218, 226, 21 S. Ct. 591, 45 L. Ed. 830; The Jason, 225 U.S. 32, 51, 32 S. Ct. 560, 56 L. Ed. 969; Earle & Stoddart v. Ellerman's Wilson Line, 287 U.S. 420, 427, 53 S. Ct. 200, 77 L. Ed. 403.
The fact that the damage was alleged to be caused by sea water, an excepted cause, does not relieve the claimant-respondent of the burden of proof, as the evidence clearly shows that there were tons of sea water in the No. 1 hold of the West Arrow, where the cargo in question was ...