The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
The first above entitled suit was brought by libellants, Balfour, Guthrie & Co., Ltd., and Commonwealth African, Ltd., against the Steamship Zarembo, to recover for alleged damage by sea-water and sweat to bags of cocoa beans shipped from West African ports to the port of New York.
The second above entitled suit is brought on a cross-libel by the claimant, American-West African Line, Inc., against Balfour, Guthrie & Co., Ltd., and Commonwealth African, Ltd., to recover for general average expenses incurred in connection with the voyage.
By consent the two suits on libel and cross-libel were tried together before me, and as both suits arise out of the same voyage, one opinion for both cases will suffice.
As my findings of fact and conclusions of law in each case accompany this opinion, it will be necessary only to refer in a broad way to some of the facts on which my conclusions are based.
The important questions presented upon the trial of these suits are whether the Zarembo was seaworthy or whether the owner had used due diligence to make her seaworthy at the commencement of the voyage, and whether the vessel was relieved and exempted from liability by the provisions of the bills of ladings relating to perils of the sea and whether the cross-respondents were severally liable for expenses in general average.
The damage from sea-water is alleged to have been caused by two cracks in what is described as the G-2 plate, which is the No. 2 plate, numbering aft from the bow, in the G strake, numbering up from the keel.
The Zarembo is a three island ship of the type known as the Isherwood, 396 feet in length overall, 53.02 feet beam the depth of the lower hold being 18 feet and the tween decks 9 feet.
The Isherwood type of Steamship is little, if any, more subject to damage from panting than the transaverse type.
The Zarembo was built in 1919, and was well built, and was so constructed that beams and plates, including the G-2 plate on the inside of the vessel, could be easily inspected from the inside when afloat, but the inspection of the outside of the plate could be made only when the vessel was on dry dock, or the vessel was light enough for the plate to be out of the water.
A large amount of testimony was given by surveyors, mariners and metallurgical experts with reference to the cause of the cracking of the G-2 plate, which need not be specifically recited here, and I am convinced that it was not due to metal fatigue, as contended by claimant, but was due to corrosion and grooving of the G-2 plate, which because of its thinness, grooved and cracked under the unusually violent winds and waves, between December 29th, 1939, and January 9th, 1940. The plate in question, when measured, after it had been removed on the return of the vessel to New York, showed more than a reduction in thickness of twenty-five percent, which is the limit usually accepted as the maximum. I, therefore, am convinced that as to the No. 1 hold the vessel was unseaworthy before and at the beginning of the voyage.
Under the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303, the carrier is bound before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy, and by Section 1304(1) of that Act, whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier, or other persons claiming exemption under that Section.
The duty of the carrier to use due diligence is not satisfied by delegating that duty to a third person. Philippin Refining Corporation et al. v. United States, D.C., 29 F.2d 134; Id., D.C., 33 F.2d 974, affirmed 2 Cir., 41 F.2d 1010.
The obligation of the ship owner to use due diligence to make the vessel seaworthy under the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., is the same as under the Harter Act, 46 U.S.C.A. §§ 190 et seq., and the Supreme Court in International Navigation Co. v. Farr & Bailey Manufacturing Co., 181 U.S. 218, at page 226, 21 S. Ct. 591, at page 594, 45 L. Ed. 830, said: "The obligation was to use due diligence to make her seaworthy before she started on her voyage, and the law recognizes no distinction founded on the character of the servants employed to accomplish that result."
The Zarembo was examined annually and whenever she was on dry dock in this country, by the surveyors of the American Bureau of Shipping and the United States Inspectors of the Department of Commerce, who were accompanied by officers of the ship, and in some instances by the Port Engineer, and Marine Superintendent of the claimant, and she was also given a special examination every four years. An annual examination was made in January, 1939, and a four years' examination was made in November, 1939, just before the Zarembo sailed on the voyage in question. The examination of the plates of the ship was made in the usual manner, which is accepted generally as good practice, that is, the examiner would visually examine the plates to see if there was anything wrong, or suspicious with any plate, such as corrosion, grooving, or other causes, and if there was, by the use of a hammer, determine if further investigation was necessary, and if so, to drill a hole in the plate for a final determination. The following men participated in such examinations, and none of them found any groove, or other than a little corrosion in the G-2 plate: Mr. Gledhill, the port engineer of the American-West African Line, Inc., a man of long experience as an engineer at sea in the corrosion of ships, and for a short time surveying, said that at the annual survey in Junuary 1939, he made an examination of the exterior of the ship, including the G-2 plate, the second or third time after the ship was cleaned and scraped, at which time he was accompanied by Mr. Mackenzie and a yard man, most of whose function was to record what they instructed him to take care of. He also said that at Robin's Dry Dock in November, 1939, he examined externally the plates, including the G-2 plate in question, after they had been scraped, wire brushed and hosed, and did not find any undue corrosion, or groove, and that at that time there was present with him an American Bureau Surveyor, a local United States Inspector, and Captain Sparrow, the American-West African Line's Marine Superintendent.
Captain Sparrow, the Marine Superintendent, of the American-West African Lines, a man of long experience as a Master of ships, engaged in the West African trade at the ports in question, was stationed at one of them, the port of Lagos, for five years, was general agent representing steamship owners, and the United States Shipping Board. He said that he participated in the January, 1939, survey, with Mr. Mackenzie, the American Bureau of Shipping Surveyor, and the United States Government Inspector, Mr. Gledhill and a man from the yard were present, and that at that time the sides of the vessel had been cleaned off to the extent of wire brushing, scraping, and prepared to receive paint, and that he did not find any grooves or depressions in the plates on the starboard side forward, including the G-2 plate in question, nor any evidence of any cracking or excessive corrosion. He supervised and ordered the cleaning of the ship for the November, 1939, examination. He did not examine the interior of the plates, but did examine the exterior of the plates, including the G-2 plate in question, with the same persons as those named by Mr. Gledhill after it was cleaned off and found no evidence of undue corrosion, or grooves in the plates.
Mr. Watkinson, an experienced man, and a United States Steamboat Inspector of the Department of Commerce, who had acted as such for about 35 years, the holder of a Master's license for inland waters, and prior to that time had serviced aboard vessels, and held his position as a result of an appointment after passing an examination. He is also referred to as a Local Inspector, and had acted as such at New York, Providence and Buffalo. He said that his duty was to make an examination of vessels and their equipment, and report as to the conditions found, and if satisfied, a certificate issued once a year.He further said that he examined the interior of the Zarembo while in the water, and the exterior while in dry dock, in January, 1939, ...