The opinion of the court was delivered by: KAUFMAN
Libellant, the managing owner of the S.S. Clearwater Park, brings this libel to recover damages for breach of a 'safe-berth' provision in a charter party. The damages are alleged to have been sustained as a result of the grounding of libellant's vessel in Hingham Bay, Boston Harbor, in December 1945 and in January 1946, while under charter to respondent.
On November 9, 1945, libellant chartered the Clearwater Park, a Canadian Liberty-type tanker, to respondent for two consecutive cargoes of crude oil from one safe port in Venezuela to one safe port in the United States, north of Hatteras, Norfolk/Portland range, at charterer's option. The charter party was on a printed form. The original 'safe-berth' provision was deleted and a typewritten clause, which did not differ substantially, was substituted. The relevant portion of the substituted clause reads: 'The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival, which shall be designated and procured by the Charterer, provided that the vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer * * * .'
On or about November 9, 1945, respondent ordered the Clearwater Park to load at Las Piedras, Venezuela and designated 'Boston Harbor Hingham Bay Anchorage into lighters' as the place and manner of discharge on the first voyage. Identical instructions were given by respondent on or about December 6, 1945 for the second voyage.
Hingham Bay is a small bay in Boston Harbor. It is approached from the north through President Roads and Nantasket Roads. A vessel destined for a Hingham Bay anchorage passes south through Nantasket Gut, an opening between Peddocks Island on the west and that portion of Hull Island on the east which is called Windmill Point.
Although there is a great deal of shallow water in Hingham Bay, the then current United States Coast and Geodetic Chart No. 246 indicated an anchorage area in the bay, roughly oval in form, with over 30 feet of water at mean low tide. This area lies south of Nantasket Gut and is approximately 2,700 yards long on its north-south axis and 700 yards wide at the widest point on its east-west axis. An identical anchorage area was indicated on the then current British Admiralty chart, No. 1516, which was the only chart with which the Clearwater Park was equipped.
On the first voyage, the master of the Clearwater Park sent a message to libellant's Boston agents on December 15, 1945 advising them of the vessel's expected arrival time at Boston. Libellant's agents passed on that information to the Boston Pilots' Association and also informed the latter that the vessel was destined for respondent at Hingham Bay. The Clearwater Park arrived in Boston on December 17, 1945. She was boarded by a pilot that afternoon and proceeded into Boston Harbor, where she anchored at President Roads and was granted pratique.
The next morning, pilot Merton A. Cleverly, concededly a 'specialist' in the waters of Hingham Bay, was put aboard. The vessel heave up anchor and proceeded to Hingham Bay, where she anchored at a place designated by Cleverly at 10:04 a.m., on one anchor with 50 fathoms of chain on the windlass. On arrival, the Clearwater Park had a mean draft on 26 feet 7 1/2 inches and a draft aft of 28 feet 5 inches. Bearing taken at that time and entered in the log indicate that Windmill Point bore 5 degrees and was distant 4 1/2 cables. No soundings were taken. If these bearings are plotted on the British cart then on board the Clearwater Park, it will be found that she anchored at a place where there was only 31 1/2 feet of water at mean low tide and that she was only 300 feet within and to the east of the 5 fathom curve indicated on that chart. The same bearings plotted on U.S. Hydrographic Survey Sheet H-6642 show that she anchored in approximately 30 feet of water at mean low tide and that less than 100 yards to the northwest, west and southwest the depth was 26 feet at mean low tide.
The Clearwater Park began discharging into lighters that day and continued until early in the afternoon of December 19th. She stopped when snow began to fall and a wind, blowing from the northeast at about 35 miles per hour, reached the proportions of a moderate gale. The wind and snow continued unabated until early the next afternoon. As the weather cleared, it was observed that the Clearwater Park had dragged anchor. No bearings were taken of the place to which she had dragged. The vessel was shifted by its officers to a point from which Windmill Point Light bore North 3 degrees West magnetic and Nantasket Hill Tower bore North 65 degrees East magnetic. She anchored on one anchor with 50 fathoms of chain out in over 50 feet of water. The closest dangerous shallow water was some 300 yards to the east.
Although she slacked chains to 70 fathoms on the afternoon of December 20th, about noon of the next day she was sheering to cross currents and dragged anchor in the strong tide. She was again shifted by her officers and anchored on one anchor with 60 fathoms of chain out at a point from which Windmill Point Light bore North 3 degrees West magnetic and Nantasket Hill Tower bore North 75 degrees East magnetic. The bearings indicate that she was anchored at a place where there was 44 feet of water at mean low tide.
Discharging was completed on December 22nd without further incident. The following day at about 4:00 p.m. the Clearwater Park departed for Venezuela with a new master, who had come aboard a few hours before sailing. At that time the vessel's personnel was completely unaware of any fact which would indicate that she had touched bottom during her stay at Hingham Bay.
On December 29th, while at sea, salt water was discovered in one of the tanks of the vessel and, on inspection, it was found that the vessel's bottom had been slightly indented. Although appropriate entries of these discoveries were made on January 4, 1946 in the ship's log, the spaces provided for the place, date and hour of occurrence were either not filled in or marked 'unknown'.
Prior to the first voyage from Venezuela to Hingham Bay, and in September 1945, the Clearwater Park had been in drydock. The ship's officers testified that she had not touched bottom between that date and the time of her arrival at Hingham Bay, and between the time she sailed from Hingham Bay and the time the bottom damage was discovered. Under these circumstances, it is reasonable to infer that the Clearwater Park touched bottom some time during her stay at Hingham Bay between the 18th and 23rd of December. In all likelihood it occurred when the vessel first dragged anchor for at that time there was a wind of 35 miles per hour blowing from the northeast with dangerously low water about 100 yards to the west and southwest.
On January 1, 1946 the Clearwater Park began loading her second cargo at Las Piedras, Venezula. At or about the same time the master learned that she was destined for Hingham Bay. Prior thereto the master had expressed doubt as to the safety of Hingham Bay, when the mate had informed him that the vessel had dragged anchor there twice while discharging. Accordingly, the master wired the vessel's operators 'Suggest have safer anchorage discharge Boston as I do not consider Hingham Bay safe for this type ship in winter months.' Although no specific reason was assigned by the master, the evidence shows that his fears were founded solely on the poor holding quality of the bottom at Hingham Bay and not on the sufficiency of the depth of the water in the bay or the possible presence of uncharted rocks.
On January 7th respondent's agents in New York were notified of the master's suggestion. No reason was assigned and none was communicated to respondent or its agents, other than the general statement of the master that he considered Hingham Bay unsafe. On January 10th, libellant's agents were informed that the master's suggestion had ...