The opinion of the court was delivered by: MURPHY
These are two suits which arise out of the same facts.
The suit by United States of America, as requisition time charterer of the SS Esso Dover, is to recover from respondent, Anglo-Mexican Petroleum Corporation, the sum of $ 72,319.32, with interest thereon, alleged to be due as the freight for the Esso Dover for carrying, in March, 1945, a quantity of fuel oil and diesel oil from the port of Fortaleza, Brazil, to the port of Montevideo, Uruguay. The oil loaded aboard the Esso Dover at Fortaleza was the same oil which previously had been shipped by the respondent on the SS Esso Providence on an intended voyage of the latter vessel from the port of Caripito, Venezuela, on February 12, 1945, to the port of Montevideo. A few days after the Esso Providence departed from Caripito and Trinidad, she broke down at sea, and the vessel was towed into the port of Fortaleza, where the oil laden aboard the Esso Providence was transferred to the Esso Dover under an agreement made by and between the libelant United States of America, as requisition time charterer of both the Esso Providence and the Esso Dover, by Standard Oil Company (N.J.) as the owner of both vessels, and by respondent, Anglo-Mexican Petroleum Corporation, as the shipper of the oil originally loaded aboard the Esso Providence at Caripito and transferred to the Esso Dover at Fortaleza. Such agreement was reduced to writing and was incorporated in the tanker voyage charter party, dated New York, March 10, 1945, between the United States as the owner of the Esso Dover and respondent, Anglo-Mexican Petroleum Corporation.
The suit by Standard Oil Company (N.J.) is against respondent Anglo-Mexican Petroleum Corporation, to recover the sum of $ 14,659.45 alleged to be due from the respondent to libelant Standard Oil Company as a contribution in general average incurred in connection with the towing of the Esso Providence from the place of her breakdown on the high seas to the port of Fortaleza, after she had broken down and became disabled when the shoe portion of the stern frame broke through a defective thermit weld which failed, necessitating the cutting away of the whole rudder assembly. The thermit weld which failed was made in 1938, as a repair of a previous fracture of the stern frame which was found when the vessel then dry-docked.
Clause 21 of the voyage charter of the Esso Providence provided:
'In the event of accident, danger, damage, or disaster before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which or for the consequence of which the Owner is not responsible by statute, contract, or otherwise, the cargo, shippers, consignees, or owners of the cargo shall contribute with the Owner in general average * * * '.
By the Carriage of Goods by Sea Act, incorporated in the voyage charter (Clause 25), and by Clause 1(a) of the charter, libelant Standard Oil was obligated to have and maintain the vessel in every respect seaworthy and fitted for the voyage, so far as could be attained by the exercise of due diligence. It was not responsible for loss or damage arising or resulting from latent defects not discoverable by due diligence.
The obligation of the cargo owner to contribute in general average was conditioned upon the libelant Standard Oil having exercised such due diligence. Respondent denies that this was done.
The issue in the case is, therefore, whether the evidence shows that libelant Standard Oil exercised due diligence to place and maintain the Esso Providence in seaworthy condition for the voyage on which the accident happened. It is the same issue for both suits and accordingly they have been consolidated for trial.
The following are made by the court as
1. The oil tanker SS Esso Providence, formerly named 'Cerro Azul', was voyage chartered by its time charterer, the United States of America, libelant, to respondent, on February 7, 1945, to carry a cargo of diesel and fuel oil from one or more ports in the Caribbean and West Indies, including Colombia and Venezuela, to Montevideo, Uruguay. The vessel sailed with full cargo from Caripito, Venezuela, on February 12, 1945.
2. On February 19, while proceeding on her voyage off the coast of Brazil, the vessel's first assistant engineer, Richmond, who was on watch in the engine room, experienced a sudden shock which made a lot of noise and shook the engines. Vibration came along the shaft and felt as if the propeller had hit something; after a minute or so everything went back to normal. He made an entry in the engine log book which reads: 'At 5:32 propeller struck submerged object,- immediately notified bridge.' This was not the original entry which was changed by Richmond at the suggestion of the Master and Chief Engineer to 'sound better,' and which read originally 'vessel hit submerged object at 5:32.'
3. The vessel continued operation until the following day when at 1824 the engines were stopped upon discovery that the rudder stock canted to port and the steering engine jammed with rudder hard right. Upon notification to the United States Navy, the USS Rockaway was sent and arrived on February 22. A United States Naval boarding party inspected the rudder and reported the stern frame completely broken at the top. On arrival of the USS Chain, a Navy repair ship, on February 25, the damage was examined again, the rudder post cut away and the vessel assisted to the port of Fortaleza, Brazil, where it arrived on March 5.
4. Continuance of the voyage by the Esso Providence being no longer possible, its cargo was transferred to the SS Esso Dover, which carried it forward to Montevideo. Subsequently the Esso Providence was towed by tug from Fortaleza to Newport News for repairs.
5. The cause of the failure was a fracture in the forward thermit weld in the skeg of the stern frame of the Esso Providence, which weld had been made in November, 1938 at the Todd Galveston Dry Dock, Inc., Galveston, Texas.
6. The Esso Providence, then the SS Cerro Azul was drydocked for examination at the Todd yard on October 31, 1938, whereupon the stern frame was found to have cracked about midway of the skeg- one crack being about 7' long and the other 5' long, and 2 1/2 ' deep. Examination was made by a surveyor to the American Bureau of Shipping, C. H. Cook, and an inspector of the Bureau of Marine Inspection and Navigation of the Department of Commerce, Capt. A. S. Phelan, and Frank Cox, in charge of ship repairs for libelant Standard Oil. They were of the opinion that the bad section should be cut out and a new section inserted by means of two thermit welds.
7. The contract for the repair was given to Todd Galveston Dry Dock, Inc., which contracted for the furnishing of the thermit welding material and equipment and the supervision of the thermit welding process with Metal & Thermit Corporation. The American Bureau of Shipping made it a requirement ...