The opinion of the court was delivered by: MOORE
Three suits in admiralty brought to recover demurrage have been consolidated for purposes of trial. The principal libel was filed by the owner of the vessel Malmohus to recover demurrage due in accordance with clause 11 of Part II of its charter party. The owner brought its libel against both its charterer Manuel Kulukundis and the consignee of the cargo Paragon Oil Company, Inc. Sub-charterers were impleaded.
Paragon's principal defense was breach of warranty of seaworthiness, in that the vessel's slow discharge rate and the cargo's contamination were due to libelant's failure to use due diligence in preparing the vessel.
The question is which, if any, of the parties is liable for demurrage charges pursuant to the respective charter parties. Consideration of the testimony, the exhibits, the briefs submitted and the applicable principles of law leads to the following findings and conclusions.
1. Libelant, Compagnia Di Navigazione Mauritius Rome, an Italian corporation, owner of the Italian flag vessel Malmohus, chartered that vessel for a series of voyages to Manuel Kulukundis, an individual with an office and place of business in the City of New York, under a charter party dated January 9, 1951. (Exhibit 1.)
2. Manuel Kulukundis, by charter party of the same date, sub-chartered the vessel on terms similar to his charter party with libelant to Intramar S.A., a Swiss corporation.
3. Intramar sub-chartered the vessel to Republic Tankers, S.A., a Panamanian corporation, by charter party dated July 23, 1952, and Republic Tankers then sub-chartered the vessel for a single voyage to Paragon Oil Company, Inc., a New Jersey corporation with a place of business in Brooklyn, New York, by charter party dated July 24, 1952.
4. The three charters in evidence are all in Warshipoilvoy form, but those between Compagnia Di Navigazione Mauritius Rome (referred to as 'libelant') and Kulukundis and between Kulukundis and Intramar specified 144 hours total laytime in running hours, with demurrage of $ 135 per hour thereafter, whereas the charter between Intramar and Republic specified only 72 hours laytime and demurrage of $ 180 per hour. There are no other material variations in the charters.
5. The pertinent provisions of the charter party (Exhibit 1) are:
'1. Warranty. The Owner shall, before and at the commencement of the voyage, exercise due diligence to make the Vessel seaworthy, properly manned, equipped, and supplied for and during the voyage, and to make the pipes, pumps, and heater coils tight, staunch, and strong and in every respect fit for the voyage, and to make the tanks, holds, and other spaces in which cargo is carried fit and safe for its carriage and preservation.'
'4. Notice of Readiness and Commencement of Laytime. When the Vessel has arrived at the port of loading or discharge and is ready to load or discharge, a notice of readiness shall be tendered to the Charterer or its agent by the Master or Agent by letter, telegraph, wireless or telephone. The Vessel shall be deemed ready within the meaning of this clause whether she arrives during or outside of usual business hours, whether she is in or out of berth or whether or not she has ballast water or slops in her tanks. Laytime shall commence either at the expiration of six (6) running hours after tender of notice of readiness, Vessel in or out of berth, except that any delay to the Vessel in reaching her berth caused by the fault of the Vessel or Owner shall not count as used laytime; or immediately upon the Vessel's arrival in berth (i.e. finished mooring when at a sealoading or discharging terminal and all fast when loading or discharging alongside a wharf) with or without notice of readiness, whichever first occurs.'
'5. Laytime. The number of running hours specified as laytime in Part I shall be permitted the Charterer for loading, discharging, and used laytime; but any delay due to breakdown or inability of the Vessel's facilities to load or discharge the cargo within the time allowed shall not count as used laytime. If regulations of the Owner prohibit loading or discharging of the cargo at night, time so lost shall not count as used laytime; if the Charterer, shipper or consignee, or the port authorities prohibit loading or discharging at night, time so lost shall count as used laytime. The Vessel shall have the right to sail from all ports immediately upon the completion of loading or discharging whether or not laytime has expired.'
'11. Demurrage. Charterer shall pay demurrage per running hour and pro rata for a part thereof at the rate stipulated in Part I for all time that loading and discharging and used laytime as elsewhere herein provided exceeds the allowed laytime herein specified. If, however, demurrage shall be incurred at ports of loading and/or discharge because of fire or explosion in or about the plant, or because of breakdown of machinery or loading or discharging facilities of the Charterer, shipper or consignee of the cargo, the rate of demurrage shall be reduced to one-half the rate stipulated in Part I hereof per running hour and pro rata of such reduced rate for part of an hour for demurrage so incurred.'
'17. Heating. If heating of the cargo is requested by the Charterer, the Owner shall exercise due diligence to maintain the temperatures requested. Notwithstanding any other provision herein the Owner shall not be responsible if such temperatures are not maintained by reason of any cause beyond the Owner's control and the laytime and demurrage provisions herein shall remain in full force and effect. The burden of proving the failure to exercise due diligence shall be on the Charterer or person claiming damage or other relief. Whenever the Owner's failure to maintain temperatures is excused under this or any other provision of this Charter, Charterer shall assume all risks of delay during discharge due to the nature or condition of the cargo and shall pay demurrage if any.'
'18. General Exceptions Clause. * * * And neither the Vessel, her Master or Owner, nor the Charterer shall, unless otherwise in this Charter expressly provided, be responsible for any loss of or damage or delay to or failure to discharge or deliver the cargo arising or resulting from: -- Act of God; act of war; act of public enemies, pirates or assailing thieves; arrest or restraint of princes, rulers or people; seizure under legal process provided bond is promptly furnished to release the Vessel or cargo; strikes, lockouts, stoppage or restraint of labor from whatever cause whether partial or general; or riot or civil commotion. No exemption afforded the Charterer under this clause shall relieve the Charterer of or diminish its obligations for payment of any sums due the Owner under other provisions of this Charter.'
6. The voyage in issue commenced at Tampico, Mexico, where the vessel, in seaworthy condition, docked for ...