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May 7, 1968

AMERICAN METAL COMPANY, Ltd., et al., Plaintiffs,
M/V BELLEVILLE et al., Defendants, and Three Consolidated Causes

Metzner, District Judge.

The opinion of the court was delivered by: METZNER

METZNER, District Judge.

These are four consolidated actions arising from the stranding of the motor vessel Belleville off Newport, Rhode Island on September 24, 1957. In the action numbered Ad. 192-296, certain cargo interests (hereinafter called "cargo claimants") brought suit against the vessel and her owner for cargo damage. The shipowner filed a limitation of liability petition, Ad. 194-16, in which the salvor has been impleaded. The cargo claimants also filed separate suits against the salvor, Ad. 195-356, and against the master of the Belleville at the time of the stranding, Ad. 196-3. The suit against the master has been discontinued. In the other three actions, the claimants seek recovery from the shipowner for cargo damage caused by the stranding, from the shipowner and the salvor jointly for additional damage allegedly caused by negligence in the salvage operation, and from the salvor alone for salvage charges already paid by cargo under protest. The claims for damages total $294,263.27 and include the following items: nondelivery, delivery in damaged condition, short delivery, on-carriage expenses, salvage and general charges.

 I. The Stranding

 Under the Carriage of Goods by Sea Act, 46 U.S.C. § 1304, and general maritime law principles, a shipowner is not liable for damage to cargo caused by error or neglect in navigation. Cargo claimants may recover only if there was an unreasonable deviation from the ship's contemplated voyage or some unseaworthy condition, which was a proximate cause of the damage.

 The Belleville was a general cargo vessel owned by Skibs A/S Solstad and was of Norwegian registry. It was operated by the Barber-Fern-Ville Lines, for whom A. F. Klaveness & Co. were the managers and Barber Steamship Lines, Inc. the general agents in the United States. The vessel had picked up cargo in the Far East for discharge at Atlantic and Gulf ports in the United States. The vessel was grounded on Seal Rock at Brenton Reef, outside Narragansett Bay, and broke up.

 The particular portion of the voyage with which we are concerned covers New York to Boston to Philadelphia. Part of the vessel's cargo was discharged at New York. Pilot Staalesen was taken on in New York. For years he had been employed by Klaveness to handle its vessels on this portion of the voyage. The Belleville took an open sea course up to Block Island, where the pilot took over to go through Buzzards Bay and the Cape Cod Canal to Boston. At Boston additional cargo was discharged. At the time of leaving Boston, Staalesen was asked to return to Boston after taking the Belleville through the Cape Cod Canal in order to take another Klaveness vessel, the Corneville, down through the canal the next day. He arranged with the master of the Belleville to let him off at the pilot station off Brenton Reef Lightship outside Narragansett Bay. The pilot station was the waters between the lightship and the entrance to Narragansett Bay, where pilot boats picked up and delivered pilots to vessels. This arrangement allowed Staalesen to return to Boston by way of Newport instead of staying on the vessel all the way to Philadelphia. The vessel came down from Boston through the Cape Cod Canal and Buzzards Bay, but instead of continuing outside Block Island into the ocean, it went some 10-15 miles off that course to drop the pilot. As it approached the area of the pilot station at 5:22 AM on September 24, 1957, it was grounded. But for this unhappy accident, about an hour of time would have been lost on the trip to Philadelphia.

 In all the years that Staalesen had been a pilot for Klaveness, this was the first time he had been let off a vessel at Brenton Reef after coming through Buzzards Bay, instead of proceeding directly past Block Island. His fee was $125 to take the vessel from Boston through the canal and an additional $25 to continue down to Philadelphia on the open sea course. When the vessel arrived at the Delaware River, a state-licensed pilot would have had to be taken on to navigate the vessel up to Philadelphia. Consequently, there was no need for Staalesen to stay on the vessel. On the other hand, Staalesen could have secured another pilot for the Corneville, but would have lost the extra income.

 The pilot station was an established point where vessels could drop pilots after coming down from Boston through the Cape Cod Canal. There was no other place to do this east of Brenton Reef.

 The course from Buzzards Bay to the pilot station was laid out by Staalesen and the master. At 4:25 AM the Belleville passed the Buzzards Lightvessel and proceeded toward the Brenton Reef Lightvessel, whose light, as well as that of Beavertail Point, was visible. The vessel was on a westerly course and should have been navigated with the light on Seal Ledge Buoy to starboard, the light on Brenton Reef to port and the bow of the vessel pointing toward Beavertail. However, no one on the vessel saw the Seal Ledge Light and the vessel came inside that light and pointed toward Beavertail, which mistakenly had been pointed out to the master as Brenton Reef Light. While the master was checking on this information, the vessel stranded on Seal Rock, which is about a mile from where it was to meet the pilot boat.

 As the Belleville came down from Buzzards Bay toward the pilot station, the chief mate and two unlicensed men were on duty. At 5:00 AM the chief mate ordered one of the unlicensed men to rig a ladder in order to disembark the pilot. The other unlicensed man was at the wheel. There was thus no bow lookout at the time. Such a lookout would have reported the presence of lights and any objects in the course of the vessel. Under the good weather conditions existing in the early morning of September 24, the Seal Ledge Buoy Light could be seen for about 4 miles. The Belleville was operating with a 1950 issue chart with corrections entered in pencil or ink to bring it up to date. The corrections did not indicate that the light at Sakonnet Point was out of working order, but this had no effect on the issues in this action.

 The above recitation of the facts brings us to the first issue in these cases. Did the Belleville deviate from its course when it proceeded to the Narragansett Pilot Station to drop Staalesen, and if so, was such a deviation reasonable?

 As noted above, the cargo from the Far East was destined for Atlantic and Gulf ports in the United States. The bill of lading contained the type of broad "liberty" clause discussed in American Cyanamid Co. v. Booth S.S. Co., 99 F. Supp. 232 (S.D.N.Y.1951), aff'd on opinion below sub nom. Feuer v. Booth S.S. Co., 195 F.2d 529 (2d Cir. 1952); Haroco Co. v. The Tai Shan, 111 F. Supp. 638 (S.D.N.Y.1953), aff'd on opinion below sub nom. Frederick H. Cone & Co. v. The Tai Shan, 218 F.2d 822 (2d Cir. 1955). As these cases indicate, such a clause must be trimmed down to what must have been fairly agreed upon by the parties as to the voyage of the vessel. A deviation is a departure from this agreement. No one is complaining, as well they could not under the liberty clause, that taking the vessel from New York up to Boston and back down past New York to Philadelphia was a deviation. The complaint is directed to the detour to Brenton Reef on the Boston-Philadelphia leg of the journey. The presence of the pilot on the Belleville after coming through Buzzards Bay was of no advantage to the ship since he would not aid navigation down to the Delaware River, at which point a Pennsylvania-licensed pilot would have had to take over to take the Belleville up to Philadelphia. Even though the Belleville normally carried its pilot to Philadelphia, I cannot conceive that such procedure was within the contemplation of the parties when the bill of lading was issued, so as to prevent the vessel from dropping its pilot at the first available station after his services had been completed. This is especially true since the Narragansett Pilot Station was utilized by other ships for that very purpose. Under the circumstances, this must be considered the normal route between both ports. The only way the stop at the pilot station could have been avoided would have been to use a Cape Cod pilot who lived on the Cape and owned his own pilot boat. The vessel was not compelled to make such a choice. The intended dropping of the pilot at the Narragansett Pilot Station was not a deviation from the voyage contracted for.

 Even if a deviation could be found under the facts of this case, it certainly would not be an unreasonable one so as to violate the statutory limitations in the Carriage of Goods by Sea Act in 46 U.S.C. § 1304(4). As Judge Dimock pointed out in the Haroco case, supra, the presence of the liberty clause may be considered as bearing on the reasonableness of the deviation even though the clause does not prevent the finding of such deviation.

 Since there was no deviation in breach of the provisions of the contract of carriage or of COGSA, liability for what occurred cannot be attached to the carrier unless the loss arose from unseaworthiness caused by want of due diligence on the part ...

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