Hays, Mansfield and Mulligan, Circuit Judges.
Appellant, the Director General of the India Supply Mission (Mission) appeals from a judgment of the United States District Court, Southern District of New York, Judge Edward C. McLean, dismissing two causes of action: (1) for damages in the sum of $6,234.11 for a shortage in delivery and contamination of plaintiff-appellant's cargo of rice; (2) for reimbursement for cargo's proportional share of contribution to a third party salvor in the sum of $146,072.64. The appellant also appeals from the judgment of the District Court awarding the defendant-appellee Luarca Cia. Nav. S.A. (Luarca) $21,760.60 with interest from September 1, 1964, on its counterclaim to recover cargo's share in contribution to General Average. We affirm.
The plaintiff-appellant Mission, a purchasing agency of the Government of India, and the defendant-appellee Luarca, a Panamanian corporation which was the registered owner of the S.S. THEOKEETOR (subsequently renamed S.S. MARU) entered into a voyage contract of Charter Party on June 21, 1963 for the transportation of bagged rice from Lake Charles, Louisiana to a safe port in India.
Pursuant to contract, a cargo of 10,203 long tons of rice was loaded on board the THEOKEETOR at the port of Lake Charles, Louisiana. She sailed on July 30, 1963 for a scheduled bunkering stop at Freeport, Grand Bahama Island, arriving on August 3, 1963. After taking on some 769 long tons of fuel and fresh water, the vessel waited a day because of hurricane threats, and then sailed from Freeport at 1810 hours on August 4, 1963. At 1835 hours, while headed on a course of 305 degrees, the vessel began to vibrate and ran hard aground in approximately 24 feet of water. The master unsuccessfully attempted to free the ship using her own engines. Some 784 long tons of fuel were transferred to a lighter, and 200 long tons of fresh water were discharged in an effort to free the ship by lightening it. Two tugs were employed in a further effort to pull the ship free. All of this was to no avail and on August 8, 1963 the master of the THEOKEETOR signed a Lloyds "no cure-no pay" salvage contract with a representative of a professional salvor, Merritt-Chapman & Scott. Between August 13th and August 15th some 511 tons of rice were discharged to another vessel under the salvor's direction. With great difficulty, using 5 and eventually 8 beach gears, ships winches and a salvage boat, the THEOKEETOR was pulled free and refloated on August 15, 1963 after a week of strenuous assistance by the professional salvor. She eventually completed her voyage and discharged her cargo on September 30, 1963 in India.
The legal position of the plaintiff shipper below was that the stranding, which caused the cargo damage, the salvage and General Average expenses, was due to the unseaworthiness of the vessel which was overloaded and carried obsolete navigational charts of the area of the stranding. The position of the defendant shipowner was that the stranding was solely due to a neglect or error in navigation by the master which is an excepted peril under 46 U.S.C. § 1304(2) (a) (COGSA).
"(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from --
(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;
The charter party here incorporated COGSA and also included a New Jason Clause*fn1 which obligated the shipper to pay salvage costs attributable to cargo as well as General Average expenses.*fn2
The burden of proof is clearly on the defendant shipowner to establish that the stranding and consequent damages were due to the excepted cause of negligent navigation by the master. Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426 (2d Cir.1963); G. Gilmore & C. Black, The Law of Admiralty § 3-43, at 162-63 (1957). We agree with the finding of the court below that the defendant has discharged its burden of proof. The master's testimony was that he did not check any chart in setting his course; that he navigated without a pilot, and that he depended upon his knowledge of the waters, making visual observations and heading on an angle with Holmes Cay which he could see ahead. The master testified:
"I knew by estimation, seeing outside; outside, I mean, the land. And I maneuvered the ship by estimation, without plotting the course for positions from the chart."
Although this type of navigation might have the virtue of simplicity, it resulted in the THEOKEETOR's running hard aground about a mile from shore.
The shipper has urged that the ship was unseaworthy because its charts of the Grand Bahama Island area were published in December 1939 and brought up to date only to November 25, 1944. It is not disputed that the chart was almost 20 years old and inaccurate. For this reason the vessel was unseaworthy as found by the lower court Farr v. Hain S.S. Co., 121 F.2d 940, 945 (2d Cir.1941); The Maria, 91 F.2d 819, 824 (4th Cir.1937). This however does not end inquiry. Where the carrier has brought itself, as in this case, within the excepted peril of negligent navigation, the burden then shifts to the cargo owner to establish that the unseaworthiness caused the damages sought. "Therefore once the carrier has brought forth evidence establishing the defense of error in management the ...