The opinion of the court was delivered by: MOTLEY
Plaintiff insurance company brings this action against the shipowner to recover the amount it paid a salvor for recovery of the ship and cargo which were stranded.
Approximately 5500 tons of sulphur were shipped in April, 1961 on board the M.V. "UNION MARINER", owned by defendant China Union Lines Limited, at Beaumont, Texas for carriage to Montreal and Chandler, Canada. The shipment was pursuant to a voyage charter party dated February 2, 1961 between Canadian Gulf Line Limited and Texas Gulf Sulphur Company, Inc., the charterer. (Pl's Exh. 4).
According to the bills of lading (Pl's Exhs. 1 and 2), the cargo was delivered to the shipper in good condition.
Plaintiff United States Fire Insurance Company, the subrogee of Texas Gulf Sulphur, and defendant China Union Lines Limited are assumed to be bound by the charter party, the issue of their obligations under the agreement not having been raised in the pretrial order.
Plaintiff seeks to recover $51,237.69, the amount cargo was held liable to pay the salvor, in an arbitration proceeding. Plaintiff claims that defendant, in violation of the shipowner's agreement to deliver the cargo at destination in like good order and condition as when shipped, delivered the cargo subject to the lien of a salvor.
Defendant counterclaims for damages in the amount of $8,686.88, cargo's share under the general average published by the adjusters on March 27, 1964. A trial was held on March 8 and 9, 1973.
The court finds for defendant with respect to both claims.
The charter provided that "the Vessel on tendering hereunder shall as far as due diligence can make her so, be tight, staunch, strong and ready for service." (Voyage Charter Party, Part II, para. 1.) However, the agreement also provided that ". . . the owner and the Vessel in all matters arising under this Charter Party shall be entitled to the like privileges and rights and immunities as are contained in Section 3(6), Section 4, and Section 11 of the Carriage of Goods by Sea Act of the United States [COGSA] approved April 16, 1936." (Voyage Charter Party, Part II). The statute provides in pertinent part:
(1) Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied. . . . Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section.
(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 ...