Appeal from a judgment of the District Court for the Southern District of New York, Edward Weinfeld, Judge, awarding damages to owner pro hac vice of vessel for breach of warranty of safe berth at time and voyage charterers. Modified as to the division of damages with the voyage charterer required to indemnify the time charterer in full.
Lumbard and Mays, Circuit Judges, and Jameson, District Judge.*fn*
Defendant and third party plaintiff, Oswego Shipping Corporation, a time charterer, and third party defendant, Banco do Brasil, a voyage charterer, appeal from a judgment in the Southern District which awarded $265,727.29 to plaintiff, Venore Transportation Company for breach of warranty of safe berth by both Oswego and Banco do Brasil resulting in damage to the SS Santore, of which Venore was owner pro hac vice.*fn1 Concluding that the acts and conduct of Oswego and Banco do Brasil were responsible for the damage to the Santore, 363 F. Supp. 1366, 1374 (S.D.N.Y. 1973), Judge Weinfeld held that "there should be a division of damages" with Oswego, the time charterer, directly liable to Venore for the full extent of loss, and Banco do Brasil required to indemnify Oswego for one half of the judgment recovered by Venore.
On appeal, Oswego argues that it is entitled to full indemnification from Banco do Brasil. Banco do Brasil also appeals and seeks to avoid any liability by maintaining that a safe berth was, in fact, provided the Santore; that even assuming the berth was not safe, the intervening negligence of the vessel relieved the charterers from liability; and that, in any event, the intervening negligence of the time charterer, Oswego, relieved it, the voyage charterer, from any obligation to indemnify. The judgment of the district court is modified with regard to the division of damages to the extent that we hold that Banco do Brasil must indemnify Oswego in full. As so modified, the judgment is affirmed.
On April 24, 1964, the SS Santore, a 14,095 gross-ton ship, owned pro hac vice by Venore Transportation Company, sailed from Galveston, Texas, loaded with a full cargo of wheat destined for hunger-stricken northeastern Brazil. The ship was under a standard New York Produce Exchange form of time charter, clause 6 of which provided that "the cargo or cargoes be ladened and/or discharged in any dock or at any wharf or place that charterers or their agents may direct, provided the vessel can safely lie always afloat at any time of tide, except at such place where it is customary for similar size vessels to safely lie aground."
Oswego, in turn, had entered into a voyage charter with Banco do Brasil which provided in part that Banco do Brasil would assure safe berths in Salvador, Recife, and Fortaleza, the Brasilian ports at which the SS Santore was to discharge its cargo.
On the evening of May 8, 1964, the SS Santore arrived in Salvador. She was to dock at a pier known as the "Coal Wharf" where two receivers designated by Banco do Brasil maintained equipment for the discharge of grain. At the time of the Santore's arrival, however, another ship was occupying the berth, so that the Santore remained at an anchorage outside the breakwater awaiting the departure of this other vessel.
Two days prior to the Santore's arrival, Captain Edward Long, Oswego's port captain, had arrived in Salvador to arrange for the ship's docking and the expeditious discharge of cargo. Captain Long, who had never before been in Salvador, discussed docking arrangements with Cory Brothers, Oswego's agents in Salvador, and spoke with the receivers designated by Banco do Brasil, Moinha da Bahia, S.A. and Bahia Industrial S.A., about the installation of special equipment to facilitate the unloading process. He also inspected the wharf and concluded that it was satisfactory in all respects. While there, he noticed that two pontoons were placed between the pier and the discharging vessel then lodged there, the purpose being to prevent the ship from striking against the concrete pier and to enable the vessel to float in water deeper than its draft while docked.
After the SS Santore's arrival, Captain Long went on board and discussed with Captain Edelheit, the ship's master, plans for discharging the cargo. At this time, Captain Long informed him about the use of the pontoons at the berth.
On May 10 at about 1:00 p.m. the Santore proceeded to the Coal Wharf for docking. As the ship neared the dock, it was noticed that one of the pontoons was missing. After inquiries were made by the harbor pilot, he and Captain Long reported back to Captain Edelheit that the pontoon had been damaged, that it would be returned within a few hours, and in the meantime it would be "all right" for the Santore to moor with one pontoon.
Relying on these assurances, Captain Edelheit, who had no familiarity with the port at Salvador and had had no prior experience with pontoons, proceeded to dock the ship. After he and Captain Long were convinced that the unloading equipment was functioning properly, Captain Long went ashore, followed shortly thereafter by Captain Edelheit at about 6 p.m. While the captains were ashore, the weather changed. First there were brief squalls and intermittent rain; thereafter there was torrential rain, thunderstorms, and squalls. When Captain Edelheit returned to the ship at 10:30 p.m., the SS Santore was rolling and slamming into the pier with the single pontoon acting as a pivot.
At 1:20 a.m., the ship took a sharp roll and crushed the pontoon. Fearful that the vessel would be seriously damaged, Captain Edelheit went ashore to get a pilot and a tug to assist in moving the ship to open water. Because he could not speak Portuguese, he encountered some initial difficulty in obtaining assistance, but eventually contacted Cory Brothers, Oswego's agents in Salvador. A pilot was found and the SS Santore was moved from its berth. Subsequent investigation revealed that the bow of the ship had been sharply dented and that several of its hull plates had been pushed in as a result of the ship's smashing against the dock and the pontoon.
After leaving its berth, the ship remained at its earlier anchorage beyond the breakwater until May 13. During this period Captain Edelheit refused to return to the pier without an assurance that at least two, and preferably three pontoons would be provided. On May 13, the ...