The opinion of the court was delivered by: POLLACK
This is a dispute between the time charterer and the owner of the S.S. BARBERBROOK as to liability for damage to a cargo of coffee caused when water entered the hold where the coffee was stowed. The time charterer and the owner, the defendants in this action, concede liability to the cargo owners and have filed cross claims for indemnity against each other. Assignment of liability depends upon interpretation and application of the terms of the charter party, binding the two co-defendants, to the facts as found by the Court.
The following facts have been largely stipulated by the parties and those not stipulated have been found by the Court.
Plaintiffs are the owners of various shipments of bagged coffee carried from Douala, in Africa, to New York and Norfolk on the S.S. BARBERBROOK in June 1974. All or part of these shipments were damaged as a result of contact with salt water during the voyage, and plaintiffs are concededly entitled to recover from either or both defendants the total damages of $435,000. This sum is inclusive of all court costs and all interest to January 31, 1975.
The vessel was owned by defendant Helecho Shipping Corporation and at all relevant times was under time charter to defendant Barber Steamship Lines, Inc., which issued bills of lading and collected the freight. The governing contract between the defendant owner and charterer is the charter party dated January 19, 1973. Barber Lines was actually a sub-charterer, but it has been stipulated that it is bound by the charter party in the place of A/S Garronne-Glittre, the actual signatory.
The S.S. BARBERBROOK is a general cargo ship, classed by Norske Veritas, and has four cargo holds. No. 4 hold contains an upper and lower tween deck as well as a lower hold. Directly beneath the lower hold are two deep tanks, sometimes referred to as the No. 5 deep tanks, one on the port side and one on the starboard side. Each deep tank has two vent lines which terminate above the main deck, and a manhole opening into No. 4 lower hold located near the forward bulkhead. Each manhole has a steel coaming which extends several inches above the deck, and which has a hinged steel cover. The steel cover is constructed so as to be secured by eye-bolts attached to the coaming with wing nuts at the threaded end which tighten up against dogs affixed to the cover plate.
The ship's eastward voyage began with a stop in Philadelphia on April 18-20, during which time the hold was cleared of cargo and inspected by the Chief Officer and Bosun. The ship subsequently made stops at Baltimore and New York. It then proceeded to Africa where it stopped in succession at Freetown, Monrovia, Abidjan, Tema, Lagos/Apapa, Warri, Sapele, and Douala. At Douala on June 8-13 the coffee subject to this litigation was loaded in No. 4 lower hold. On June 16, at sea, the ship ballasted the deep tanks beneath No. 4 lower hold, and on June 17 at 6 A.M. water was discovered in No. 4 lower hold. The ship proceeded to Freetown and then returned to North America, discharging the coffee at New York and Norfolk.
Prior to any loading in Philadelphia, both the Chief Officer and the Bosun inspected the manhole covers to the deep tanks and found them properly and tightly secured. At Philadelphia, drums of lube oil were hand stowed on plywood dunnage in the forward end of No. 4 lower hold, covering the manhole covers to the deep tanks.
At all relevant times charterer had on board a super-cargo whose job included expediting the loading and discharging of cargo. At New York, charterer placed on board two forklift trucks which were to be used in moving cargo. Upon arrival at Freetown, the vessel embarked sixteen "Krooboys", who remained on board until the ship returned to Freetown on June 17. Owner and charterer each paid for eight Krooboys. Two Krooboys were designated as forklift operators. The Chief Officer testified that he thought the Krooboys were erratic in their operation of the machines. Forklift trucks were not used to load the coffee subject to this suit in Douala.
On the voyage in question, the only use of the No. 5 port and starboard deep tanks was to adjust the trim and stability of the ship by ballasting or deballasting as the need arose. Shortly after leaving on the outward voyage, the No. 5 deep tanks were fully ballasted. The vessel's customary method was used for fully ballasting these tanks, i.e., water pumped into them until they overflowed from the vent pipes on the main deck. This operation normally takes approximately four hours.
Prior to entering Warri, draft restrictions required deballasting of the No. 5 deep tanks. After departure from Douala, where the coffee was loaded, the order was given to ballast both deep tanks. The pumping started at 6 P.M. No soundings were taken as the tanks were being filled and the pumping was continued for about six hours, although only four were usual. The pumping was discontinued when water was observed coming from the port side deck vent. No water was observed coming from the starboard vent. Soundings taken the following morning disclosed that No. 4 lower hold was flooded to a depth of about 3 meters. The water was drained off and the ship continued to New York where a portion of the cargo in No. 4 lower hold was discharged. The ship then proceeded to Norfolk, where the remainder of the cargo in No. 4 lower hold was discharged.
Surveyors representing all parties made a joint inspection at Norfolk and observed the conditions of No. 4 lower hold. At Norfolk, the port manhole cover was tested and found to be tight. The manhole cover on the starboard side was partially open, and unquestionably this was the sole source of the water that came up into the hold from the deep tank below.
As noted above, the manhole cover was designed to be secured by eight assemblages, consisting of "dogs", or bolts, which passed through pads affixed to the cover plate and were tightened down by wing nuts. At the time of the inspection and survey at Norfolk, of the eight assemblages, the three on the forward edge of the square manhole cover were in proper condition. In two other assemblages, one on the inboard, the other on the outboard side of the manhole cover, the wing nut was missing. On the aft side of the cover, in the assemblage in the inboard corner, the pad was broken off, and in the other two assemblages, the dogs were broken or bent. It was the condition of these fastening devices that made the manhole cover non-watertight.
Shipowner presented expert testimony by a metallurgical engineer that the damage to the three aft assemblages could have been done by a heavy blow from a steel object such as a forklift blade. The expert admitted, however, that the cause of the damaged condition was entirely speculative and that the damage could have resulted from other undescribed causes as well.
It is the customary and proper practice for ship's officers or their delegates to inspect a hold prior to the loading of cargo at any port, and in that inspection reasonable care and attention require the check of a manhole cover such as the one here in question for possible damage or insufficiency of the securing devices to make the cover watertight. Should damage or insufficiency of the fastenings be found, the ship's officers would then see that it was repaired or corrected. The presence of plywood dunnage scattered on the floor of a hold is not considered in the trade to be an excuse for forgoing such an inspection. The inspecting seaman is expected in the exercise of ordinary care and prudence to have any interfering dunnage cleared away so that the inspection can be properly conducted and completed. In this case, the Chief Mate was asked at deposition: "As a matter of course, would a mate inspect the hatches, the manhole covers and the rose boxes after discharging of all cargo from the hatch?" His answer was "Yes, he does." Although the hold in question was clear of cargo at the time the coffee was to be loaded, there was no evidence that such an inspection, either subsequent to unloading the cargo previously in No. 4 lower hold or prior to loading of the coffee there, did take place by any ship's officer.
The Chief Mate was also asked, "Do you know of anyone who made an inspection of the lower hold in number four after the hold had been completely discharged at Apapa?" He answered "I don't know". He identified the mate on watch at the number four hold when the discharge was completed at Apapa as one Moratoglou, the second mate. When asked "Did the second mate ever advise you that he had inspected the bottom of number four hold?" the Chief Mate answered "No." No deposition or other testimony of second mate Moratoglou was offered in evidence. The Bosun, Mr. Svinos, was asked "After discharge of the cargo . . . did you go down into the lower hold No. 4? . . . I am referring to the period that the vessel was in Monrovia and Apapa?" He answered: "I don't go down at all".
Similarly, there was no evidence that the No. 4 lower hold had been inspected prior to the loading of the coffee in Douala. The Bosun, who described his duties, in deposition, as inter alia "to check the holds" and who testified that he had in fact checked the holds prior to the vessel's departure from the American east coast, was asked: "As I understand it, at Douala, before the coffee was loaded at Douala, you didn't [examine the hatch cover and tighten the fastening bolts as he had done on the American east coast]?" The Bosun answered "Before it got loaded, I told you that they don't pay me to go down in the bottom of the hold and they have crew boys whose job it is to do that."
There is no evidence from which to draw a credible inference that the manhole cover was deliberately hidden from the ship's officers with a sheet of plywood dunnage to keep any ship's officer or delegate from inspecting the cover, its appurtenances and water-tightness. Nor is there any evidence that the manhole was covered by ...