The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
The S. S. RICHWOOD, loaded with government cargo, left Oakland, California on June 10, 1969 bound for Da Nang, South Vietnam. During the voyage, her master called for tug assistance and she was towed approximately 1,000 miles to Yokohama, Japan. Plaintiff's assignor, Richwood Steamship Company ("Richwood"), the owner of the vessel, declared a general average based on the incident. A general and particular average statement was issued by the adjuster assessing the government's proportion of the general average at $35,717.27. The amount of the salvage award was submitted to arbitration, and the arbitrators determined that the government was liable for $85,000. The government has paid its share of the arbitration award but refuses to contribute to the general average.
In this action, tried to the court without a jury, plaintiff seeks contribution to the general average from the government, as owner of the cargo.
In June 1968, the government, through the Military Sea Transportation Service, contracted for ocean transportation with Columbia Steamship Company ("Columbia"). The contract was renewed and was in force at the time of the incident. Richwood chartered the S. S. RICHWOOD to Columbia in February 1969, and the charter was in effect during the voyage in question. In October 1968, Richwood assigned to plaintiff, among other things, all future claims for general average. Plaintiff sues as Richwood's assignee.
Plaintiff contends that the vessel was in peril, that a general average event did occur and that the government is liable for its share. The government contends that a general average event did not occur since the vessel was never in peril.
Prior to departing Oakland, California, the S. S. RICHWOOD was loaded with cargo, including deck cargo, and the government supplied the vessel with a cargo plan. At that time, Richwood's port captain, Hopkins; the vessel's master, Morrissey; and the chief mate, Horne, calculated the vessel's metacentric height ("G.M.").
There is a dispute as to which cargo plan was used in the G.M. calculations. Plaintiff contends that the calculations were based upon the cargo plan supplied by the government. The government, however, contends that the calculations were not based upon its cargo plan but upon information supplied by Columbia. In any event, the G.M. was calculated by Captain Morrissey, Chief Mate Horne, and Port Captain Hopkins as 2.0 feet. Columbia also calculated the vessel's G.M. and arrived at a figure of 2.9 feet. It appears that these calculations were not corrected for free surface.
It is undisputed that, as the vessel was preparing to leave the dock, she was listing about 3 degrees or 4 degrees to starboard. Captain Morrissey, Chief Mate Horne, and Port Captain Hopkins attributed this list to unevenly distributed weights and sailed despite the list. By the time the S. S. RICHWOOD reached open sea, the list had increased to 7 degrees; nevertheless, the voyage was continued.
En route to Vietnam, the vessel continued to list and alternately flopped from port to starboard, listing on each side as she did so. On June 18, 1969, the weather began to worsen and so did the list. The list became as bad as 16 degrees and the vessel continued to flop. On June 24, 1969, the vessel's engines were stopped after the chief engineer advised Captain Morrissey that the boilers had been rendered inoperable by the flopping of the vessel, and she was towed about 1,000 miles to Yokohama, Japan.
Upon arrival in Yokohama, 165 tons of deck cargo were removed from the vessel to decrease her list and draft so as to permit entry into a shipyard. Once in the shipyard, deadweight surveys, G.M. calculations, and an inclining experiment were conducted, all of which indicated that the vessel, as she was fully loaded, was unstable, having a negative G.M.
The S. S. RICHWOOD's boilers were examined in the shipyard, and it was determined that they suffered only minor damage and that the vessel was capable of continuing the voyage. After minor repairs, the vessel continued the voyage to Da Nang without incident, absent 165 tons of deck cargo discharged at Yokohama.
It is true that "there must be fair reason to regard a vessel in peril in order to require a contribution in general average."
To be in peril, however, danger need not be immediately impending but can be distant or unlikely as long as it is real and substantial.
In such a case, an expenditure in good faith and in the common interest is justified.
The S. S. RICHWOOD was without power in the Pacific Ocean, flopping from side to side to lists as great as 16 degrees. It was the judgment of the chief engineer that power could not be restored. The captain, acting in good faith and relying upon that advice, justifiably concluded that the vessel was in danger and decisively called for a tow to remove the vessel from this perilous situation. It is not for us, situated far from the dangers of the sea, to second-guess this decision. The captain acted prudently and no further harm befell the vessel or her cargo.
It is of no moment that the engines, upon inspection in a safe port, were judged capable of simple repair or that the engineer may have mishandled the situation. The vessel's captain acted upon the information available to him at the time, and it is not for us to hold, with the wisdom of flawless hindsight, that he should have waited for the situation to worsen, for the list to increase, or for the weather to deteriorate before considering the vessel in peril. Such a holding would sanction putting lives in imminent danger. Moreover, had the captain waited for the situation to worsen, it may have been too late. The difficulty of attaching tow lines to a listing vessel ...