The opinion of the court was delivered by: KIRKPATRICK
This is an action commenced by way of cross-libel by the owner of the Italian steamship Albisola for the recovery of a general average contribution in the sum of $46,789.60, arising from losses, expenses, and sacrifices incurred as a result of the stranding of the Albisola while proceeding out of St. Georges Harbor, Bermuda. The original libel was filed by the cargo owner for damage to the cargo. Proceedings under it have been stayed for noncompliance with an order requiring security to be entered. The cargo owner filed an answer to the cross-libel, setting up first, initial unseaworthiness of the ship -- a defense not pressed -- and, second, negligent navigation causing the stranding. Upon this issue testimony was taken.
By amendment, allowed by the court at the hearing, after notice, the cross-libelant introduced, as a further cause of action, that, by assenting to an adjustment by Johnson and Higgins, average adjusters of New York, the cross-respondent had bound itself to pay the amount of the average settlement, regardless of any question of legal liability for the original average contribution.
1. The Albisola is a freighter of 5,240 tons gross, and dead weight capacity of 8,200 tons. Her length is 366 feet and her beam 50 feet 6 inches. Her maximum speed is approximately 8 knots.
2. On December 27, 1927, the Albisola lay in the harbor of St. Georges, having been obliged to put in for additional coal in the course of a voyage from Lisbon, Portugal, to New York. She was laden to her capacity with a cargo of cork wood, the total weight of which was some 1,500 tons. Consequently, although she had a molded depth of 31 feet 6 inches she lay high in the water, the distance from the water line to the main deck being 17 feet at the bow and 14 feet 6 inches at the stern. In addition to the cargo in the hull she carried some 2,500 bales of cork on deck forward which were stowed to a heighth of some 6 feet above the bulwarks or a total of possibly 10 feet in all above the deck.
3. After bunkering, the Albisola left her point of anchorage at 2 o'clock in the afternoon of December 28th. The weather was clear but cloudy, with good visibility. She was under the direction of a competent Bermuda pilot who is now dead.
4. The course to deep water lay due east through what is known as the Town Cut, a very narrow and almost perfectly straight dredged channel a little more than a mile in length varying in width from 90 feet at its narrowest to something over 220. About halfway out it passes between the point of St. Georges Island on the north, and two small, rocky islands (Horseshoe Island and Higgs Island) on the south. Between the latter island and St. Georges it is about 160 feet wide. Outside of St. Georges Island to the north of the channel, there are numerous rocks, reefs, and shallows. At several places the depth is as little as 2 feet. There are almost always breakers over these shallow spots.
Comment: The foregoing facts are all undisputed except possibly the finding as to the speed of the Albisola.Upon this point I accept the testimony of the witness Bergsten, who pointed out that with her type of boilers she would not have had time to gather her maximum speed.
6. The Albisola was driven from her course by the force of a northeast wind, blowing at a rate of somewhat more than 20 miles per hour which first struck her as her bow came out beyond the point of St. Georges Island.
Comment: The foregoing finding goes to the heart of the whole controversy. The issue was, wind or current. If it was the wind which caused the vessel to strand, then it was negligent for her, light-laden as she was, high in the water and with an additional deck load forward, to attempt to leave the harbor under conditions which if ascertained would have warned of danger. If, on the other hand, the efficient cause was a sudden and powerful current, then there was no fault, because all agree that such a current, if it existed, would be extraordinary, unprecedented, and unforseeable.
The only witnesses of what happened were the master and a young colored man named Smith, who had come out with the pilot and was in a small rowboat or gig which was being towed by the Albisola on her port side about midship and which was being kept about 4 feet away from her by means of a rudder. The master's testimony was that, while in the narrowest part of the channel, he noticed on the port bow a current and at the same time heard the pilot shout, "Look, look, extra current"; that as the bow came out of the sheltered zone, the current and the wind sheered it so that the ship struck Higgs Island in spite of the rudder fully starboard helm; that, having cleared Higgs Island, the current, which was becoming stronger, again forced the ship from her course; and that the final stranding was caused by the current, which, without the wind, would alone have been sufficient. Smith testified that a wind was encountered from the northeast, the approximate strength he did not give, but it was stronger than the wind in St. Georges ...