The opinion of the court was delivered by: MARIS
This is a suit in admiralty against the Steamship Plow City in rem for damages. The Plow City Steamship Company appeared as claimant of the vessel. From the evidence I make the following special findings of fact:
Pursuant to an oral arrangement between the libellant and the agents for the owner of the Plow City, confirmed by letter to the libellant dated October 10, 1936, the libellant on October 31, 1936 shipped and placed on board the vessel, then lying at the port of Chester, Pennsylvania, 40 carloads of pipe to be transported and delivered to itself at the Port of Houston, Texas. On the same day the master of the vessel gave the libellant a receipt for the cargo and on November 4, 1936 the agents of the owners of the vessel issued a bill of lading covering the shipment. The bill of lading contained the following clauses, inter alia:
"Neither the vessel, her owner, nor agent shall be liable for loss or damage resulting from: Act of God; perils, dangers, and accidents of the sea or other navigable waters; fire, from any cause or wheresoever occurring; barratry of master of crew; enemies, pirates, or robbers; arrest or restraint of princes, rulers, or people, or seizure under legal process; fumigation under governmental orders; riots, strikes, lockouts, or stoppage of labor; saving or attempting to save life or property at sea; inherent vice, natures defect, or change of character of the goods; insufficiency or absence of marks, numbers, address, description or insufficiency of packages; explosion, bursting of boilers, breakage of shafts, or any latent defects in hull, machinery, or appurtenances, or unseaworthiness of the vessel, whether existing at the time of shipment or at the beginning of the voyage, provided the owners shall have exercised due diligence to make the vessel seaworthy, properly manned, equipped, and supplied * * *
"If the owners shall have exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied, it is hereby agreed that in case of danger, damage or disaster resulting from faults or errors in navigation, or in the management of the vessel, or from any latent or other defects in the vessel or machinery or appurtenances, or from unseaworthiness, whether existing at the time of shipment or at the beginning of the voyage, owners shall not be liable therefor and the shippers, consignees, and/or owners of the cargo shall nevertheless pay salvage and any special charges incurred in respect of the cargo, and shall contribute with the shipowner in general average to the payment of any sacrifices, losses, or expenses of a general average nature that may be made or incurred for the common benefit or to relieve the adventure from any common peril.
"Notice of loss, damage, or delay must be given in writing to the vessel's agent within thirty (30) days after the removal of the goods from the custody of the vessel, or, in case of failure to make delivery within thirty (30) days after the goods should have been delivered: Provided That notice of apparent loss or damage must be given before the goods are removed from the custody of the vessel, and proper notation made on receipt given to the vessel for the goods shall constitute the notice herein required, written claim for loss, damage, or delay must be filed with the vessel's agent within (3) months after giving such written notice. Unless notice is given and claim filed as above provided, neither the vessel, her owner nor agent shall be liable. No suit to recover for loss, damage, delay, or failure to make delivery shall be maintained unless instituted within one year after the receipt of the goods by the carrier."
The Plow City was somewhat delayed by a strike but on November 14th she sailed. Prior to sailing the libellant did not inform the master of the vessel or its owner that it was in any urgent need of prompt delivery of the pipe or that the pipe was to be put to any special use.
At the commencement of the voyage the Plow City was seaworthy, both with respect to her hull and with respect to the loading and stowage of her cargo of pipe.
On the second, third and fourth days of the voyage the Plow City encountered heavy weather which caused her to roll considerably. On the second day while rolling heavily the lashings of the pipe in the No. 2 cargo hold gave way and the pipe shifted to port giving the ship a heavy port list. The next day the loose pipe was secured and the ship straightened by pumping water into the starboard No. 2 deep tank. On the morning of the third day of the voyage water was discovered on the port side of the bottom of No. 4 cargo hold and was pumped out.The same condition was encountered the next day. This leak was caused by a small hole in a worn section of the shell plating under the No. 4 cofferdam and by a number of loose rivets. Both the hole in the plate and the loosening of the rivets were the result of the heavy weather which the vessel had encountered.
During this heavy weather the rolling of the vessel constantly caused the intake for her main circulating pump to come out of water whereby the pump lost suction, causing it to race heavily. On the evening of the second day of the voyage the third assistant engineer, who was a new man on the ship, by mistake shut off an exhaust valve from the lubricating oil pump, which caused the pump to stop. This in turn reduced the pressure of oil lubricating the main circulating pump. This combined with the constant racing of the latter resulted on the next day in the casing of the turbine of the main circulating pump bursting. This pump supplied cold water to the main condenser and when it burst it was necessary to substitute the ballast pump for circulating water in the condenser.
After the circulating pump blew out the master conferred with the other officers and decided to put in toward Charleston for repairs. This decision was based solely upon the necessity of repairing the circulating pump. The leak in No. 4 cargo hold was not considered serious by the officers and was not a factor which entered into the determination. Using the ballast pump as a circulator the vessel was able to reach Savannah where she docked on November 18th.
When the Plow City reached Savannah her owner and libellant were at once notified of the situation. Harry Graham, the owner's marine superintendent, who had shipped on board as a seaman in order to complete the crew, immediately proceeded to make inquiries as to the parts needed to repair the circulating pump and ascertained that it would take eight weeks to get these parts from the manufacturer. He then went north to look for a secondhand pump and a few days later in Baltimore purchased one which was shipped to Savannah. The steam end of this pump was fitted into the water end of the circulating pump on the Plow City and the latter was thus repaired. These repairs were completed by December 10th.
As soon as they learned that the Plow City had put into Savannah for repairs John C. Rogers, president of the owner, and Paul J. Carey, traffic manager of the libellant, got into cummunication with each other. Carey then for the first time informed Rogers that libellant urgently needed the cargo of pipe to replenish its stock at Houston which had been greatly reduced by sales. Since at that time it appeared that the Plow City might be delayed at Savannah for at least eight weeks he requested Rogers to ascertain whether another vessel was available to carry the cargo on to Houston. In response to this request Rogers ...