its duty to transship the pipe at its own expense. Having failed to do so the libellant claims to be entitled to recover the cost of such transshipment which it paid.
The answer to this contention is that the claimant was not guilty of negligence in tendering an unseaworthy vessel for the reason that the Plow City was in fact seaworthy, as I have found. Furthermore the principal basis for the claim of unseaworthiness, the leak in the cofferdam under the No. 4 cargo hold, was not the reason for the vessel putting into Savannah and, therefore, was in no sense a contributing cause of the delay of which the libellant complains. Consequently the latter condition, even if it had existed at the beginning of the voyage, which I have found it did not, would not support the libellant's claim in this case. May v. Hamburg, etc., Aktienge-sellschaft, 290 U.S. 333, 54 S. Ct. 162, 78 L. Ed. 348.
Nor was the delay due to any other negligence on the part of the owner of the vessel. I have found as a fact that the breakdown of the main circulating pump, which was the sole reason for putting into Savannah for repairs, was due to the strain placed upon it by the heavy weather encountered by the vessel and the faulty operation of an oil pump by the third assistant engineer. The bill of lading provided that "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, * * * owners shall not be liable therefor * * *." This provision is in conformity with section 3 of the Harter Act (46 U.S.C. § 192, 46 U.S.C.A. § 192). There is no contention that the owner failed to exercise due diligence to properly man, equip and supply the vessel. It follows that the present suit cannot be sustained upon the theory of negligence on the part of the owner.
The libellant urges, however, as an alternative theory of recovery, that even though the vessel was seaworthy and her owner free from negligence the master of the vessel was still obligated to forward the cargo if repairs to the vessel could not be completed within a reasonable time. In that event it is contended the vessel would be responsible to pay the forwarding charges up to $7,809.02, the amount of freight which it had received in advance from the libellant, and could only charge the cargo with the excess of the transshipment charges over that amount. The libellant accordingly contends that since, as it alleges, the repairs did delay the Plow City an unreasonable length of time and since the master of the vessel failed to forward the cargo, it, having done so at an expense of more than $7,809.02, is entitled in any event to recover that amount in this suit.
It is undoubtedly the duty of the master of a vessel which is disabled in the course of the voyage and compelled to seek a port of refuge for repairs, to transship the cargo by another vessel if it is available and if the repairs cannot be completed within a reasonable time, The Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772, and in that event if his freight has been paid in advance he is entitled to charge the cargo with the excess, if any, of the freight payable to the forwarding vessel over the freight already received by him. Hugg, Adm'r, v. Baltimore & Cuba Smelting & Mining Co., 35 Md. 414, 6 Am.Rep. 425. However, when a ship becomes unfit for navigation from a cause which does not involve a breach of duty on the part of the carrier and it is necessary to interrupt the voyage for the purpose of repairs the master may detain the cargo until such repairs shall have been effected, if it is possible to complete them within a reasonable time. The Strathdon, D.C., 89 F. 374.
If the ship does detain the cargo while repairs are being made and the completion of the repairs results in an unreasonable delay of the voyage, the vessel will be liable to the shipper for damages resulting from the decrease in the value of the cargo, during the period of delay, if the vessel was unseaworthy when the boyage began. The Caledonia, 157 U.S. 124, 15 S. Ct. 537, 39 L. Ed. 644; The Malcolm Baxter, Jr., 277 U.S. 323, 48 S. Ct. 516, 72 L. Ed. 901. This would probably also be so even if the vessel was seaworthy and the delay was due to an accident of the sea or mismanagement for which the owner was not responsible under the Harter Act, 46 U.S.C.A. § 190 et seq. I need not determine this, however, since in this case the libellant itself voluntarily arranged for and carried through the transshipment of the cargo. It did this because of its own urgent need for the pipe, which special need had not been communicated to the owner or master of the vessel before the voyage began.
The evidence was uncontradicted that the cargo did not decrease in value during the delay but on the contrary had actually increased at the time when the Plow City completed her voyage. The delay, therefore, did not result in damage to the libellant for which the vessel would be liable under the rule above stated. The Caledonia, supra. The transshipment charges voluntarily paid by the libellant were in the nature of special damages for which the Plow City was not responsible in the absence of a special agreement, Earn Line S.S. Co. v. Manati Sugar Co., 2 Cir., 269 F. 774; American Steel Co. of Cuba v. Transmarine Corporation, D.C., 36 F.2d 246, or unless advance notice had been given of the special urgency of delivery by reason of the special use to which the cargo was to be put. United States Shipping Board E.F. Corp. v. Florida G. & E. Co., 5 Cir., 20 F.2d 583.
Furthermore I am not prepared to say that the delay of twenty-two days in Savannah and twenty days in Jacksonville did amount to an unreasonable delay which would have made it the duty of the master to transship the goods. As i have indicated, this question need not be decided, however, since the libellant voluntarily for reasons deemed by it sufficient took delivery of the goods at Savannah and forwarded them to their destination at its own expense. In my opinion the libellant's voluntary action in so doing bars it from recovering from the vessel the amount expended for the transshipment especially in the absence of evidence that the cargo would have depreciated in value if it had remained on the Plow City and had not been delivered until January 5th, when she reached Galveston. What has already been said makes it unnecessary to consider the owner's contention that the libellant failed to give notice of its damage and make claim therefor in the manner and within the time stipulated in the bill of lading.
Since the interruption of the voyage of the Plow City was not caused by the unseaworthiness of the vessel or the negligence of her owner the losses resulting from the accident to the circulating pump and the consequent delay of the voyage were the proper subject of general average. Before the libellant engaged the Suwied to transship the cargo it was agreed by all the parties involved that in that event the transshipment charges should be considered as substituted charges in general average. Average adjusters appointed by the parties have stated a balance of $2,864.13 in favor of the cargo and on December 4, 1937 that sum was tendered to the libellant. It was, however, returned by the libellant to the average adjusters to be held in trust for it pending the outcome of this suit.
The contention of the libellant is that more than $2,864.13 is due it in general average and it, therefore, asks, as a third alternative, for a decree in its favor for the amount due it upon a proper general average adjustment. It may have such a decree in this suit. Dupont de Nemours & Co. v. Vance et al., 19 How. 162, 15 L. Ed. 584. The decree, however, should provide that the costs of suit shall be borne by the libellant unless the amount finally awarded to it is greater than the amount heretofore tendered with interest.
I accordingly reach the following conclusions of law:
The libellant is not entitled to recover from the Plow City its expenses incurred in transshipping its cargo of pipe from Savannah to Houston nor is it entitled to recover from the Plow City the amount of the freight paid it in advance.
The libellant is entitled to claim as substituted charges in general average the transshipment charges incurred by it and is entitled to a decree in its favor for the balance, if any, found to be due it in general average.
The cause should be referred to a commissioner to determine the amount, if any, due the libellant in general average.
A decree may be entered accordingly.
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