Opinion
No. 300.
April 7, 1930.
Appeal from the District Court of the United States for the Southern District of New York.
Libel by S.W. Barker, as trustee in bankruptcy of the property and effects of the Southern Alberta Lumber Company, Limited, against the Moore McCormack Company, Inc. From a decree for libelant [ 36 F.2d 104], respondent appeals.
Affirmed.
For convenience, the bankruptcy of the Southern Alberta Lumber Company, Limited, will be ignored and that company called the libelant herein. On October 16, 1926, the owners of the Norwegian steamship Storviken chartered her on time to the libelant. On November 17, 1926, the libelant sub-chartered the vessel to the respondent on a time basis. Then the voyage was undertaken on which the happenings occurred that are involved in this action. Both charters contained the following clause:
"15. That in the event of the loss of time from deficiency of men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking for the purpose of examination or painting bottom, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost; and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull, machinery or equipment, the time so lost, and the cost of any extra coal consumed in consequence thereof, and all extra expenses shall be deducted from the hire."
The ship was duly delivered to the respondent at Norfolk, whence she proceeded without incident to Copenhagen with a cargo of coal. Her average speed was 195 miles per day, with an average daily coal consumption of 29 2/3 tons. From Copenhagen, she sailed in ballast for Boston on January 8, 1927. When she left she had on board about 150 tons of her old coal and 750 tons taken on at Copenhagen. The new coal was supplied by the libelant under the terms of the charter. Calculated on the basis of what she had done on her just previous east-bound trip, she had sufficient bunkers for a thirty-day voyage. On the same basis she would have reached Boston in about nineteen days. Her west-bound voyage began with nothing unusual in mileage or coal consumption, and so continued until she had been out four days, although on the third and fourth day she encountered strong head winds with a force of 7-8 on the Beaufort scale. On the fifth day her coal consumption increased about 4 tons and continued high thereafter. She met with severe weather from January 15, to January 27, with head winds of a force of 10 on all but two days, when it was 6 and 7. During this exceedingly bad weather, the ship behaved well, and, though a plate was cracked by straining and some bolts loosened on the propeller shaft, may be said to have received no disabling damage.
When about 600 miles east of St. Johns, N.F., approximately the same distance northwest of the Azores, and twice that northeast of Boston, she had consumed all but about 200 tons of her coal. After consultation with his officers, her captain then decided that he would be unable to reach St. Johns. He accordingly put about and made for the port of Fayal in the Azores for coal, where he arrived safely on February 3, with 70 tons unused. There 480 tons of new bunkers were secured, the destination changed by agreement from Boston to Norfolk, and she left for that port February 5. Her difficulties were not over however. She was again short of coal on February 17, but obtained enough at Bermuda, which lay in her course, to take her to Norfolk, where she arrived February 21, and was turned over to the libelant.
The respondent claimed an allowance for off hire, under the clause of the charter above quoted, on the ground that there had been a detention by average accident. Its claim was denied in toto by the District Court.
Burlingham, Veeder, Fearey, Clark Hupper, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for appellant.
Kirlin, Campbell, Hickox, Keating McGrann, of New York City (Charles T. Cowenhoven, Jr., and Roger B. Siddall, both of New York City, of counsel), for libelant-appellee.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
Without disparaging the attempt the libelant has made to make bad coal share with the rough weather the responsibility for the time taken to complete this voyage, for there is certainly ground for making the claim, it did come a little late. The record discloses no evidence in the ship's log that it occurred to the captain or his officers when the coal was being burned that it was poor. On the whole, it seems more probable that poor coal is now a poor excuse rather than a good reason for the time lost. We are speaking, of course, of the period before the Storviken put about and headed for Fayal. At that time, if at all, the off hire began. The delay was due, we think, to stress of weather slowing up the ship rather than to poor coal, and whether the claim for an off hire allowance is good or bad depends upon whether this was an average accident.
Apparently this term has not been used extensively in charters, and seems to have found its way into the books but rarely. It certainly has acquired no meaning in maritime law other than it has elsewhere except in so far as the word "average" may be said to color the expression and confine it to accidents which do not result in total loss. The term "free from average" in marine insurance is well known to mean that the policy covers total loss only. Coster v. Phœnix Insurance Co., 6 Fed. Cas. 611, No. 3,264; Bargett v. Orient Mutual Insurance Co., 16 N.Y. Super. Ct. (3 Bosw.) 385, 395. If this word is given the same significance here, it is akin to partial, Louisville Marine Fire Insurance Co. v. Bland, 9 Dana (39 Ky.) 143, 147, and the expression will mean an accident not resulting in the entire loss of the ship and cargo. Perhaps it is unnecessary, however, to put anything upon the meaning of the word "average" in this particular case. Whatever else may be thought, it surely is true that an accident of some kind is necessary to call into play the off hire clause on account of "average accidents." It may be urged with some plausibility that bad weather in winter on the North Atlantic is an accident in the sense that whether or not it may be encountered on any voyage is somewhat a matter of chance. Yet, in a sea notorious for its severe weather at that time of year, the parties to this charter may well be said to have chosen words ill-suited to express their idea if by "average accidents" it was intended to cast upon the libelant whatever loss in time might be occasioned by rough, though not disabling, weather on the voyage. This would be directly in conflict with the general purpose of a charter on time rather than on a voyage basis. Accident is one of those hard-worked words too well known to make definition very needful, and having too many shades of meaning to make attempted definition, apart from its particular setting, a reliable guide. The plain purpose of this charter was to give the respondent the benefit of a fast voyage and let it assume the risk of a slow one, provided always nothing happened to prevent the ship doing all it was designed to do in the face of whatever conditions were met. If the expression is construed ejusdem generis, it would have to mean something that prevented "the full working of the vessel." And we think it should be so construed. Not something preventing ground-gaining accomplishment, but some unexpected functional impairment making impossible the full use of the ship, with all the power and means of locomotion inherent in its size and construction with adequate crew and equipment, to overcome the forces of nature and make time against the wind and waves. When taken in this sense, it is obvious that there was no accident of any kind. The ship at all times did all that could have been expected of it under the adverse conditions. It broke ground at Copenhagen with an abundance of coal for reasonably to be expected consumption on the voyage to Boston. No one claims otherwise if the coal was good. While we think it was not shown to have been bad coal, the result would be the same if in fact it were bad; for the respondent is in no position to take advantage of the poor quality of coal which it supplied. Had the parties intended to have the libelant bear all loss of time caused by unpropitious weather, it would have been easy enough to have said so in plain language. Perhaps it would have been still easier to have done this by putting the charter on a voyage basis instead of on time.
Decree affirmed.