Burma, 187 F. 94 (2d Cir. 1911)

WARD, Circuit Judge.

The first cause of action in the libel was for deceit, charging the owners with making the following representation in the charter party knowing it to be false:

[1] The District Judge, without passing upon its truth or falsity, found that the owners made the representation in entire good faith. At the trial the charterers asked leave to amend the libel by adding an article charging that this representation was a warranty. This was refused, on the ground that it was too late to introduce a new cause of action after a large volume of testimony had been taken upon the cause of action for deceit originally set up. We concur with the District Judge upon both points.

[2] The second cause of action is for a breach of the following covenant in the charter party:

The answer says on this subject:

Welsh' coal. It was of a highly gaseous and flaming nature, it was dirty and impure, and it formed heavy clinker in the furnaces. Its use in the furnaces resulted in fire in the uptakes, funnel, and smoke boxes. It buckled the smoke box doors, and caused them to leak, and interfered with the proper working of the system of forced draft. The use of the coal also subjected the furnaces to extraordinary and improper strain, and resulted in an impairment of their condition to such an extent that on the arrival of the vessel at New York, on the return from the west coast of South America, where she had proceeded under orders from the libelants, the surveyor to the British corporation in which the vessel was classed required that the furnaces should be entirely renewed to enable the vessel to retain her class. In consequence thereof, the owners of the vessel were obliged to replace the furnaces and incurred other expenses in the sum of approximately $25,000. This result was wholly caused by, and directly due to, the wrongful and improper action on the part of the libelants in supplying to the vessel coal of bad and improper quality, in violation of their undertaking to furnish to the vessel coal of fit and proper quality.”

The owners filed a cross-libel against the charterers to recover damages to furnaces, uptakes, smoke box, and funnel so caused. The coal complained of was Coronel coal, found upon the west coast, and commonly used by steamers trading there. The owners understood that such coal would be supplied there by the charterers. Upon the return of the steamer to New York after the first voyage her furnaces were condemned and the owners compelled to put in new ones.

The District Judge was of opinion that the efficiency of the Burma’s machinery was impaired, and her furnaces, uptakes, smoke box, and funnel injured, because the engine department did not know how to use Coronel coal which is highly gaseous and inflammable. But he thought that the provision of the charter party above quoted did not cover such negligence, and that the charterers’ only remedy was under clause 10, which reads:

Accordingly he dismissed both libel and cross-libel.

We cannot agree to this construction of the charter party. If the machinery had been destroyed and the purpose of the vo)fage frustrated by the negligence of the engineer, it could hardly be said that the owners’ covenant to keep her in an efficient state while on the voyage had ’been fulfilled. The faculty of demanding a change of appointments is an additional privilege to the charterers, but no remedy whatever for the consequences of negligence of the owners’ servants occurring at sea. The right of charterers to recover in such cases is recognized in Omoa, etc., Co. v. Huntley, 2 C. P. D. 464, and Weir v. Union Steamship Co. [1900] A. C. 525.

[3] Neither can we agree with the owners’ contention that, because the charterers were bound to supply the coals, the owners’ servants in the use of them were acting as the servants of the charterers. Such a conclusion is against all reason. A master is one who can say to this man, “Go,” and he goeth, and to another “Come,” and he cometh, and to another, “Do this,” and he doeth it; but the charterers had no control whatever over the engineers or firemen. Engineers are as much

the servants of the owners as the master is in the navigation of the vessel.

The owners further contend that they are exempted from liability by the seventeenth article of the charter:

This clause presents, we must suppose advisedly, a sharp contrast between “steam navigation” and “navigation.” In the former “dangers and accidents” are excepted which, in the absence of express provision to the contrary, cannot be held to include the results of negligence. If the provision had been, as in the case of navigation, “errors of steam navigation,” the conclusion might be different. Our decision in Clyde Steamship Co. v. West India Steamship Co., 169 Fed. 275, 94 C. C. A. 551, contains nothing inconsistent with these views.

The decision, in McFadden v. Blue Star Steamship Co. [1905] 1 King’s Bench, 697, to which we are referred by the proctor for the owners, is not applicable. The covenant in that case was as to the condition of the vessel at the time of loading, and was not continuous, as is the one now under consideration.

[4] .We are not at liberty to infer, from the mere fact that the steamer failed to make as good time as she usually did, or as the charter stated she could make, that her boilers or machinery were inefficient. There were other causes, as, for example, the extreme foulness of her bottom, head winds, currents, etc., which might account for it. The use of Coronel coal, by men who did not know how to handle it, probably did injure the furnaces. But the question remains, did the injury to the furnaces impair the Burma’s steaming capacity? The chief engineer testifies that the boilers were able to maintain the steam pressure of 170 pounds, usually carried, and an examination of the engine room logs shows that on the return trip between Montevideo and Baltimore, although the Burma was making only between 7 and 8 knots, the boilers carried that pressure, giving to the H. P. cylinder 170 pounds, to the Int. 44 pounds, and to the L. P. 9 pounds. We reach the same conclusion upon this cause of action as the District Judge, but upon a different understanding of the facts.

Decree affirmed, with interest and costs.