
    VACCAREZZO v. 567,000 GALLONS OF MOLASSES (MUNSON S. S. LINE, Claimant).
    (Circuit Court of Appeals, Second Circuit.
    April 14, 1908.)
    
    No. 231.
    Shipping — Suit fob Chaktek Hike--Defense of Refusal to Load Dull Cab-GOES.
    Evidence considered, and Jichi not to sustain the defense of a charterer to a suit for charter hire, admittedly due under a time charter, based on the claim that the master refused to load full cargoes.
    [Ed. Note. — Deductions and offsets from charter hire of vessel, see note to Tweodie Trading Co. v. George D. Emery Co., 84 C. C. A. 254.]
    Appeal from the District Court of the United States for the Eastern District of New York.
    For opinion of court below, see 149 Fed. 792.
    Wheeler, Cortis & Haight, Clarence Bishop Smith, and C. S. Haight, for appellants.
    Ullo, Ruebsamen & Yuzzolino and Lorenzo Ullo, for appellee.
    Before LACOMBE, COXE, and NOYES, Circuit Judges.
   PER CURIAM.

The libel was brought to recover a balance due of charter hire of the steamship Margaretha. The amount was not disputed, but claimant counterclaimed for damages because of an alleged refusal of the master to load full cargoes during the voyages made between January 1 and August 13, 1905. The District Judge made some allowance for the last two voyages, but as to the earlier ones reached the conclusion that claimant was concluded in each instance by an account stated. The libelant did not appeal, so the propriety of an allowance for the last two voyages is not presented for review here.

We have reached the conclusion that the decree should be affirmed, not upon the points of law which have been presented and argued, as to which we express no opinion, but because we are of the opinion that the claimant has not established his defense. The vessel was originally chartered in January, 1903, under a charter party which contained the following clause:

“(6) That the whole reach, burthen, and passenger accommodation of the ship (not being more than she can reasonably stow and carry) shall be at the charterers’ disposal, reserving only proper and sufficient space for ship’s officers and crew, tackle, apparel, furniture, provisions, stores, and fuel.”

A renewal charter was entered into on July 4-, 1903, which was subsequently further renewed. Under these successive charters 43 voyages were made. When originally chartered the steamship, an English-built vessel, was operating under the German flag. She was sold to' her present owner toward the end of 1904, subject to claimant’s charter; and upon sale her register was changed and she took the Italian flag. Under her new control the later voyages, No. 33 to No. 43, inclusive, were made. It is of these voyages that complaint is made. The contention is that while in charge of her two successive German captains she carried full cargoes and gave entire satisfaction, but as soon as the Italian captain took command be insisted on so loading the vessel as not to submerge her “plimsoll mark,” although, being merely an English mark, it was in no way binding on the vessel when under the Italian flag; that the new captain was over-cautious, so timid that he refused to load enough molasses to make up a full cargo; and that in consequence there was a breach of the charter, with resulting damage.

It may be premised that the mere circumstance that one captain habitually carries more cargo in a ship than a subsequent captain of the same ship does is not determinative of the question. Possibly the second captain may be over-cautious. Possibly, also, the first captain may have been over-rash. The matter of safe navigation of a vessel is so peculiarly one within the knowledge of her captain that very clear and convincing evidence is required to warrant a court in holding that his judgment is at fault. As to the “plimsoll mark” itself there is a conflict of evidence. The captain says it was 19 feet and 11 inches from the keel of the ship, and a witness for the claimant that those figures on the plan of the ship indicate the depth of the hold. A witness for claimant testified that the captain insisted on refusing cargo when the water had reached the “plimsoll mark.” The captain testified that the Italian government had nothing to do with that mark, that there was no mark upon which he was required to load by the government, and that the ship when loaded draws about 20 feet 10 inches, or 2 or 3 inches, more or less, depending on the season, summer or winter.

The claimant put in testimony showing- the quantity of molasses carried on each voyage. As she was a tank steamer, loaded out of a shore tank, these figures may be accepted as accurate. In the calculations that are presented and relied upon, however, the gallons are turned into tons, and the tons are manifestly an estimate. The witness testified that the weight of a gallon of molasses varies with density and temperature. “If a gallon of molasses weighs 11.60 pounds, it might at another time weigh 11.65 or 11.70; sometimes the same difference on the other side.” The rule he employed for turning gallons into tons was to “divide by 200”; but, whether the ton be long or short, some other divisor than 200 would seem to be required if a gallon weighs from 11.50 to 11.70 pounds. The tons of fuel and stores at inception of each voyage were also “estimated.” The resulting tabulations are indicated below.

Examination of this table indicates how unreliable these estimates are. For example, on the tenth vor^age, when the vessel was loaded to a draft pf 21 feet 3% inches she carried 27 tons less than she did on the eighth voyage, when loaded to a draft of 21 feet.

Comparison of the drafts shown in this table with those on the first 10 voyages, in which the vessel was commanded by the German captain, whose conduct meets with no criticism from the charterer, shows how unpersuasive is the testimony that; the Italian captain was over-cautious, and that through his timidity she was not loaded as deeply as she had been before. Upon the record we are not satisfied that the defense was sufficiently made out to defeat the libelant’s admitted claim.

The decree is affirmed, with interest and costs.  