Benjamin N. Cardozo

“ The Isis, a vessel of about 7,000 tons, sailed from loading ports on the Pacific Coast with cargo destined for Bremen, Hamburg and Antwerp. She was then seaworthy in hull and gear, and fitted in all respects for the intended voyage. In the Weser river, not far from Bremen, Germany, her first port of discharge, she stranded by reason of negligent navigation with damage to her rudder stock and also to the rudder blade. Aided by tugs, she continued up the river to Bremen, disclosing, as she moved, a tendency to sheer to starboard. ”

“ An owner intervening in such circumstances must be diligent in inspection or forfeit his immunity. Negligence at such a time is not the fault of servants employed to take the owner's place for the period of a voyage. It is the fault of the owner personally, exercising his own judgment to determine whether the voyage shall go on. The Waalhaven (C.C.A.) 36 F. (2d) 706, 709.
2. Due diligence being necessary to make the ship seaworthy at Bremen as well as at the Pacific ports, the second question to be determined is whether due diligence was used. ”

“ This is far from saying that the risk to the cargo is not appreciably increased if the rudder is out of commission and so incapable of giving aid when an emergency arises. There is no need to go beyond the pages of this record for proof that this is so. Witnesses for the respondent tell us that a vessel with her rudder lashed may be towed without risk if the speed of the tugs is slow, less than seven kilometers an hour. They admit that useless rudder becomes a source of danger if the speed of the tugs is higher, seven kilometers or more. ”

“ They do not include risks that would have been avoided or diminished if the vessel had gone out with her equipment staunch and sound. A carrier who chooses for his own purposes to send out a crippled ship with needless enlargement of the perils of navigation will not receive exemption at the cost of the owners of the cargo if the perils thus enlarged have brought the ship upon the sands. 'When the owner accepts cargo in an unseaworthy ship, though the defect be such as may be neutralized by care, he imposes on the shipper an added risk ”

“ Little can be added on this point to what has been said so well by Learned Hand, J., in a case already cited. The Elkton, supra. The barrier of the statute would be sufficient, if it stood alone, to overcome the claim of privilege. ”