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889. former was authorized by Section 2 of the Harter Act and was, consequently, valid. A careful examination of the evidence, however, has convinced us that the proximate cause of the stranding of the Willdomino, from which libellants' original loss resulted, was not unseaworthiness of the ship, but that if the stranding of the vessel resulted from fault such fault lay in negligent navigation or management as to which the claimant can here derive no relief from the further stipulation in the bill of lading, in that in so far as that stipulation may be in conflict with the third section of the Harter Act it is obviously null and void and in so far as it is co-extensive with or narrower than the Harter Act it is useless, as the third section of the Harter Act is self-executing. Hence, claimant's exemption from liability for loss occasioned by negligent navigation or management of the vessel will be considered in connection with claimant's second affirmative defense in which the third section of the Harter Act is relied upon.

The underlying principles of law applicable to the second affirmative defense have already been considered. The issues of fact arising with respect to that defense are (a) was the Willdomino in all respects seaworthy and properly manned, equipped and supplied ; if not (b) had the claimant exercised due diligence to make her if the answer to (b) is nay, then (c) did the original damage to libellants' merchandise result from faults or errors in navigation or in the management of the vessel.

The only respect in which the libellants contend that the claimant has failed to establish that the Willdomino was in all respects seaworthy and properly manned, equipped and supplied is in the matter of sufficiency of fuel. The time at which the ship must have been

. seaworthy and properly equipped and supplied or due diligence have been exercised to make her so was at the beginning of her voyage. The Wildcroft, 201 U. S. 378, 388; Int. Nav. Co. vs. Far & Bailey Mfg.Co., 181 U. S. 218, 26. The voyage from Messina to New York was either an unbroken voyage or it was a voyage divided into stages. If the former assumption is the correct one due diligence must have been exercised to have had on board the vessel at the beginning of the voyage a supply of fuel adequate and proper to complete the whole voyage. If, however, the second assumption is the correct one like diligence must have been exercised to have had on board at the beginning of each stage of the voyage a supply of fuel adequate and proper to complete the stage of the voyage entered upon. Thin vs.

SO;

1924 A. M. C. Richards & Co. (1892), 2 Q. B. 141, 144; The Vortigern (1899), Prob. 140. The failure to exercise the proper diligence in this respect at the begnining of any stage, whether the damage or loss to cargo resulting from faults or errors in navigation or management of the vessel occurred during that stage or not (see The Ethel, Fed. Cas. No. 4540), would deprive the owner of the exemption conditionally provided by Sec. 3 of the Harter Act for that section is not satisfied by anything less than due diligence to make the vessel seaworthy and properly supplied and equipped for the voyage and so for each and every stage of the voyage contemplated by the parties and specified in the bill of lading.

Did the claimant meet these requirements or either of them? The Willdomino left Messina with only 569 tons of coal. That was not sufficient under any circumstances to carry her from Messina to New York. At Gibraltar, a customary coaling port for vessels bound from Mediterranean ports to New York and for which port the vessel sailed from Messina, 400 tons were taken on board. She left Gibraltar for Lisbon with 756 tons in her bunkers. That amount was unquestionably adequate for that stage of the voyage. From Lisbon she cleared direct for New York with but 651 tons. We think this was inadequate. Lisbon is 2,905 miles distant from New York. On the previous eastward voyage from Norfolk to Marseilles, heavily laden, but sailing with the Gulf Stream, and in better than average weather, the daily consumption of coal exceeded, slightly, 42 tons while the average speed was 734 miles per hour. The Gulf Stream added about one-half knot per hour on the eastbound voyage and would lessen to an equal extent the speed on the west bound voyage. This would make the estimated average speed on the voyage from Lisbon to New York 634 miles per hour, but the ship was not so heavily laden. The claimant, however, produced some oral'evidence that the average speed for the last three preceding voyages had been 912 to 934 knots per hour with a daily coal consumption of 42 to 43 tons. This was shown to be based on an average speed of 9.1 knots for the preceding voyage from Norfolk to Marseilles while the log books for that voyage, which were in evidence, showed that the average speed was only 734 miles. The claimant refused to produce the log books for the two preceding voyages. These circumstances left the oral testimony wholly unable to withstand either the inference expressed by the maxim falsus in uno falsus in omnibus or the presumption that the suppressed log

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books, if produced, would have been unfavorable to claimant's case. Kirby vs. Tallmadge, 160 U. S. 379. The Bolton Castle, 250 Fed. 403. Consequently the testimony fixing an average for the three preceding voyages must be ignored. But at Lisbon the vessel had data other than the average speed of the preceding voyage, less the Gulf Stream differential, upon which to estimate the average speed to New York. She had come from Messina to Gibraltar at an average speed of 8.865 miles per hour and from Gibraltar to Lisbon at 7.35 miles thus making the average speed from Messina to Lisbon 8.49 miles. But before the last figure could be used as a basis for estimating the amount of coal necessary to make the ship seaworthy upon leaving Lisbon on a voyage to New York one-half mile would have to be deducted on account of the Gulf Stream. Confronted with the average of 734 miles for the preceding voyage which, owing to the Gulf Stream differential, he could not reasonably hope to exceed even with a more lightly laden vessel and confronted with the fact that an average of but 7.35 miles had been made from Gibralter to Lisbon an estimate for fuel based upon an expected speed exceeding 734 miles per hour would not have been justified. That the average speed actually made during the five days intervening between the departure of the vessel from Lisbon and the accident to her machinery was only 7.39 miles is an interesting fact but it was neither available to the vessel at Lisbon nor needed to indicate the probable average speed on the voyage to New York. At a speed of 734 miles it would take 15.618 days for the voyage with a daily coal consumption of at least 42 tons or an aggregate of 656 tons. Yet she had not that amount in her bunkers when she left Lisbon. Had a speed of 8 miles per hour been used as a basis for the calculations 635 tons would have been required. The margin of safety between that and the 651 tons with which she left Lisbon was negligible. To be reasonably fit to make, a voyage a ship must have a reasonable margin of safety in her supply of fuel. Experience, as disclosed by the testimony, has shown that for vessels crossing the North Atlantic the proper margin of safety is 20% to 25% more than that reasonably expected to be used under normal conditions. It is customary for ships beginning such voyage to carry a fuel supply which provides that margin of safety. Hence, a ship setting out upon such voyage with substantially less than that amount of fuel is, at least in so far as the third section of the Harter Act is concerned, neither seaworthy nor properly equipped 1924 A. M. C. and supplied. Upon breaking ground at Lisbon the Willdomino neither had nor approached in its fuel supply the usual and customary margin of safety. Consequently, she was not reasonably fit to carry her cargo throughout the stage of the voyage she then entered upon and was not seaworthy. Int. Nav. Co. vs. Farr & Bailey Mfg. Co., 181 U. S. 218. It is true that a printed provision of the bill of lading gave to the vessel the liberty “ to call at intermediate ports or any port or ports in or out of the customary route in any order to receive and discharge coal ” and that another reads thus:

“ Eighth. The ship has liberty of filling up and/or bunkering at any port or ports in or out of the way."

These provisions were modified by the following written amendment:

“ Filling up only in ports on the way westwards of [to] New York.”

The ship's original liberty of calling at “ any port or ports in or out of the customary route” to receive coal or of "bunkering at any port or ports in or out of the way was not affected by the amendment. But we think that neither the bunkering clause nor the fact that there were ports at which she might have called to obtain fuel affects the question of her seaworthiness for the voyage she entered upon on leaving Lisbon. The test of seaworthiness is made with respect to the voyage on which a vessel sets out, 24 R. C. L. 1328, and, as we have seen, in contemplation of the whole of that voyage. Every voyage must have a terminus a quo and a terminus ad quem. Marsh. Ins. b. 1, c. 7, s. 1-5. This principle is equally true whether it be considered with respect to insurance or to undertakings between shipowner and shipper. See The Caledonia, 157 U. S. 124, 131. That the terminus a quo of the voyage in question was Lisbon is obvious. That the terminus ad quem was New York cannot be made clearer than by quoting from claimant's brief, page 44, where it is said: “She cleared for New York and both logs indicate that the voyage was from Lisbon to New York." There is no evidence that there is a port at which it is customary and usual for vessels on a voyage from Lisbon to New York to call for coal. The provisions in the bill of lading authorizing the vessel " to call at intermediate ports or any port or ports in or out of the customary route in any order to receive and discharge coal ” and to bunker “at any port or ports in or out of the way” did not release the claimant from its

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duty to exercise due diligence in making the ship seaworthy in all respects for the definite voyage upon which she sailed. Hurlbut vs. Turnure, 76 Fed. 587, 590-591, and as affirmed (C. C. A. 2) 81 Fed. 208. We think that notwithstanding the provisions in the bill of lading the Willdomino was unseaworthy upon leaving Lisbon.

When five days out from Lisbon an accident to the machinery, not attributable as we see it to any lack of care or diligence, made it necessary to blank off the high pressure turbine and, propelled by the low pressure turbine, to put into Ponta Delgada in the Azores for repairs. That port was not equipped to make the needed repairs and it was decided to complete the voyage on the low pressure turbine alone. Two hundred and fifty tons of coal were taken aboard and the vessel set out with an aggregate of 629 tons. It was anticipated by the master and chief engineer that she would make 612 knots per hour and consume 50 tons of fuel per day. The distance from Ponta Delgada to New York is 2,290 miles. At the estimated speed it would take 1423 days to complete the voyage and without any allowance for a margin of safety 733 tons of fuel. Five or six days out of Ponta Delgada, it being then manifest that the ship did not have enough coal to take her into New York, her course was changed towards North Sydney where she arrived with 62 tons of coal on board. Her average speed had been 614 miles per hour and her daily coal consumption upwards of 49 tons. The claimant asserts that the insufficiency of the fuel to reach New York was due to unanticipated retarded speed brought about by head winds, currents and the slip of the propeller. We think the log books do not support these contentions. No unusual weather or current conditions are noted. The slip of the propeller had been as great at times before the arrival at Ponta Delgada as it was at times after the departure. Even more enlightening and convincing, however, is the fact that had the speed been that which the vessel made after leaving Lisbon and before the high pressure turbine was blanked off, 7.39 miles per hour, for which there could have been no justifiable expectation, the voyage from Ponta Delgada to New York would have required 12.91 days and so more than the amount of coal with which the Willdomino left Ponta Delgada. We think that upon leaving that port the vessel was not seaworthy for the voyage to New York.

The acts of the vessel in leaving Gibraltar, Lisbon and Ponta Delgada with an inadequate supply of fuel are attributable as a matter

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