in order to fasten the lObsened seat of the feed-pump; 'on the 30th the pumps became foul, and the valves turned around; on the 29th the ship was rplli.ng heavily,but no water,.as tbe says, was taken in from above;' It rose two inches above the floor,as be says, "in consequence of the inexperience of the 8eCoudengiup.ei'," who did not turn off' the feed-cocks, as he should have .done, when the engine stopped. On tbe 30th, or subsequently, some water came in from above through the but it is plain from the engineer's testimony that this open was· not the principal cause of the accumulation of water below. Even if tb,e repacking of the steam-gauge and repair of the pumps eould be held,to have been made necessary by sea perils, tbereis no reason to suppose that ,with ·reasonable care and skill those repairs. need to have been attended, by any such accumulation of water. The engineer's testimony clearly sho,wis, as it seems to me, tbat this accumulation was caused through the mistake and inexperience of the second engineer, who before that trip bad been only a fireman. He says:tbat be bad not been fully instructed. To bring the case within the excuse of sea perils, the ship was bound to show that this accumulation of water could not have been avoided by the use of reasonable skill and diligence. This is not made out, and the vessel must therefore, on both grounds, be held to the responsibility that the law casts upon her. Decree for the libelants, with costs.
(District Court, S. D. Ne1JJ York.
November 24, 1888.)
SHIPPING-CARRIAGE OF GOODs-NEGLIGENT STOWAGE.,
It is the ship's duty to take all the precautions that exeprience shows to be necessary to avoid injuries to cargo liable to arise on the voyage. If the best customary means are not employed. it is at her risk.
On a voyage from Messina, 1ilberts in bags were stowed against a movable wooden bulk-head separating the compartment from the coal bunkers, through which an extraordinary amollnt of coal dust penetrated, and injured the nuts. The J;mlk-head was covered by Chinese matting, which is often used for such purposes; but canvas is equally used, and is better, because tighter. Hela, that coal dust is not a sea peril, and that the ship was liable for the damage, for not using canvas as the best protection, as well as for putting the bags pext to the bulk·head, instead of other cargo less liable to be injured.
SAME-DUTY OF CONSIGNEE-OVERHAULING DAMAGEP CARGO.
Consignliles are not bound to overhaul and repair damaged goods for the ship's benefit. rather than sell them at auction as damaged goods, where the ship's agents have opportunity to do the sarrie work.
In Admiralty. Libel by ,John Hills and others against Robert Mackill and others for damages arising from injury to cargo of the steam-ship Ettrickdale. Scudder &; Garter and Geo. A.Black, for libelants. E. B.C'onver8, for respondents.
HILLS V. MACKILL.
BROWN, J. The above libel in personam was filed to recover for damages to 278 bags of filberts, injured by coal dust on a voyage ofthe steam.. ship Ettrickdale from Messina to New York. The bags were stowed in the lower hold" compartment No.2, and against the bulk-head that separated that compartment from the coal bunkers. The other bulkheads of the steam-ship were ·of iron, and fixed. This one was made movable, for the purpose of enlarging or contracting the size of the coal brinkers, and was therefore constructed of wood. Between-decks, the planks of which it.was made were 2! inches thick; in the lower hold they were 3 inches thick. They were placed perpendicularly, and tongued and grooved together. Before the cargo was loaded\ Chinese matting was nailed upon the cargo side of the bulk-head, the ends of the mats l,apping, and being fastened by means of laths. On delivery at New York, the 278 bags were found so black with coal dust, which had also penetrated inside and among the nuts, that they were not merchantable, except as dalllaged goods. A part of the bags were overhauled, and made merchantable by the libelants; but, on learning that the respondents would not admit their liability for this damage, the libeb ants refused to take further pains about the rest, and they were sold at auction as damaged, on notice to the respondents. The ,respondents contest their liability for the damage on the that the bags were stowed in the usual manner, and that there was no negligence on their part; that the bulk-head was well constructed, and of the kind in ordinary use in similar steam-ships, and protected on the inside by IIl,8tting, in the customary way. SOIDe testimony was by the libelants to the effect that after arrival in New York there was an opening between the planks of the bulk-head wide enough to inser.t the fingers. Upon other testimony in the case, however, I am not satisfied of the correctness of this testimony. The master states that the setlmS of the bulk-head were caulked at Messina. Other witnesses state that on arrival at York the oakum had worked out in part, and was seen banging from the cracks. The vessel experienced very heavy weather during her voyage in the month of December, and the respondents tend that this was the only cause of the unusual amount of' dust that worked through from the coal bunkers. On a voyage not long previous the ship had carried a cargo of coal, but it was claimed that the compartments were subsequently thoroughly washed. This ship was a common carrier. There is no dispute that the goods were received by her in good order. She was bound py her contract, as well as by the law, to deliver them in like good order, unless she proves the damage to be within some of the recogI).ized legal exceptions to her liability. There is no exception in the bill of lading applicable to the case other than the general exception of "sea perils.," Damage from coal dust is not, at least di:rectly, a damage from seaperUs. If a ship is sea-worthy at the start, and performs her whole duty in properly stowing and protecting the goods against, the dangers likely to be incurred on the voyage, subsequent arising frOID unusual rolling or pitching in extraordinary weather dpu1:>tlesfl, damage arising fruw a peril of the sea. So, where ,;fixed
custom permits the stowage of different kinds of goods together, damage that atises from their injuring each other during' extraordinary weather is held one of the perils of navigation assumed by the shipper, and within the ordinary exception of the bill of lading, if they are well stowed; otherwise not. In this case the custoDlary use of movable wooden bulk·heads in steam-ships of this character is sufficiently proved. So far the ship was not unfit for the voyage. That some coal dust is ordinarily liable to work through the bulk-head is well known. The Thomaa Meltrille, ·31 Fed. Rep. 486, 488. It was proved that, to prevent the working of coal dust into the adjoining compartments, matting was in some cases used; in other cases, canvas; and that the latter is best, because tightest. There was no definite custom in this respect. In stowing cargo against the bulk-head, through which coal dust was likely to find its way, it was the duty of the ship to take all the precautions that experience had shown to be necessary to avoid injury; having reference to the kind of bulk-head she had,and to its cQIldition at that time. If the best-known means were not adopted, it was at her risk, and not at the risk ofthe goods. It was the ship-owner who had charge of the loading, and who was to determine which parts of the cargo, if any, should be placed near that bulk-head. If the coal dust was liable to penetrate the bags of filberts, they should have been stowed further,awayfrom the bulk.head; or else adequate protection should have been used by canvas coverings, such as are often used to protect other kinds of cargo, or the bulk·head itself covered with tight canvas. The Marinin S., 28 Fed. Rep. 664,32 Fed. Rep. 918. ' The owner of the goods hus no control over such matters. Under the law that imposes on the ship, as carrier, the duty.of safe delivery, the ship takes all such risks, unless she can show the use of all reasonable skill and good judgment, or compliance with so definite a usage in the stowage and protection of the goods against injury, and such use of the well-known and best means to that end, as legally import an assent ·of the shipper to transportation in this mannet. Ba:r,. ter v. Leland, 1 Blatchf.526; The Sabioncello, 7 Ben. 357; TheMaggieM., 30 lfed. Rep. 692. The evidence does not show such care, either as regards the choice of goods to be put next the bulk-head, or as to their protection against dust; and the ship is not, therefore, legally excused. The amount of coal dust that caine through was extraordinary. It covered, more or less, all the cargo that was .stowed in that compartment, though the rest may not have been damaged by' it. There iii room for doubt whether the master is not mistaken as to the caulking of the bulkhead at Messina, and whether, at the time he testified, he had not confounded that with the caulking at New York, which was entered in the log, while the log does not show any caulking at Messina. Upon the question of fact, considering the amount of damage done by the coal dust, I should find it difficult to believe that the bulk-head was made as tight as usage requires, either by caulking, or canvas, or matting. As respects the bags sold at auction, the respondents had full notice, and, so far as appears, could have overhauled them themselves, or have procured this work to be done by others, had they chosen to do so. They
HEYE V. KORTH GERMAN LLOYD.
had no right, I think, to demand that the should do this worle, rather have the gpods .sold at auction. The analogy drawn from the repair of vessels damaged by collision is not, I think, applicable. So far as I know, it has never,been applied to damaged goods; and tbe circumstances, as respects the facilities of sale, and tbe means of obtaining the proxiinate value of the damaged articles, are Wholly different. Unless there is some dispute, therefore, as to the result of the auction sale, or some unfairness is cbarged in regard to it, the libelants may take a decree for the amount claimed, with interest and costs. If tbereis dispute on these pointl:l, a reference may be taken to ascertain the damages.
NORTH GERMAN LLOYD.
(Oircuit Oourt, 8. D. New York. November 14,1888.)
A passenger's baggage, stowed in the baggage compartment of a steamship,and damaged by water in an attempt to extinguish a fire which threatened the safety of the vessel, is a subject of average contribution.
In Admiralty. Libel for damages. On appeal from district court, 83 Fed. Rep. 60. Libel for damages to the contents of libelant's trunks, caused by fire on board respondent's steamer Ems. ,Decree for libelant, and an order of reference directed to ascertain the amount if not agreed on. Respondent appeals. W. G. (]hoare, for appellant. R. D. Benedict, for appellee. WAJ.LACE, J; . Tbe only question which has been argued upon thIs appeal is whether passengers' effects are a subject of average contribution wben sacrificed under the conditions of necessity and common peril constituting a general average loss. The counsel for the appellant insists that they are not to be contributed for, but cites no authority directly to the point; and there seems to be no decided case in the courts of this country or England in which the question has been determined or considered. His argumeut is that passengers' effects do not contribute ill a general average loss, and therefore should not btl contributed for, because the principle of general average contribution is reciprocity of burden and benefit. But all the commentators without exception aasert or assume as unquestionable, that passengers' effects are to be paid for in case of sacrifice. Even the English text writers do not question this. Thus it is stated in 1 Maude & P. Shipp. 434, 435:
.. But although these [the wearing apparel, luggage, jewels, or other property of this description belonging to the passengers, on board for 11%e. but not for traffic] do not contribute, it is apprehended that if ammunition. pas-