(District Oourt,8. D. New York. January 3,1882.) 1.
BURDEN OF PROOF.
Where goods are received on board ship in good condition and found to be damaged when delivered, the burden of proof IS upon the carrwI' to shuw that the damage arose from some peril excepted by the bill of lading.
Different parts of the cargo must be so stowed as not unnecessarily to injun. one another.
The libellants shipped 432 bales of 1V001 on the ship P., at San Francisco, to be delivered in New York, on the usnal bills of lading. On delivery, 24 bales were found injured by sea-water, and 76 other bales were found damaged from some other cause, being rotted and caked on the bottom or sides of the bales, or in strips across them. Wet redwood formed a part of the cargo, upon which, as a temporary floor, the wool was placed, with dUlmage strips between, separated by open spaces. It was proved that such rotting might arise from CODtact of the bales with wet wood, or from very close proximity to it, when steaming from the wet; also, that the ship met several severe storms upon the voyage, and took in water which penetrated between-decks, and that there was much sweating of the cargo. Held, that an adeqnate canse of the damage by sea-water being shown, the injury to the 44 bales from that cause w.as within the excepted perils, and that the vessel is not liable for that part of the loss; but that the damage to the 76 bales arose from contact with, or too close proximity to, the wet reiwood taken on board as a part of the cargo, against which the carriers were bound to protect the wool by proper stowage, and that the vessel is liable for snch damage.
In Admiralty. William A. Walker and P. B. Jennings, for libellants. Owen it Gray, for claimants. BROWN, D. J. This is an action in rem to recover damages for injury to 120 bales of wool, by sea-water and contact with wet rodwood, in the ship Pharos, on her voyage from San Francisco to New York, in 1879. The wool in question was part of 432 bales shipped on account of the libellants, in good condition, under the ordinary bills of lading, to be delivered to the libellants in like good order and condition, perils by the sea excepted. The Pharos sailed from San Francisco on the fifteenth day of May, 1879, and arrived in New York on August 29th of that year. She carried a mixed cargo, including about 1,900 bales of wool, and 140,000 feet of redwood, in planks or timbers of various dimensions. The redwood was mostly laid as a floor upon the beams of the lower deck. Over this, dunnage, consisting of strips of board about one inch thick and a few inches apart, was' laid, and upon this a large quantity of the wool was
THE PHAROS ·
.stowed. Along the wings of the upper and lower between-decks tliles of redwood were also stowed, some three feet in height, on top of which bales of wool were laid, separated by dunnage, and bales were also stowed between the wings, separated from the redwood by similar upright strips of dunnage. The Pharos was a new vessel, first class in every respect, and in l!, seaworthy condition when she left San Francisco. In her voyage round the cape she met with several severe storms, whereby she took in considerable water, some of which penetrated between her decks. When the libellant's wool was unladen in New York, 24 bales wer.e found to be damaged from sea water, and 76 other bales were shown to be damaged in a manner clearly distinguishable, as the witnesses testify, from mere damage by sea water. Some of these had the entire side of the bagging rotten, and the wool beneath caked and rotten; others had the entire side in a similar condition, except two or three straight strips across the side of the bale where the bagging and wool beneath would be perfectly sound, while on each side of these stmight strips the bagging and wool were rotten; some had the edges of the bale in a similar condition, and some had the end affected in a similar manner. It did not appear in what part of the ship the libellants' wool was stowed, nor were the libellants aware of the damage until the wool was discharged. The master testified that wool, if in contact with wet wood, would become caked and rotten. The rotted strips in the bales of wool might, in his opinion, have been injured from the moisture or steam rising from the wet redwood between the strips of dunnage. Much of this wood, he said, was loaded when wet, a considerable portion having been · previously submerged in the water. He testified, in a general way, that the cargo was well protected by dunnage, and claimed that there was no injury except such as arose from the steaming and sweating of the cargo, and the access of sea water from perils of the sea. One of the port-wardens testified to seeing one bale showing a similar strip across it unstowed from a place at a considerable distance from any redwood; another saw some bales in contact with the redwood where the dunnage was out of place. Along the wings only every other strip of dunnage was fastened, and many of were out of place. The impress of bales of wool was also noticed stamped upon some redwood discharged, as it lay on the wharf. The witness who observed this, an inspector for one·half of the insurance companies v.9,no.15-58
interested in the cargo, requested permission to examine the stowage which was not granted. During the voyage a slight leak became evident-from some caUSf unknown. It was sufficient to require from five to ten minutes' spell at the pumps every four hours,-not an unusual thing, as Capt. Spencer testifies,-which did not make the ship in the least unseaworthy. After the discharge of the vessel it was found to arise from what is known as a "private leak"-a slight defect in one of the outer planks of the ship. Its position was Eluch that no sea water could have gained access to the cargo, which was protected by the inner ceiling, and I am satisfied that this ha.d nothing to do with the injury to the wool. The claimants received the wool in a good condition for transportation as common .c.arriers; they were bound to deliver it withant injury, except from perils of the sea. It was clearly proved that 120 bales were seriously damaged when delivered in New York. This injury occurred while the wool was on board ship. It was not incumbent upon the libellants, therefore, in the first instance to prove the particular cause of the injury. The burden of proof is upon the claimants to show, in exoneration of their liability, that the injury arose by some peril of the sea within the exceptions of the bill of lading. In Clark v. Barnwell, 12 How. 280, the court Bay: "After the damage to the goods has been established the burden lies upon the respondents to show that it was occasioned by one of the perils from which they were exempted by the bill of lading;" and if brought "within one of the accidents or dangers of navigation, it is competent to the shippers to show that it might have been avoided by the. exercise of reasonable skill and attention; for then it is not deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather a loss occasioned by his negligence and inattention to his duty." The Sabioocello, 1 Ben. 351 i The Black Hawk, 11 Ben. 201. As x:egards the 24 bales I think the evidence discloses sufficient probability of injury through sea water from perils of the sea to acquit them of responsibility for that part of the damage. The Neptune, 6 Blatchf. 193: As to the 16 bales, I think their defence iB not made out. The peculiar nature of this injury in the caking and rotting of particular portions of the bales shows that it could not well have arisen in any other way than by direct contact with wet wood, or by
snch close proximity to it through unprotected openings as would permit its steaming to produce similar damage, and the one was as much uegligence as the other. The considerable number of bales rotted in strips, compared with the small number affected by sea water, shows tLat .the wetting of the wood, whether of dunnage or of redwood, could not have arisen from the drip of sweating, nor from sea water taken in through perils of the sea. There was at no time any flood'ing of the between-decks, and there could be no dripping of the sea water which would not have affected the upper surface of all the bales of the upper tier much more than it could have affected any dunnage strips which might be in contact with the bales of wool. I must find, therefore, that the caking and rotting of the wool were owing to its contact with, or very near proximity to, wet and steaming redwood. Had the wet wood been entirely covered by dunnage it would seem that the wool would have been uninjured; but if, as it is alleged, spaces were needed to be left open for ventilation, this could not be done at the expense of the wool; and either the redwood should have been rejected, or, if taken on board, put where it would not injure other portions of the cargo. The contact or close proximity of the wool and the wet wood could have been easily avoided, and failure to protect the' wool properly is such a want of skill and attention as constitutes negligence in stowage which renders the carrier liable. Mainwaring v. The Carrie Delap, 1 FED. REP. 874. The evidence afforded by the impressions of wood upon the bales, and of the bales upon the redwood, cannot be overcome by mere general testimony that the dunnage was well laid. Along the wings the (1unnage was proved to have been insecurely fastened, and the general testimony of the master and other witnesses, that the dunnage over the redwood in the lower between-decks was well laid, is much qualified by the fact that they saw but a small portion of it laid. Even if the burden of proof was upon the libellants to show the particular cause of the injury, I think it is sufficiently shown. The presence of a sufficient cause is shown in the wet redwood, whether III contact with or in close proximity to tke wool, either of which would render the carrier liable; while no other consistent or adequate cause of the damage to the 76 bales appears. There must, therefore, be judgment for the libellants, with costs, and a reference to ascertain the damage to the 76 bales above refel'redto.
THE AUSTRIA, etc.'"
January 31, 1882.)
A ship and a schooner were fastened, respectively, to the northerly and southerly sides of the same slip. In consequence of the:violence of 8 gale from the north, the forward fastenings of the ship gave way, and her bow was beginning to swing to the south, when those on board of her hailed the schooner get away, as the ship was drifting. In doing so the schooner foundered. Held, that the ship was not responsible for the injury, as her original fastenings were all that were reasonably necessary undel' .he circumstances, aud she was, otherwise, free from negligence.
Miltun Andro8, for libellants. W. H. L. Barne8, for claimants. HOFFMAN, D. J. On the eighth of 1vIarcb, 1881, the ship Austria at a pier on the north side of and the scow-schooner Modoc were a slip on Oakland Long Wharf. The Modoc arrived at about 12 or 1 0' clock, and made fast to the wharf astern of the Austria; the latter being further up the wharf towards its head. At about 4 o'clock P. M. the Modoc moved further up the slip, to a position south and abreast of the Austria, with the object of getting under her lee, as t'he weather had become threatening. She put out several lines to the wharf, for· ward and astern of the Austria, and attached one to the latter vessel about amidships. The wind continued, as night came on, to increase in violence, and at about 8 o'clock the Modoc was hailed from the Austria to let go the line attached to that vessel. Before, however, this could be done, the line was cast off by the Austria's crew. The Modoc then hauled off to the south side of the slip, to a position to the south of and not far from abreast of the Austria. A short time afterwards the schooner was hailed from the Austria to get away. as the latter was drifting. She had in fact parted her forward fasts. and ·her bow was swinging-beginning to swing round towards the south before the northerly gale. There seemed to be imminent danger that the schooner would be crushed between the Austria and the wharf. She therefore commenced hauling out between the Austria's stern and the stern of the Transit, a large steamer which was attached to the southerly pier of the slip. In so doing her boat was crushed, but whether by contact with the Austria or by the falling of the schooner's main boom, the toplJing-lift of which had fouled with the rigging of the Transit, is disputed. The Modoc cantin·
· !Ie.reported, 1.