34 F. 904 -

'904'

FEDERAL REPORTER.

being of any practical value, and that had they so regarded it they would have adopted it and practiced it." This view respecting the value of the seventh claim is of itself conclusive. It is said the master is mistaken regarding the imputed admission. However this maybe, he virtually reports the matter covered by the claim as valueless; and the proofs seem to justify this conclusion.

STILLW»L:f, v.

THE

J. D.

HALL"

(Diatrict Court,S. D. New York. Aprill1,l888.)
, Tin was shipped from New York to Buffalo in an open boat, to custom, and, by reason of heavy rains, and some leaking of the boat,waR delivered damaged, for which damage this suit was brought. The evidence indic/l.ted.thatthere had been a complete misunderstanding between libelant and claimant as to the hatches of the boat, the libelant supposing they were to be used, the claimant supposing the libelant waived the use of them. Held, that , both were in fault for the damage; the claimant, as common carrier, being bound to carry the goods safely, and to know whatwRs improper to be carriedwithout hatches; and the libehtnt, whose employe loaded the boat, for not seeing to it that the latter had hatches. Both were also in fault for not dunnaging suCh a cargo in an open boat. Held, that libelant should recover half his damage.
OF GOODs-LIABILITY FOR

Loss.

1. B. Stewart. for libelant. "Hyland & Zabriskie, for claimants·
   . BROWN, J. The libelant, acting as common carrier, contracted with the captain of the canal-boat J.D. Hall, in May, carry a cargo oftin in boxes from New York to Buffalo. The Hall was It Pennsylvania open-deck boat, provided with Huge hatches, so that the deck could be covered. The hatches, however, were at this time in 'Buffalo. During the trip, through heavy rains and'some leaking of the boat, a portion of the cargo sustained damages, to recover for which this action was brought. For the claimant it is contended',that in the contract of carriage it was expressly stated that the boat was an open-deck boat, and would have no hatches for the trip. If the testimony warranted a finding that this was the understanding, I shctuld have no hesitation in acquitting the boat of liability The contract in that case would plainly put upon the libelant the risk of the weather, as in the case of a contract for shipping goods to be carried,on deck. The libelant's story, however, is precisely the reV9rS6. He testifies that in answer to his inquiries whether the boat had hatches the claimant replied that he had; that tIn in cases was a kind of cargo that was never customarily shipped on deck, or'in boats without hatches. Consil1ering the fact that the tin was liable to damage from wet ",eather; that it is never customarily shipped on deck) or exposed in
   . i Reported by Edwart1 G. Benedict, Esq., of the New York bal'.
   

STIJ,LWELL ". THE J. D. HALl"

905

open boats; and that the libelant was well acquainted with the proper handling of such goods, it is impossible to suppose that the libelant, after making the express inquiry whether the claimant had hatches or not, would have shipped these goods in an open boat had he understood that there were no hatches for this trip. Nevertheless, an additional.witness for the claimant confirms the latter's testimony that in answer to the libelant's inquiries he told him that the hatches were in Buffalo. In this state of things I can see no alternative but to find that there was a direct and complete misunderstanding on each side; and that both, taking the circumstances all together, are to blame for such a shipment without a clear understanding upon so important a point. The claimant, as I::ommon carrier,.wa.s bound to Qarry the goods safely,and to kllowwhat was proper and improper to be carried without hatches. The very fact of the libelant's inquiry about his hatches, the nature of the articles, their liability to damage in an open boat,and the custom not to carry them in an open boat, should have put him on his guard againstmisunderstanding. Ordinary care and prudence, under such circumstances;, required the captain, either by repetition or by a very clear statement, to take special: care that no existed. In whatever way the misundersta.nding arose,......,.nd there are various forms of question and answer .by Which it might arise,-the previous conversation c01:1ld nl:>,t have been wholly clear and. unequivocal. Even the libelant, in his protest, qid not speak quite surely about it. On the other hand, the :!wat was loa4edby the libelant's employe, who was aJsopl'esumablyacquainted with the custom of the business, aud with the irnproprietyand danger of shipping tin in an open boat. There were no hatches visiple; and they are so bulky as to be. conspicuously present or absent. Yet no further inquiry was made on the subject. Upon both sides, aB;jt seems to Ille, there were sufficient circumstances to imposeupon each the necessity of more. caution, and of more careful inquiry than" was made. Moreover, the evidence would indicate that the damage was caused from the accumulation of water upon the bottom of the bOat, on which the lower tiers of boxes rested. The claimant, knowing the liability of such cargo to be injured by water accumulating ill that way ill rainy weather, ought to have put dunnage beneath the lower tiers, to avoid that danger. It is not, indeed, usua! to put dunnage in canal boats; but it WIlS not usual to carry tin in open boats. In departing from the custom by taking such cargo in an open boat, the claimant was bound to take reasonable precaution to protect it from injury, by the Ufle of dunnage, as in other cases of known necessity therefor. But.in this respect, also, the libelant would seem to be chargeable with blame, since the loading wllB done by his own man, and no dunnage was suggested. The damages and costs must therefore be divided.

906
MARX

REPORTER,.·.

et al. v.· THE

1

(Diatf1ict (Jourt. 8. D. N(J'IJl York.

Oll' GooDs-NEGLIGENT

April 28. l8SS.)

LIABILITY.

Two drums of glycerine in a consignment of 102 on board the steam-ship Britannia, were cut by chafing together during the voyage, whereby the glycerine leaked out. It appeared that the dunnage wood wllich was placed betwee.n all the drums of the. consignment, had fallen out during the voyage from between these two drums only. :The voyage had been a rough one. The damage :was within the exceptions of the bill of lading. Held, that the only fair inference wall that the wood qetween these drums was not secured in the usual and proper manner, andihat the loss was therefore the result of negli· gence in stowage, for which the ·steam-ship was liable, notwithstanding the exceptions of the bill of h.,ding.·. . .

Oeo. A. BkLck, for libelants. R. D, Benedict, for claimant.

In Admiralty.

Libel for damages.

BROWN, J. In Decernber,1885jtbeBritanniadeHvered in New York 102 drums of glycerine, consigned from Marseilles on the libelants' aC·oount; Two of the drums were so' injured on the piissage that the glycerine was lost to thev'alue of $l'fSr the rest of the drums were uninjured. The bill of lading excepted loSs from "leakage" or "pressure of other cargo."· ·Drums of glycerine are 'Peculiar in construction, and reqnireto be specially stowed with boa.rdsor ·planks between the drums. The testimony oitha'mate, given two months after the arrival of the steam-ship, shows that these two drums were in the lower hold; the one being on the top bfthe other; nndthaf pieces of wood, which in the stowing had ·been 'plaoedbetween them to keep them properly secured and apart,had dropped out, the ship having met tough weather on the passage.. The of the master, taken two years afterwards, as respects the disarrangement of the wood,is, I think, lessrelitlble. The matesta.tes 'positively that the wood fasteniligs:ror these two drums were all that had ,got (lUtofplace, and there isprdof of general good $towage. As the loss -arose froni "leakage," whichisione,of the exceptions of the bill of lading', the burdenof proof, in ordal' to' charge the ship, is upon the libelants ·t-o shoW' that there was some n'egligence on the part of the vessel that prO· duced the leakage.· Themttte's testimony shows the cause to have been lthe'dropping out of the wootUhatseparated these two drums, which'althe drums to ponna'dr each other. Had there been a 'ietiera} disarrangement of·the1vood, or had it:droppedaway between other rdrums, the proof of snch facte,'together with the .proOf of general good stowage, might have warranted the infel'ence that the tliaarrangement and dropping out of the wood was caused solely by the severe weather, a peril of the sea, which is also within the exceptions of the bill of lading; a.nd not by any defect in securing the wood of these two packages. But the

'Reported by Edward G. Benedict, Esq., of the New York bar.