61 F. 1014 | 4th Cir. | 1894
This is an appeal from a decree in admiralty from the district court of Maryland. The decree awarded the libelants damages, to the amount of $16,185 and costs, suffered on a shipment of 5,000 barrels of flour from Baltimore to Bio de Janeiro in the winter of 1890-91. The questions of fact arising in the case are very numerous, and they have been strenuously contested at every point. The evidence taken is unusually voluminous. The briefs are elaborate and litigious. The work of examining it all minutely has been laborious, protracted, and tedious. The case itself is a case of facts. It turns upon facts, and involves few contested points of law. It would be impracticable to present a full dissection and analysis of the evidence. The court must content itself with setting out, in the form mainly of narrative, as the facts of the case, those which it considers to be established by the preponderance of testimony.
The steamer Thames (J. E. Bernier, master) was a ship of 1,064 tons net, and 1,658 tons gross, 282 feet in length, and 34 feet beam. She was an iron ship, well built, and exceptionally strong and staunch, as to the hulL Her between decks had been partially fitted for passengers when first built, but she had been altered in this respect, the passenger accommodations, and the ventilators necessary to them, having been taken out. She had been converted into a ship exclusively for freight, without provision for ventilation in the hold, and in most of the between decks. The libelants, who are merchants of New York; the house of Phipps Bros. & Co., who were the consignees of the flour at Bio; and the master of the steamer,—were all British subjects; and the steamer was a British ship, flying the British flag. The flour under consideration was a part of the cargo of general merchandise which was taken on board the iron steamer Thames, partly in New York and partly in Baltimore, for shipment to Bio de Janeiro and Santos, in Brazil. The flour was taken on in Baltimore for shipment to Bio. The Thames left Baltimore on the 26th December, 1890. There were only two or three days of high wind during the voyage, and no casualties. She reached Bio on the 23d January, 1891. The flour remained on board ship until the 26th. The work of discharging- it, and transferring it to a bonded warehouse in Bio, called there the “Trapische Damaio,” was begun on the 26th, and completed at the end of the 31st. The consignees in Bio were the house of Phipps Bros. & Co. The agent of the owners of the steamer there was the house of Berla & Co. The cargo of the steamer, on this voyage, consisted largely of kerosene oil. This was shipped in cases, each case embracing two cans. The amount shipped was 17,000 cases or 34,000 cans of oil. This was all stowed in the hold of the steamer. The stevedore, Everett, who stowed this large quantity of oil and the rest of the general cai’go of merchandise on the Thames in New York, also stowed the 5,000 barrels of flour taken on at Baltimore. The flour was stowed on top of the oil, in close juxtaposition,
“(a) That her decks were improperly constructed, and. leaked, and let in water, into the hold and the between decks, from the sea, and when it rained, and whenever the decks were washed down, and, further, that there was a leak in said vessel, around or about the hawse pipe, through which water reached the cargo, and there were other leaks and defects in the hull of said vessel at the commencement of, and on, said voyage; (b) that she was improperly -and too heavily laden, and trimmed so that she shipped more water over her decks, even in fair weather, than she should have taken in; (c) that she was insufficiently ventilated, and had no provision for such ventilation as was required for the cargo carried on that voyage; and (d) that she was improperly stowed for this voyage, and with this cargo.
“And they further say that the said cargo was negligently, improperly, and badly stowed on this voyage, in this: (a) In placing said flour and kerosene oil in juxtaposition; (b) in placing said flour and kerosene oil at all in the same compartments of said vessel, or its hold, with insufficient protection or dunnage between them; (c) in so stowing said flour and said kerosene oil in the same compartments or hold, where there was no proper provision made for ventilation.
“And libelants further say that by reason of the leakage of the decks of said vessel, and the leak around or about the hawse pipe, and by reason of the other leaks and defects in the hull of said vessel as aforesaid, sea water and rain water, and water used in washing down the decks, found its way into the hold, and between decks of said vessel, where the cargo of flour was stowed; and the said flour was damaged thereby, and rendered unsalable, the barrels being wetted and stained, and the flour in the barrels being caked and soured, and that about (2,000) two thousand of said barrels of flour were thus damaged by water. In addition to the said damage by water, libelants further say that the whole of said cargo of flour was—by reason of the improper manner of stowage above described, of the flour and kerosene oil in juxtaposition, or in the same compartments or hold, and Joy the lack of proper ventilation, or, indeed, of any' ventilation—badly damaged by the smell of said kerosene oil, which permeated the same, ’-endering it offensive and unmerchantable, beside* which some of said flour was damaged by leakage of said kerosene oil, and actual contact therewith.”
Passing now to the objection of libelants that the steamer was without provision for ventilation, and therefore unseaworthy as to perishable freights, the evidence shows that the hold of the Thames, like that of all iron steamers, was subject to excessive sweating, frequently so considerable that the water ran down the sides of the ship in streams. It shows that, for drying this heavy sweating, no ventilation was provided during the voyage, and could not be provided, on account of the omission of ventilators in the construction of the ship. With reference to this defect, much evidence was taken on the custom of shipping kerosene oil and flour in the same compartment of a ship. Nearly all the witnesses testify that the practice is objectionable to shippers generally, even when moderate quantities of oil or flour are shipped. In Baltimore it may be stated that objection is very strenuously urged against the practice by nearly all shippers, as well when the ships are well ventilated as when
The question whether the libelant is not barred by the act of his own stevedore is well settled. If the stowing be improperly done, the freighter for whom he stows is responsible. But it is the practice for the master to designate where the cargo, and each part of it, is to go, and the stevedore must accept the places he designates. Then, if damage results from the designation of improper places for the several parcels of cargo, the ship is responsible. That the flour of the libelants, shipped on the Thames, was damaged by water and oil, does not admit of doubt. The reports of the two surveys called in Rio to make examination of its condition are emphatic on that subject. All the witnesses examined at Rio, several of whom had personal knowledge by inspection of the facts, corroborate the finding of the surveys. All parties at Rio, whether interested pro or con in the question, seemed to accept the fact of damage without question after the two surveys held at the Trapische Damaio, or bonded warehouse, had made their report. Expressions of some of the individual witnesses on ihe subject of damage to the flour are given as follows: One witness said:
“AH the barrels, whether with or without external signs of damage, had a strong smeU of kerosene oil, the effect of which was to vitiate the flour and render it almost unsalable.”
The purchaser of the flour testified that:
“In its totality, the damage was from salt water and kerosene, some more, some less; all of them presenting signs of damages, and from part of the barrels not even one-third of the flour being tit to be employed.”
Another witness said:
“All the 5,000 barrels smelled of kerosene, and were not damaged by being in contact with the oil itself. With the barrels that were damaged by water, the smell was fixed in the exterior part; with the sound barrels, the smell was mainly stronger in the center of the barrels.’*
“Caused by the leakage of the deck, and by kerosene being spilled on the barrels. The most of the barrels were black, and I could see the water drip1 ping through the seams of the deck. The contents of some of the barrels were swelled, and the flour appeared through the broken staves like dough.”
Other such statements could be given, if any doubt could remain of the flour being damaged to a degree that rendered it unmerchantable as an article of food.
It is complained in behalf of the appellant that the proceedings under which the condemnation and the sale of the flour at Rio were made were irregular, and not binding. There is, indeed, no affirmative proof that those proceedings were in accordance with the custom of that port, or of the ports of Portuguese countries generally. But the proceedings were, to all appearance, formal, regular, and valid, and they were acquiesced in as valid by the shipping and mercantile community in which they were had. There was no objection made by Berla & Co., the ship’s agents, and nothing but a mere formal counter notice of protest was entered by Capt. Bernier against a protest of damage which had been made by the consignees of the flour. The general acquiescence, and this special silence, establish a practically conclusive inference of the regularity of the sale. The libel in this case was filed on the 6th day of June, 1891, and the decision below was rendered on the 7th day of April, 1893, after an interval of 20 months, or 22 months after the judicial sale complained of. Certainly a silent acquiescence in these proceedings by the claimant for so long a period, and failure to .take affirmative evidence to invalidate the sale, operate potentially to confirm the inference of regularity already existing The court does not entertain a doubt but that the best interests of all parties to the transaction were subserved by the sale of the damaged flour that was made after its condition had been judicially determined.
It is contended by appellant that the notice of damage was not given within the three days prescribed by the bill of lading. The facts do not sustain this contention. The unloading of the ship, and transfer of the flour to the Trapische Damaio, were concluded on the night of the 31st of January, and the notice of damage, to Berla & Co., was given on the 3d of February. While the first survey was fulfilling its mission, and after it was discovered that the flour was damaged by the odor of oil, as well as by water, another notice was given to Berla & Co., and another survey ordered. We think the original notice of damage was in time to bind the ship.
It is competent, under the existing law of Great Britain, for common carriers on British ships of the goods of British subjects to exempt themselves, by express contract, from responsibility for losses occasioned by the negligence of their own servants. In'the case at bar, it is contended that the Thames should not be held responsible for the damage to the flour, caused, as it was, by leakage and the odor of oil, inasmuch as the case falls within the terms of the bill of lading under which the flour was shipped. This might be a good
Whether or not the steamer Thames was seaworthy, as to the leakage of her deck, is one of the important questions of the case, nearly 2,000 barrels of lhe libelants’ flour having been damaged by that cause. It is difficult to believe that a staunch, tight deck could result from the manner in which this deck was constructed. The great and just reputation of Lloyds would seem to he at fault in this instance, in which iis agents ignored a very important rule of its own enactment, though it may be a solitary one. It, is not easy to divine how large, wooden, deck planks, laid and unsubstantially fastened down upon the flat sides of half inch slabs of iron, which themselves are laid diagonally, nine feet apart, upon the beams underlying the deck of the ship, could constitute a floor or deck sufficiently Arm under the tread to prevent more or less springing of the floor, and solid enough to hold the calking from working out of the seams of the deck when the ship is in the buffets of the sea. Such a deck rests necessarily upon elastic supports. The beams of this ship were stout enough, but it is impracticable to brace slabs of iron, calk'd here “diagonal plates,” half an inch thick, fifteen inches wide, and laid flat and diagonally, nine feet apart, over the ship’s beams, to receive the deck planks so as thereby to secure a firm, solid deck. The weight of proof is decided that the deck of the Thames did leak, not probably in every seam or square foot or square yard, hut in every considerable part, and that this leakage,
Coming to the question whether or not this steamer was seaworthy for the purpose of carrying oil, and such a perishable article of food as flour, in the same compartment, without the flour being contaminated by the odor of the oil, here the meaning of the word “seaworthiness” is again to be discriminated. Small quantities of oil and flour may be stowed together with greater impunity than large quantities, as well in ventilated as unventilated compartments.' Even very large quantities of oil may be carried in juxtaposition with flour, without permanent injury, if the compartment receiving them be well ventilated, whereas, if it be not ventilated at all, much smaller quantities of flour would be irretrievably ruined. The teaching of the evidence is that the odor of oil in flour, if the apartment in which they have been stowed together has been ventilated, generally passes off after longer or shorter exposure to the air. But the case at bar was a different one from any mentioned in the evidence. Here was the extraordinary quantity of 17,000 cases of oil placed directly underneath the extraordinary quantity of 5,000 barrels of flour. Here was a total absence of the instruments of ventilation, as well as a total neglect of inspection during the whole voyage. The two substances were stowed together in a hold that was always damp, and filled with a damp atmosphere from two joint .causes,—the heavy sweating of the sides of the ship, and -the
“On the whole testimony, It appears that it is well known that although, on some steamers to South America, oil and flour were stowed in the same compartment, there were doubts as to its being proper" stowage; and it appears that, when it had been done, it was in ventilated compartments, and with moderate quantities of oil, and that it had never before been done with a great quantity of oil, and in an entirely unventilated hold.”
In respect to the manner of establishing a custom of shipping and stowing in vessels these two commercial substances, it is not sufficient merely to prove that more or less moderate quantities of flour and oil are habitually shipped in the same compartments of vessels. It is not sufficient to prove that large quantities are shipped in juxtaposition in well-ventilated ships. It is possible that there may he cases, distinguished by special circumstances, in which the courts would hesitate to hold that a ship was unseaworthy, for the purpose of carrying flour and kerosene oil in juxtaposition, merely for lack of ventilation. But the question, in every particular case, is on the circumstances which itself presents. In the case at har the special, concrete, practical question is whether or not this steamer was, as to ventilation, a seaworthy ship for carrying, without damage from the pungent odor of oil, 5,000 barrels of flour stowed in close contact with 17,000 cases of kerosene oil, on a voyage from Baltimore to Rio de Janeiro, lasting a month, in the middle of the hot season, under a vertical sun, across both tropics. It was not the duty of the shipper, or of his stevedore, to look after ventilation. They do not traverse the seas or the tropics, or take thought of their effect upon cargoes. It was the duty of the master to put his ship and her appointments in such condition that the flour could he taken without damage on that particular voyage. Knowing, or presumed to know, all the conditions attending the voyage, the appellant received that flour, and designated the place of stowing it on his ship.
It is impossible to peruse the testimony describing the manner and degree of the damage which this flour sustained, and escape the conviction that, had as the effect of the leakage of the deck was on a large portion of this flour, that resulting to all of it from the complete absence of ventilation wras greater. In point of fact, most of the damage to the flour did accrue from want of ventilation. The flour did contract odor to a degree that rendered it not only unfit, hut unsafe, to he eaten. It was formally condemned and sold as a damaged article. It was purchased, not for food, but for starch,
End on Oases in Vol. 61.
Third paragraph of bill of lading: “Pfirst clause.] It is also mutually ¡agreed that the carrier shall not be liable for loss or damage occasioned by cause beyond his control; by the perils of the sea, or other waters; by fire, from any cause, or wheresoever occurring; by jettison; by barratry of the master or crew; by enemies, pirates, or robbers; by arrest or restraint of princes, rulers, or people, riots, strikes, or stoppage of labor, or by claims of ownership by third parties; by explosion, bursting of boilers, breakage of shaft, or any latent defect in hull, machinery, or appurtenances, or unavoidable accident 1 hereto by collisions, stranding, or other accidents of navigation, of whatsoever kind, even when occasioned by negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the said company. [Second clause.] Nor for heating, decay, putrefaction, evaporation, or smell from other goods, rust, vermin, sweat, change of character, drainage, leakage, rain, spray, breakage, or any loss or damage arising from the nature of the goods, or the insufficiency of packages; nor for land damage; nor for the obliteration, errors, insufficiency, or absence of marks, numbers, address, or description; nor for risk of craft, hulk, or transshipment; nor for any loss or damage caused by the prolongation of the voyage.”