141 F. 435 | W.D.N.Y. | 1905
This is a proceeding in rem against the
steamer Gordon Campbell to recover damages to a cargo of clipped white oats, shipped by libelants in good condition at the port of Chicago, Ill. to Buffalo, N. Y. The elicited facts support the conclusion that the
Libelants contend that the facts indicate that the stipulated time of sailing was in five or six days after making the charter, and that such term was a condition precedent. The respondent claims, on the other hand, that the charterers had ample notice that the vessel required repairs to her machinery and boilers and other preparations for her departure. The exact length of time that it would take to finish such re
This brings me to the next question, namely, whether the vessel at the beginning of the trip was unseaworthy in structure for the carriage of the cargo. Although the respondent claims that it rained or drizzled at different times during the loading of the vessel, I am satisfied by the-proofs that the grain when stowed was in a reasonably fair condition, and that no injurious moisture got into the cargo at such time. It is undisputed that, on the arrival of the steamship at the place of unloading, about 2,229 bushels of oats, extending along the lower hold from the pump box near the fore bulkhead to the aft bulkhead near the engine room, and a quantity of oats aft in the fantail, were wet and in a caked condition. Neither is it controverted that a considerable quantity of grain underneath the hatches was warm or heated. The respondent chiefly relies upon the showing that the vessel was loaded in rainy, damp, or foggy weather, and that the cargo in consequence became heated, and not, as claimed, because of unseaworthiness. This reliance, however, is not supported by -the evidence.
Upon the question of the unseaworthiness of the vessel, it appears that the deck near the windlass bulkhead was decayed and the oakum yielding. The pump was located on the main deck, near the windlass room, and the supply pipe reached to the keelson or to the bilge. The evidence indicates that, whenever the pump was used, the water which had collected in the bilges was spilt upon the leaky deck. During a part of the time that the ship was detained, a spout or trough six inches wide, made of wood, was used to conduct the water to the scuppers. This trough, however, was inadequate to carry the quantity of water pumped, for the evidence is open to the inference that the water splashed over the edges and leaked through the deck upon the cargo in the lower hold. When the trough was not used, the water was pumped upon the deck, and, as a large quantity of water collected in the bilges, it was necessary to frequently resort to the pump. An examination of the vessel was made by libelant’s witness Clark immediately upon her arrival at Buffalo and before unloading. He testified that there was a continuous streak of wet or caked grain in the main hold at the bottom, extending about 120 feet from the fore bulkhead to the aft bulkhead near the engine room; that at the aft bulkhead, in the bottom of the vessel, he observed water from bilge to bilge, and that.damage to the cargo in different places, on account of water and heating, was plainly perceivable. Other testimony in corroboration of this witness was given by libelants.
The stipulation in evidence shows that 2,229 bushels of grain were in such damaged condition as to render elevating the same impracticable. The libelants having refused to pay the freight, the damaged grain was sold, and the proceeds of the sale paid to the respondent. Such adjustment of freight, of course, does not affect the question of depreciation of the value of the balance of the cargo from heating.
Consideration of all the evidence induces the conclusion already intimated that the libelants are entitled to a decree. As no evidence was given of the sound value of the heated grain, or of the actual amount of the damages claimed to have been sustained, an order may be entered, with costs, referring the case to the clerk to assess such damages. So ordered.