279 F. 343 | 3rd Cir. | 1922
This is an appeal in admiralty. As the case stands, really two appeals are involved: One by the schooner from the part of the decree allowing the charterer damages for injury to the cargo; the other by the charterer — the case being on trial de novo — from the part of the decree denying it damages for short delivery. The John Twohy, 255 U. S. 77, 41 Sup. Ct. 251, 65 L. Ed. 511.
The John Twohy was a reclaimed wreck, purchased by the claimants, repaired at a cost of $22,000 and given a classification of A-1% by the American Eloyds. While in the Delaware River she was chartered to the libellant, with a warranty of seaworthiness, to carry a cargo of bones from Buenos Aires to Philadelphia. On her outward voyage she leaked, but whether more than ordinary for a wooden schooner could not be proved because of the disappearance of her log. Having taken on the cargo at Buenos Aires, the schooner, homeward bound, encountered heavy weather, but no more than usual in those waters at that season. She began to leak, and to leak badly, without known cause, gaining an average of six inches an hour and having in her hold at times as much as five feet of water. The pumps were worked almost continuously. After sixty-three daj^s, with hatches battened down all the while, she made the port of Philadelphia. The charterer, discovering the condition of the cargo when being discharged, filed this libel, claiming damages against the schooner for injury to her cargo and for short delivery. The District Court found for the libellant on the first ground and for the schooner on the second. The John Twohy (D. C.) 243 Fed. 720.
Turning to the amount of damages, it appears that the injury to the ivet bones was based on two factors, changed chemical condition and changed physical condition. Change in the chemical condition of the bones was based on analyses showing loss of the ingredients of ammonia and phosphoric acid (both more or less soluble in water) by comparison with the ammonia and phosphoric acid content of dry bones of the same character. The loss was represented to be three-fourths of one per cent, of ammonia and six and one-half per cent., of phosphoric acid. These two ingredients constitute plant food' for which alone bones are bought and used in the manufacture of^fertilizers. The wet bones were undesirable because of the dirty, slimy and generally nasty condition into which they were brought by lying in salt water. This change in physical condition did not detract from their chemical value as ingredients in fertilizers. It only made them a little more difficult to work into fertilizers with a presentable appearance. On this evidence the libellant claimed and the court allowed damages on 327,102 pounds of bones at $5.70 per 2,000 pounds, or $932.24. We think damages in this amount were proved and therefore affirm the part of the decree holding the schooner liable for injury to the cargo.
On loading, the cargo was weighed by the consignor but the weight was given in the bill-of-lading signed by the master of the schooner. This weight is not directly disputed by anyone as a matter of fact. It is disputed as a matter of inference only because the out-turn weight was less and there is no perfectly certain way of accounting for the disappearance of the difference.
As to the schooner’s liability for the delivery of less cargo than her master admitted she had received, we start with the bill-of-lading. A bill-of-lading, when acknowledging the receipt of goods without more, is regarded generally as strong prima facie evidence of the correctness of the quantity stated. The Lady Franklin, 8 Wall. 328, 19 L. Ed. 455; The Presque Isle (D. C.) 140 Fed. 202. Its probative force is given by Judge Ward in James v. Standard Oil Co., 191 Fed. 827, 112 C. C. A. 341, affirming (D. C.) 189 Fed. 719, as follows:
“The bill-of-lading in respect to the quantity received is a _ receipt, and, though entitled to great weight as an admission by the ship, it is not conclusive. The Tmr&en lies upon the stwp of thoroughly satisfying the court that*346 she actually has delivered all the cargo she has received and that the Mllof-lading is erroneous
There is a natural shrinkage in bones of from one to two per cent, but only when bones are dry. The under-stratum of this cargo was wet; indeed, it was saturated. On it lay an upper-stratum of dry bones. Both were in the hold of the schooner with hatches closely battened down for more than two months. Considering the spongelike structure of bones if is certain that in the wet condition of the hold the shrinkage of relatively dry bones, if any, was negligible. With shrinkage out of the way, we are back to the bill-of-lading which the schooner says (and the court found) showed incorrect intake figures; or if correct, we are asked to find that the out-turn figures must be incorrect, on the claim that the evidence shows that all of the cargo which was put aboard the schooner was delivered to the consignees. These contentions, made by the. schooner in the alternative, are based on the hypothesis that from the nature of things one set of figures must be incorrect. It is admitted that no one purposely or consciously made away with the bones. Yet there is a difference of 149,069 pounds between the intake and out-turn figures, which, prima facie, represents the disappearance of that quantity of bones in transit. All this is a mystery, yet it is one which the libellant offers to solve by the assertion — at first startling — that the bones had been pumped overboard. That some part of the cargo of bones was pumped overboard is the inescapable logic of the award of damages for injury to the cargo. If the part of the decree, now affirmed, allowing the libellant damages for injury to the cargo through loss of ammonia and phosphoric acid is sound, the decision establishes conclusively that at least this part of the cargo was pumped overboard.
Whether the remainder of the shortage disappeared in the same way is not so easy to determine.
The bones in the hold were stored in bulk. They were not ground; they were crushed, running in size from that of a grain of corn to the grains of corn meal. Further, their particles were more or less ground or pulverized by abrasion so that some of the cargo was very fine. The libellant contends that the fine bone seeped through the seams of the ceiling with the water when it was sucked out by the pumps. If the seams were sufficiently open to admit six inches of water an hour, or as much as five feet of water at a time, it is altogether possible that they were wide enough to permit the water, as it receded, to carry small particles of bone with it. It is likewise probable that the quantity of bones thus carried off by constant pumping for nearly two months was considerable. Against the certain disappearance of many thousand.pounds of soluble ammonia and phosphoric acid through the pumps, and in addition the certain disappearance of bones in some
The libellant calculated its claim for short delivery as follows: It took the “wet and damaged bones” at a weight of 389,407 pounds and, on the principle of extracting the water, subtracted from it 62,305 pounds for moisture, making a net weight of dry damaged bones of 327,102 pounds, On this weight it claimed and, as before stated, was awarded by the decree damages at $5.70 per 2,000 pounds, or $932.24. This is an important starting point on the second claim because in the damages awarded on the first claim there was involved the element of weight. On weight depends the question of short delivery.
Returning to the first claim for a moment, it is clear that damages were allowed because of injury to the bones as an ingredient of fertilizers. The value of bones as an ingredient of fertilizers is in the plant food they contain. This plant food is in the form of ammonia and phosphoric acid. While bones contain other chemicals, these are the only two on which the price is calculated. All else is inconsequential and is not figured in the price. So the damage to the wet bones by the loss of their ammonia and phosphoric acid content, produced a deficiency, it was testified, of of ammonia and 6%% in phosphoric acid. In other words, %.% of ammonia and of phosphoric'acid had been washed out of them. These percentages are on weight. It follows, therefore, that the libellant has been awarded- full damages for the loss of this weight of bones occasioned by their ammonia and phosphoric acid content, soluble in water, having been washed away. This loss of ammonia and phosphoric acid based on the analyses is given in evidence as 23,795 pounds. Having been allowed damages for loss from the bones of this number of pounds of ammonia and phosphoric acid, the libellant cannot again be awarded damages for short delivery of these same pounds. We are of opinion, however, that the libellant is entitled to recover for the short delivery of 149,069 pounds less 23,795 pounds of ammonia and phosphoric acid already included in damages allowed for injury to cargo; or, put into figures, the libellant should be allowed for short delivery the difference between 149,069 pounds and 23,795 pounds, or 125,274 pounds at $27 per 2,000 pounds, amounting to $1,691.20, less freight thereon at $6 per 2,240 pounds, amounting to $335.55, leaving a net balance due the libellant of $1,355.65 with interest.
The decree of the District Court is affirmed in part and reversed in part and the case is remanded for modification of the decree in conformity with this opinion, four-fifths of the costs of this appeal to be borne by the appellants and one-fifth by the appellee.