73 F. 352 | 2d Cir. | 1896
The Dunbritton was built in 1874 or 1875. She is an iron vessel, with two decks, both wood, .and three hatches in each deck;. She is 237 feet long, 38 feet beam, 22 feet deep; 1,471 tons net, and 2,100 tons gross. On her deck she had two ventilators, one abaft the foremast, the other 6 feet aft of the mainmast. These ventilators were 5 feet high. Each was made up of three parts, — the flange, the funnel, and the cowl. The flange was a cast-iron ring inserted vertically downward into the deck the thickness of the plank, with a 3-inch horizontal rim projecting around it level with the surface of the deck, and screwed fast thereto with 6 screws and 6 bolts, inserted through holes either drilled or cast in the rim. This flange extended vertically above the deck some 6 or 8 inches, and was about 15 inches interior diameter. The funnel of the ventilator was made of galvanized sheet iron, and was screwed on the flange. It was provided on top with a cowl or hood, with a bell-mouth. The forward ventilator opened into the between-decks, but there was no opening below it from the between-decks into the lower hold. The main ventilator opened into the between-decks, and directly below it was an opening in the between-decks, 18 inches square, by which access was had to the water tanks in the lower bold. Around this opening was a shaft of open slat work 4 feet square, extending up to the main deck. This shaft was used as a means of access to the water tanks and pump well. To descend the shaft, it was, of course, necessary to remove the funnel of the ventilator.
On January 6, 1892, the Dunbritton was chartered by Darragh, Smail & Co., of Alleppy (the East Indian house of the libelants in the first suit), by a charter party which required her to proceed to Colombo and the Malabar coast, there to load “from charterers or their agents a full and complete cargo, consisting of lawful merchandise, including cocoanut oil,” and thence to proceed to New York. She began loading at Colombo on March 3, 1892, took some cargo aboard at Cochin, and, having completed loading at Alleppy, sailed for New York on May 11th. Speaking generally, her cargo was stowed as follows: In the lower hold, fore and aft, plumbago, with diiolls of coir; in the rest of the hold, cocoanut oil, with dholls, and upon the oil bales of fiber, ballots, and mats, and some bags of nux vomica; in the between-decks, a few barrels of plumbago aft against the bulkhead of the lazarette; in front of them, and extending forward to the after hatch, some 40 or 50 casks of cocoanut oil, with bags of turmeric on top of them; and from thence forward rolls of matting, bales of fiber, coir yarn, mats, some tea, et cetera. The vessel arrived in Ne,w York October 19th. Discharge of cargo commenced October 24th, and was completed November 28th. Upon discharge, portions of the cargo below were found in the condition hereinafter set forth: ' (a) There were taken out of the lower hold about 186 casks of oil (i. e. cocoanut oil, which will hereinafter be referred to as “oil” simply), consigned to Darragh & Smail. These were shipped at Cochin, and stowed in the lower hold, four or five tiers deep. Cochin oil, as a rule, is better coopered than Colombo oil, and is a. superior article. It suffers much less from leakage.
Two theories are advanced to account for the damage to the plumbago. For the ship it is contended that during a severe storm a heavy sea carried away the ventilators; that the apertures thus left iu the deck remained open for a considerable time, while seas were constantly breaking over The deck; that, in consequence, great quantities of wafer got into the ship, first into the between-deeks, and thence int.o the lower hold, in part by the ventilator shaft, in part by the hatches, and principally by the scuppers: that there had been much leakage from the Colombo oil, due to inherent tice in the oil and packages, and, as the pumps sucked at 3J indies, there was
The ship having delivered the plumbago in bad order, it is for her to show that the damage was the result of a sea peril. It is necessary, therefore, to examine more carefully the evidence upon which she relies to establish this proposition. The first part of the voyage was prosperous, but in the latter part of June the ship ran into heavy weather and storms. Iron ships rarely leak, and during this period the pumps, although regularly attended to, seem to have disclosed the presence neither of water nor of oil in the hold. As before stated, the pumps sucked at 3¿- inches; and in view of the superabundant and uncontradicted testimony that Ceylon oil packages are peculiarly susceptible to leakage, and of the further fact that during the bad weather prior to July 10th the ship was a good deal knocked about, it is reasonable to assume that there was considerable oil in the bottom, although not enough to be reached by the pumps. July 10th opened with the wind gradually increasing and a heavy southwest swell. In the afternoon it was blowing a fresh gale, with a very high confused sea running. About 7 p. m. (it was dark at the time, which was winter off the Cape of Good Hope), a very heavy sea came aboard. It carried away the starboard lifeboat, and also the port one, smashing the latter in the port rigging. The donkey-room and galley-room doors were torn off. The pigsty and the steam winch cover, a large teak-wood box, were carried away. The sea, as the mate testified, also “broke three frames, one inside the fo’castle, and two outside, and two stanchions also, the bulwark stanchions. Also, the rail and the bulwark was cut about six feet just by the sea, and also the bulwark plate it stove in; also, the top-gallant rail and the pin rail.” The chief surveyor for Lloyds Register, who examined the ship upon arrival at New York, testified that there was damage “mainly on the starboard side of the forecastle, the after end of the forecastle, where the plates were bent inward, and three frames broken. The after end of the forecastle or Wing was completely carried away, excepting just a piece on the deck. There were damages also to the main rail, and there were iron stanchions broken. There was a lifeboat smashed or badly broken,
Necessarily, the narrative of these events of July 10th comes from the mouths of the officers and crew, and from them alone; and it is proper that, in weighing all such evidence, a court should have due regard to the bias which may be supposed to operate on the minds of men whose carefulness and fidelity to duty are issues in the case. But it does not follow that they are to be held perjured whenever some of their statements of fact run counter to the claim of a libelant. A careful study and comparison of the ship’s evidence as to the storm and its results has satisfied us that, in all substantial particulars, the narrative above given is accurate. There is nothing marvelous about it. Ships have in the past suffered like ill usage from wind and sea, and other ships will undoubtedly have similar experiences in the future. Moreover, the evidences of damage which were found to exist when the Dunbritton finally reached port confirm the story of those who sailed in her.
The regular periodical survey of the Dunbritton was held in August, 1891, and she was classed A1 at Lloyds. At about the same time, Capt. Auld, the "overlooker” for claimants, also made a special examination, preliminary to her purchase by claimants. He testifies that he examined carefully around the ventilators, for fear of any rot being about them. The screws or bolts ware not removed. He found the ventilators in first-class order, with regard to soundness and repair. The ship’s carpenter testified that the ventilators prior to July 10i:h were in perfect order; that he had to overhaul
We are clearly of the opinion that the carrying away of the ventilator, and the consequent taking in of water, was a sea peril, for the results of which the ship is not responsible. The case of The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, is relied upon as controlling to a different conclusion. It is, however, clearly distinguishable from the case at bar. The mishap to the Morrison was the loss of a plate and cap covering the orifice of a bilge pump. The plate, which was of brass, was let into the port waterway, and fastened in place with screws. The removable cap projected about three-eighths of an inch above the surface of the plate. During a heavy storm, when there was much water on the deck, both cap and plate were found to be missing; the screws having been torn out of the wood, part of the wood going with them, leaving white splinters hanging around the holes, which thus presented a ragged appearance. The holes were not smooth nor black nor rusty. From the small amount of projecting surface upon which a blow could be delivered, and from the condition of the screw holes, the circuit court (40 Fed. 501) reached the conclusion that the plate had been torn out by a blow of extraordinary violence, and inferred that some floating article, probably one of several planks which the evidence showed had been carried away from the bulwarks on the starboard side, had been hurled violently end-on against the cap, and, tearing out cap, plate, and screws, had gone overboard with them, through an open port in the bulwarks, about a foot square, immediately opposite the plate, leaving no other mark's of violence in the vicinity. This, of course, was only an inference. No one testified to seeing a plank or anything else strike the cap. The supreme court, however, was not satisfic'd with the soundness of this inference, as is evident from the following excerpt:
“There was no direct evidence that the plate was knocked out, or, if this were so, that it was by some extraordinary collision; and while the fourteenth finding [as to the splintered appearance of the holes] tends to support the inference of the sixteenth [that the plate was knocked out by something striking violently against it] it will be observed that the tendency of the fifteenth [that no other marks of violence were found in the vicinity] is to rebut it. If it appeared*359 iliat the wood was solid, and the screw holes splintered, the drawing out of the screws might be imputed to a blow or blows; bul, on the other hand, if there were no marks of violence in the vicinity, since such blow or blows, to effect the result, if the cap. plate, and waterway were in good condition, must necessarily have, been of great violente, it seems almost incredible that no marks thereof appeared on the stanchions and bulwarks on the port side, and That nothing but the cap and plate were carried away.” 153 U. S. 211, 14 Sup. Ct. 823.
It seems to be the conclusion of the court that the cap and plate “were so made or so fastened as to be * * * knocked off by some ordinary blow from objects washed by the sea across the decks.” In the case of the Dunbritton, however, there is direct evidence of a blow delivered by the sea upon those parts of the deck where the ventilators projected five feet above the surface, and that the same blow7 was of such violence as to tear off deck-house doors, smash lifeboats, cut away the rail, stove in bulwark plates, and break three iron frames and two iron stanchions, — “very unusual and excessive damage for an iron ship to suffer.” Certainly, there is convincing proof here of an extraordinary blow, to the effects of which the ventilators were exposed, and which left abundant other marks of its violence in the vicinity.
The supreme court, in the Morrison Case, further says:
“If, however, the vessel had been so inspected as to establish her seaworthiness when she entered upon her voyage, then, upon the presumption that seaworthiness continued, the conclusion reached by the circuit court might follow.”
The proof showed that the bilge-pump hole had not been used for four or five years, if at all, and that the cap and plate were painted over whenever the waterway was painted. The only inspection of them which was proved consisted of such an examination of them as could be given by the eye, without testing either by unscrewing the cap or the plate, or by tapping the plate with a hammer. Such inspection was held sufficient by the circuit court, which, from the strong indications afforded by the splintered condition of the holes, and certain direct proof that upon arrival at the port of destination the iimber of the -waterway where the plate had been inserted was found to be solid, reached the conclusion that there was no defect, patent or latent, and therefore nothing uiiseaworihy which a more rigid inspection would have disclosed. The supreme court, however, held the inspection to have been insufficient, manifestly because it did not concur with the circuit court as to the cause of flu? disappearance of tiie cap and plate, as appears from the following excerpt:
“Tlie obligation rested on the owners to make such inspection as would ascertain that the caps and plates were secure. * * ” In relying upon external appearances in place of known tests, respondents took the risk of fheir inability to satisfactorily prove the safety of '(lie cap anti plate if loss occurred through their displacement. We are unwilling, by approving resort to mero conjecture as to the cause of the disappearance of this cap and plate, to relax the important and salutary rule in respect to seaworthiness.”
Iii the case at bar, however, there is not only general testimony as to the apparent condition of the ventilators, almost from day to day, but proof of a special inspection and testing of their security according to known tests. The carpenter’s evidence on this point is
Having proved a sea peril for the results of which she is not responsible, the ship must next show that it is that sea peril which caused the damage to the cargo. This may be done by negative as conclusively as by positive proof. The sea peril having left water aboard the ship, which might reasonably be expected to cause the damage found to exist, it will be presumed to have produced it, if there is satisfactory and sufficient proof that any or all other suggested causes did not produce it. In the case at bar the proof is both positive and negative. As before stated, the theory of the ship is that the water taken aboard, bearing the oil upon its surface, rose in the hold to such a height that the rolling, pitching, and “tossing of the ship caused oil and water to be dashed upon the lower tiers of barrels and those stowed in the wings. It is manifest that the condition of the barrels when discharged would have a most important bearing on the question whether the damage was thus produced, especially since the only other suggested cause — a leakage through the after between-decks — would expose the plumbago barrels to the action of oil alone, unaccompanied by water. On this branch of the case, very many witnesses have been examined, and the testimony is extremely conflicting. The witnesses called by the ship (and among these are many who certainly must be considered as indifferent to the result of the case) testified that the plumbago barrels damaged by oil were also more or less stained with sea water. On the other hand, the witnesses called by libelants, some of whom were interested either for shippers or for insurance companies, and others of whom were apparently disinterested, testify that the damage was caused by oil, and that there was no evidence of - salt-water damage. It is not, however, difficult to reach a conclusion upon the whole body of proof bearing upon this part of the case, if certain important circumstances are borne in mind. The examination into the condition of the plumbago was had at the conclusion of a long voyage. One witness, indeed, testified that it might be expected that the contents of barrels damaged by salt water in July would still be moist when opened in September; but the weight of the testimony is overwhelmingly to the contrary. Whatever salt water had attacked the plumbago had long since dried up, and its presence was to be detected, if at all, by the stains and rust it -left behind it. Most of the witnesses on both sides agree that such traces will remain on the outside of a plumbago barrel which has been damaged by salt water, though one or more of libelants’ witnesses are of a different opinion. Many of the libelants’ witnesses, and notably those most disinterested, went to examine plumbago which they had been informed was oil-damaged, with the object of deciding if it was so damaged, and to what extent. When they found undoubted evidence of oil damage,
Taking all things into consideration, it must he held to be established by a fair preponderance of proof that the condition of the plumbago barrels when discharged in New York was such as tended to show that the damage was caused by oil brought into contact: with the barrels through the action of the sea water shipped during the storm. There is no suggestion of any other way in which this oil damage could have been caused, except by leakage through the between-deeks. It will be remembered that some 40 or 50 casks of oil were stowed in the between-decks aft of the after hatch, with plumbago in the after hold immediately below. The libelants contend that this was improper stowage under any conditions; that not only was Ceylon oil always liable to leak out of the casks to a considerable extent, but that, as one or two of their witnesses testified, it was so penetrating (hat it would flow through a permanently laid three-inch deck, planks and seams alike, apparently like Cathode rays through a pine box. The other witnesses for the libelants, 'however, do not
The condition of the between-decks as to tightness is therefore the only question of importance in this branch of the case. The between-decks was caulked in San Francisco in 1891, by the ship’s carpenter, under the supervision of the then captain, who testified that the work was thoroughly well done, the between-decks watertight and in perfectly safe condition for carrying liquid cargo. After the periodical inspection, and the special one of Capt. Auld, in August, 1891, which he says was thorough, and showed the between-decks to be well caulked and tight, the JDunbritton sailed from Cardiff to Mahé, in the Seychelles Islands, with a cargo of coal, and thence in ballast to Colombo. On the voyage from Mahé to Colombo, the vessel was carefully prepared for taking in the new cargo. The inside of the ship was thoroughly washed and painted, and particular care was taken to see that the between-decks was tight. A thorough examination was made of this deck, and the carpenter went carefully over it at the time the deck was wet down in washing the ship, and caulked every place which showed any signs of leaking or wearing away of the pitch and oakum in the «earns. In the between-decks there are several ballast hatches, four of them aft of the after hatch. They are apertures cut in the deck planking, two of them 2x3 feet, and the two others 4x8 feet. The portions of plank thus cut out of each hatch are edge-bolted together, and provided with a ring for lifting. They fit back as a hatch cover into the place from which they were removed, resting on the deck beams. These hatches have no coamings. It is not usual to have them around ballast hatches. They were off when the* plumbago was being stowed, were replaced before the oil was stowred, and,
In the nature of things, all this testimony as to inspection and caulking comes from the ship, but it is inherently probable. It is to be supposed that ship’s officers who are about to load liquid cargo over dry make some effort to ascertain if the deck between is tight or not, and that subordinates who are ordered to caulk seams obey orders. The assumption may not be strong enough to take the place of proof; hut, Avhen officers and crew testify directly and positively to the facts, their evidence is not to he rejected as of no weight merely because the witnesses come from the ship. Before their uncontradicted evidence will be thus disregarded, there must be satisfactory proof of some other fact or facts inconsistent with their story. Such proof, the libelants contend, is furnished by their witnesses, who describe the condition of affairs in the between-decks and below it when the Dunbritton arrived in New York. The question, however, does not lie simply between those on the ship testifying that the decks were tight, and uncontradicted independent witnesses testifying that, they had leaked. 'The claimants produced many witnesses, quite as independent of personal bias or interest as were the libelants', who testified positively that no oil had leaked through the between-decks. Of the libelants’ witnesses on this branch of the case, Keegan, a clerk for libelants Darragh & Small, testified quite freely to oil running through lióles in the deck anti dripping from the ballast hatches; bub he locates the place between ¡he main and after hatebu 3 (where, indeed, no oil was stowed), says that the cargo beneath was bags, and hales of coir, and admits that he did not go aft of the after hatch, but stood on bales in the after hatch, and sounded from that position tiie casks of oil, not then removed from (heir place of stowage. As proof of any leak in the seams of the after between-decks, his testimony is of no value. Knapp, a-clerk for libelants Knudson, Paterson & do., testified that he saw not only the dirty between-decks where the packages of oil liad been leaking, but also plumbago, 200 barrels of it, lying underneath the between-decks, ¡ill covered by cocoa nut oil. The weight to he given to this statement becomes apparentt when tint witness goes on to say that he was only twice below the main deck, the first time before any of the after lower hold had been discharged, the second time after it luid all been discharged; that on the first occasion he did not go below the behveen-ileeks at all, but looked at the plumbago stowed below from the after hatch. It is difficult to see, if the cargo in the lower hold had not been touched at that time, and came,as he says, within two feet of the under part of the between-decks, how he could see the condition of affairs under the between-decks except in the immediate vicinity of the hatch itself. lie says there was plenty of light to see there, and speaks of two ballast hatches being off, but subsequently confines his positive statement
When all this evidence is compared with that produced on the other side, notably the testimony of .Nelson, the stevedore, who himself removed the upper tiers of the plumbago stowed in the after hold (a job which required him to work so close to the between-decks that his head came frequently into contact with its underside), — testimony supported by that of others whose opportunities for examination were better and more frequent than those of libelants’ witnesses, — and when the positive evidence from the ship as to inspection and caulking of the between-decks is thrown into the scales, We are satisfied that the clear preponderance of proof is against the proposition that the oil which damaged the plumbago leaked through the between-decks, and, that being so, have reached the conclusion that the damage was the result of the irruption of sea water through the broken ventilators, a sea peril for which the ship is not responsible.
Some portion'of the plumbago, however, sustained oil damage under circumstances which lead to a different conclusion. The between-deck hatches were not on during the voyage, being left off for purposes of ventilation. From the bottom of the ship, plumbago was stowed in the square of the after hatch up to the coamings in the between-decks; and on top of the plumbago in the after hatch were bales of fiber extending upward to the after hatch of the spar deck. The between-deck packages of oil were stowed from near the lazarette np to the coaming of the -after hatch amidships. On the port side they extended to within about two feet abaft the coaming,
The libelants Darragh & Smail claim for oil damage to mats and matting, coir yarn, and coir fiber. Of their consignment, 1,000 rolls of matting, 1,023 bales of coir yarn, and 311 bundles of mats were stowed in the between-decks forward of the after hatch. Manifestly, since there was no oil stowed in the between-decks except aft of the after hatch, this damage could be caused only in one or other of two ways. Either portions of this dry cargo were stowed next to the oil barrels, or on top of them, with insufficient dunnage to protect them from contact with any oil which might leak or spurt out, or else oil reached the dry cargo by flowing over the deck. It is unnecessary to discuss the evidence as to dunnage. The turmeric and nux which were stowed on top of the oil packages are out of the case; and, as to all the rest of the between-deck cargo, there is a clear preponderance of proof that the dunnage was proper arid sufficient to protect it, not only against contact with the oil packages,.
As to the dholls of coir a different question arises. The charter party provides that the ship shall “load for the charterers a full and complete cargo of lawful merchandise, including coeoanut oil in casks (‘broken stowage,’ at charterers’ option, to the extent of 10 per cent., to consist of coir dholls, of from four to six English pounds weight each),” etc. Darragli & Bmail shipped 10,721 dholls, which were stowed promiscuously with other cargo in all parts of the ship. Borne 9,000 dholls were found to be damaged by oil, and a part of these by sea water as well. Undoubtedly, the damage to many of these was caused in the same way as was the damage to the plumbago, and, for damage thus caused, the ship is not responsible. But the proof indicates quite clearly that, all of the dholls which were found to be oil-damaged were not thus affected only because of the presence of the water taken in through the ventilator holes; some of the dholls were exposed directly to leakage. This technical phrase “broken stowage” is not defined in any authorities to which we are referred, but the evidence of the experts, although not in all particulars in full accord, is sufficiently explicit to enable us to construe that phrase for the purposes of this case. All agree that packages taken as broken stowage may be stowed anywhere where diere is a vacancy for them. Small packages thus taken are put inio places where there are vacant: spaces left in stowing casks and bales and bags, and may be put between clean cases of anything. There is some conflict in the expert testimony as to the amount of risk which the shipper takes oí damage to cargo thus shipped. It is reasonable to assume that, as he pays but half rates, he takes some risk; but to what'extent the ship should protect broken stowage from contact with other cargo is not entirely clear upon the proof, inasmuch, however, as there is no claim made against the Dunbritton for any other damage to the dholls than that from oil, it is not necessary to determine any general measure of obligation. We are of the opinion that, when packages susceptible to damage from oil are taken simply as broken stowage, the ship is not entitled to use them as dunnage for casks of oil, which are known to be so liable to leak as are those which come from Ceylon, nor to stow them in immediate physical contact with such casks where it is almost in
The expert evidence introduced by libelants in support of their contention that the Dunbritton was improperly loaded, and for that reason unstable, has not been overlooked. It is sufficient to say that on that point the preponderance of evidence is with the ship.
The decree of the district court is reversed, and the cause remitted to that court, with instructions to decree for the libelants for the damage to those packages for which the above opinion indicates that the ship is responsible, with costs of this court only.