Jamison v. New York & P. R. S. S. Co.

241 F. 389 | S.D.N.Y. | 1917

LEARNED HAND, .District Judge

(after stating the facts as above). [1] The first and most important point is whether or not the ship is relieved under the Harter Act. The case falls either under The Wildcroft, 201 U. S. 378, 26 Sup. Ct. 467, 50 L. Ed. 794, or The Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748, and depends upon whether the ship has discharged the burden of proof that the damage did not arise because of her unseawortliiness. The facts in The Wildcroft, supra, were very like those in the case at bar, and the vessel was exonerated. She carne into her dock at Philadelphia, and her cargo, which happened to be of sugar, as in this case, was damaged by fresh water, but in that case it was shown that the seacock for filling the engine room tank was open at 10 o’clock in the morning and was kept open for 3 hours, and that directly after the closing of the seacock water to a considerable depth was reported in holds 3 and 4.

There are several reasons in the case at bar for refusing to accept the explanation offered by the ship. In the first place, no one found any of the necessary valves open. When Weston looked at them, they had been closed, and when he questioned Hall, Hall said that he had not left them open. In the second place, we have the soundings on the 24th and 25th. The log shows that the ship made fast alongside of Pier 35 of the Atlantic Basin at 8 a. m. on the 23d, and presumably the engines were stopped at once. On the morning of the 24th the port side of the after hatch showed no water whatever, and at 7 o’clock on the morning of the 25th only 5 inches had gathered. It is quite true that the entry for the 25th shows changes; but on-scrutiny it is quite apparent, that the second entry, marked, “Wednesday, the 24th,” was a mistake, and was intended to cover the 25th. The contents of the two entries shows that they were consecutive, and that the ship began discharging her sugar on the morning of the 24th and finished on the afternoon of the next day. It is riot necessary to go over all the entries of that day, but an inspection will certainly show that I am right. ■ If the ship’s story is true, the bilges began filling through the pipe on the morning of the 23d and if 56 inches of water at any time had gathered in the port bilge of the after hatch, it would have shown by the soundings on the 24th, and by 7 a. m. on the 25th.

It is true that there is force in the explanation offered, as the single adequate suggestion, but since, it breaks down it will not serve. The shipper need not show how the damage occurred; that is the ship’s duty, and mere damage by seawater will not alone serve to exonerate the ship, even if it remains totally unexplained. The Folmina, supra. I conclude, therefore, that the ship has failed to show adequately any cause for the entrance of the seawater, which is equivalent to saying that she has not shown seaworthiness.

[2] The remaining questions arise under the exception of the seventh article of the bill of lading, which provides, first, that notice of any claim must be given before the goods are removed from the ship’s dock, and that the claim with full particulars must be given within 5 days. Immediate notice of the claim was certainly given by Labonte to Maloney, who was present in court, and who did not deny the conversation. At that time the sugar lay alongside the ship in lighters; at least it was not shown to have been removed from the ship’s side, which for this purpose is the equivalent of the dock. Maloney, who was in charge, certainly accepted the notice when it was given, and if the lighters were not alongside he waived the irregularity by telling ,the libelant to send in its claim.

[3] The more difficult question is the excuse for failure to give the claim with particulars within 5 days. Such provisions are legal. The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; The Persiana, 185 Fed. 396, 107 C. C. A. 416; The Westminster, 127 Fed. 680, 62 C. C. A. 406. However, it has always been recognized that they should receive a reasonable interpretation. It was impossible to have landed the whole cargo at some other pier, to have carried it to the refinery, and to have put it all through the polarization test within 5 days, and therefore the clause could not be literally fulfilled. Under such circumstances it must be given as reasonable and as near an application as the facts warrant. The libelant was, of course, bound to minimize' its damages, and if it had landed the whole cargo, as it would have had to do, to obtain the particulars, it must have disregarded that duty. Certainly, when literal compliance was impossible, the true test must be such speed as was consistent with its other duty to the ship. The evidence shows that it acted as speedily as it could, having due regard to economy in the handling of the cargo at that time and place. That was the only compliance possible, unless the clause is to be taken to constrain the shipper to an impossibility.

The libelant may take its decree, and the cross-libel will be dismissed.