Kainer v. The Bergenseren, 36 F. 700

Kainer v. The Bergenseren

36 F. 700 | S.D.N.Y. | 1888

BROWN, J.,

(after dating the fads as above.) The evidence is not sufficient to determine with certainty how the water got into the tank. If it came from the fire-room, through the rivet-hole, it could not have risen more than about 17 inches; while the ship’s protest, made at Port de Paix, describes the tank as “filled with sea water,”(an exaggeration, doubtless;) and the subsequent protest made in New York says that, while discharging cargo, “about 3 feet of water was found in the ballast tank.” The first engineer testifies, moreover, that before arrival at Port de Paix the water in the fire-room had been all pumped out; and that there was then no water there except between the ship’s ribs. If the water entered the tank through the rivet-hole, it should have been discharged by the same aperture, as the fire-room was pumped out before reaching Port de Paix. The only answer to this is the possibility that its egress may have got choked up. The libelant contends, in view of this circumstance, that the more probable cause is that the cock by which the ballast tank was supplied with water had been more or less opened by accident, negligence, or mistake. This cock was in the engine department, below the water-line. It ran through the sides of the ship, and w'as turned bj a crank. A pipe led thence through the iron bulk-head down beneath the floor of the ballast tank into a small box, known as the “rose-box,” between the ribs of the ship, where it ended. This box was perforated with holes, to make it serve as a strainer, and was fastened by angle-irons on the outside, riveted into the bulk-head. It was one of these rivet-holes that was afterwards found empty. Water coming through the pipe and rose-box would make its way up through the floor of the tank, which was not water-tight, nor designed to be so. The second engineer testifies that at Port de Paix he examined the pipes or valves leading to the water tank, and that, so far as he knew, they were all closed. The first engineer says that at Port de Paix they were closed, “but whether they had been opened, or whether they had been leaking, it was not easy to tell.” The engineer’s log says the cock may have sprung a leak, or might have been opened by somebody. Assuming, however, that the water entered through the empty rivet-hole, it is impossible not to treat this as a latent defect, considering that the cargo was stowed so low, and upon a floor not water-tight, where, in case of water coming into the engine compartment, it was likely to run into the tank, and injure the goods stowed there. The subsequent examination showed no evidences of straining; nor is there any testimony that the weather was extraordinary. The first protest stated that “nothing unusual occurred;” and the master, in his subsequent testimony, says that “the stoppage of the machinery was the only thing extraordinary.” I do not find any legal principle upon which the risk of such a defective riveting should be thrown upon the goods, and not upon the ship. Work v. Leathers, 97 U. S. 379; The Edwin I. Morrison, 27 Fed. Rep. 136, 141, and cases there cited; The Rover, 33 Fed. Rep. 515. Nor is the evidence sufficient to show that the water in the fire-room is attributable to “perils of the seas.” On the 28th, according to the engineer’s log, the engine was stopped for 5-1 hours, to pack the steam gauge, which had sprung a leak; on the following day, for H hours, *702in order to fasten the loosened seat of tbe feed-pump; on the 30th the pumps became foul, and the valves turned around; on the 29th the ship .was rolling heavily, but no water, as the engineer says, was taken in from above. It rose two inches above the floor, as he says, “in consequence of the inexperience of the second engineer,” who did not turn off the feed-cocks, as he should have done, when the engine stopped. On the 30th, or subsequently, some water came in from above through the open sky-lights; but it is plain from the engineer’s testimony that this was not the .principal cause of the accumulation of water below- Even if the repacking of the steam-gauge and repair of the pumps could be held to have been made necessary by sea perils, there is no reason to suppose that with reasonable care and skill those repairs need to have been attended by any such accumulation of water. The engineer’s testimony clearly shows, as it seems to me, that this accumulation was caused through the mistake and inexperience of the second engineer, who before that trip had been only a fireman. He says that he had not been fully instructed. To bring the case within the excuse of sea perils, the ship was bound to show that this accumulation of water could not have been avoided by the use of reasonable skill and diligence. This is not made out, and the vessel must therefore, on both grounds, be held to the responsibility that the law casts upon her. Decree for the libelants, with costs.