294 F. 978 | W.D. Wash. | 1924
Lead Opinion
This case was before the court on cxcepi:ioi~s to the answer. 284 Fed. 160. The court there said:
"The answer is Iiarren of a~y aUe~ation a~ to the seaworthine~n of the ~hip. En the ebsence of such allegation, the exempUon clause that the responlcnt sliohid not be liable for `heat damages' is immaterial. Jt the vessel was seaworthy, the exemption is available, and the burden Is then on the shipper to show negligence, notwlthstanthiig seaworthiness."
An amci~dcd answer was flied, alleging seaworthiness. The case is now submitted upon the merits.
The respondent shows that the ship carrying the consignment is “the very highest type of freight vessel. She is above 12,000 tons dead weight, 14 knots speed, built in 1916.” At the time she left New York on the vdyage spoken of she was in general seaworthy condition, properly equipped, manned, and officered, and so continued ■ from port to port throughout the trip. The bill of lading evidencing the contract of shipment provides that the carrier shall not be liable for damages occasioned from heat. The general seaworthy condition of the ship is •established. «
“The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport.”- The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241.
In the Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65, the court said:
“The vessel must be able to transport the cargo which it is held, out as fit to carry, or it is not seaworthy in that respect.”
In that case perishable cargo — i. e., dressed beef — was shipped. The respondent knew the character of cargo when it accepted it, and the court held that refrigerator facilities to carry fresh meat into a hot climate were a part of the seaworthiness of the. ship, and that, when the refrigerator plant failed to function within three hours of sailing, a presumption of unseaworthiness, at the time of sailing would obtain. In the instant case there is no testimony that the character of the cargo in issue was Called to the attention of the ship, nor is it contended that special facilities for carrying the cargo are required.
Decree for respondents.
Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; The Henry B. Hyde, 90 Fed. 114, 32 C. C. A. 534; The Glenlochy (D. C.) 226 Fed. 971; The Dolbardorn Castle (D. C.) 212 Fed. 565.
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Rehearing
On Rehearing.
On January 11, 1923, this court denied the claim of the libelant for damages for delivery of cargo of candles in damaged condition, stating that “there is no testimony that the character of the cargo in issue was called to the attention of the shipper.”; it having been shown that the respondent vessel “was in general seaworthy condition, properly equipped, manned, and officered, and so continued from port to port throughout the trip.”
Proper stowage at the inception of the voyage not having been shown by the respondent, decree for libelant is directed.