1 F. 874 | S.D.N.Y. | 1880
This is a suit to recover damages for injury done to bales of empty grain bags, shipped by the libellant at Liverpool for New York, under a bill of lading which stipulated in the usual form for their delivery in good order, “the perils of the sea” excepted. The bark was put up as a general ship. Her cargo consisted of 323 tierces and 40 casks of soda ash, 300 drums of caustic soda, 265 tierces of bleaching powder, 1,850 sacks of salt, 10,000 fire-brick, 1,703 empty petroleum barrels, 840 boxes of cutch, and 110 bales of bags, of which 67 were shipped by the libellant. There was some other miscellaneous cargo, of no great amount, which it is unnecessary to mention in detail. The bark is what is called an open-beam vessel, having two decks, the lower deck being laid only for a space about 25 feet long in the bow and about 30 feet long in the after-part of the vessel. Upon the beams
The vessel left Liverpool on the third day of November, 1877, and did not arrive at New York-until the eighteenth day of January, 1878. She had a very tempestuous voyage, was obliged to put into Holyhead and remain there about three -weeks, and on the tenth of January she encountered a gale of great violence, which lasted throe days, during which she was, for a short time, on her beam ends, and took in some water, which the pumps could not reach. After this gale the vessel was somewhat listed to port. Some of the casks of bleaching powder and soda ash were broken. Upon arrival tlie bales of bags were delivered in good order except some 32, which were corroded and eaten on the outside so that the fabric crumbled and became dust. This is the effect upon such fabrics of the fumes of bleaching powders, which consist largely of the chloride of lime. The evidence shows clearly that the bales of bags did not come in direct contact with the bleaching powders, but that the injury was done by the fumes arising from them. It is proved, also, that such fumes, dangerous to such fabrics as bags, arise from the bleaching powders wherever the powders are free — that is, not enclosed in casks — even without the powders being wet. It further appears that these bleaching powders have a destructive effect upon the hoops of the casks in which they are enclosed, having a tendency to cause the casks to fall apart.
It was not shown, by any direct evidence, in what part of the ship the damaged bags were stowed; whether they were those stowed on the temporary deck above the bleaching powders, or aft on the permanent deck. It is the theory of the claimants that the fumes in the hold of a ship penetrate into all parts of the ship, and that they are especially strong in the after-part. In the absence of proof, however, which it would seem that the vessel could easily have produced, of the place from which the damaged bags came, I am unable to believe that these dangerous and corrosive fumes passed up, by and around these bales of bags on the temporary deck immediately above, without injuring them, to attack with accumulated destructive force other bales at a greater distance. I think, although the claimant’s theory has some support in the opinions of some of the witnesses, the weight of evidence is that the danger of injury from bleaching powders depends in a great manner on the distance between them and the articles liable to be injured, and that it must be taken as proved that the damaged bags were those immediately above the bleaching powders on the temporary deck.
It is also clearly proved that the carrying of bleaching powders and soda ash in the same vessel with bales of bags, .as parts of a general cargo, is a well-established usage of the trade between Liverpool and New York, and that the usage extends to the use of open-beamed vessels, like this bark, for the carriage of such general cargoes, including these articles.
It is claimed, on the part of the libellant, that the injury was •caused by the stowing of the bales of bags too near the bleaching powders, and upon this temporary and loosely laid deck,
Both parties have undertaken to prove a usage — the libellant, that the usage of the trade requires a greater separation between bleaching powders and bales of bags or similar fabrics; and the claimants, that tho usage of the trade is to stow the hales of'bags as near to or nearer to the bleaching powders than in this case, and without interposing any more effective harrier between them. But, after the examination of a very large number of witnesses, the result is that there is no usual mode of stowage in this respect, but that soiné masters and some stevedores take more and some take less precautions against this particular danger; that in steamers, which are built in compartments and afford much greater facilities for separating cargo, the bleaching powders are carried in separate compartments from, bales of bags and similar goods liable to be injured by the fumes; that in sailing ships the bleaching powders are usually carried in the lower hold, and the hags generally, but not always, between decks, but- that on this particular point of stowing the hags on a temporary deck, immediately above the bleaching powders, there is no settled usage. Although it appears that in many cases they have been stowed in positions of equal or greater exposure, yet many careful persons place them further away, or as far away as possible consistent with the proper stowage in other respects and the trim of the ship.
It is suggested that the stowage that was made was necessary to the trim of the ship, but this is not proved. There is no testimony on the subject. It is, doubtless, true that in a general ship no particular shipper can demand that his goods be put in a particular place, or in the very safest place for them. The stowage must necessarily have reference to the
Decree for libellant, with costs, and a reference to compute damages.