296 F. 893 | 5th Cir. | 1924
This is an appeal in admiralty, by the claimant of the sailing vessel Sylfid, from a decree in favor of the owner of the cargo. The cargo consisted of oil. During the voyage, sea water came into contact with and corroded some of the tin containers of the oil, and thus caused a leakage.
The appellant pleaded: (1) That the claim was stale; and (2) that' the vessel was seaworthy. On the merits, the answer avers that the damage was occasioned by a heavy gale at sea, which caused the waves to sweep the deck .of the vessel and to loosen the tarpaulins of the main and after hatches, with the result that sea water got into' the cargo through the hatches.
On December 6, 1915, the Sylfid sailed from Port Arthur, Tex., and in March and April, 1916, discharged her cargo at Cape Town and Port Elizabeth, South Africa. , The libel was not .filed until June 6, 1918. In November and December, 1916, the Sylfid was at Sabine, Tex., and from July until September 12, 1917, was at New Orleans. This vessel was owned by one Kordelin and his partners from 1907 until January 9, 1917, when Kordelin purchased the shares of the other owners, and transferred the title to the appellant, O. Yr Tonnage, A. B., a corporation, of which he became one of the managers. When the libel was filed, the title was in this corporation.
From June, 1916, until March, 1917, appellee was corresponding with the agents of the owners seeking to secure a settlement of its claim. On September^, 1916, agents of the appellant offered a ¡charter, but on condition that the appellee would waive its claim. After it became apparent that an amicable adjustment of the claim could n.ot be made, the appellee repeatedly inquired of the Sylfid’s agents as to
The Sylfid was a wooden sailing vessel built in 1884, and had a wooden deck which was mounted on iron plates. The master testified that, before the vessel was loaded, one of Lloyds’-surveyors required the middle, the port side, and the bow of the deck to be caulked, and that before she sailed the surveyor issued a certificate of seaworthiness and of proper stowage of cargo; that before the voyage was begun all the hatches were put'on and covered with tarpaulins, which were securely fastened. The master, first mate, and the boatswain testified that on the evening of the day of sailing the vessel encountered a gale of such violence as that the crew were unable to take in sail; that the ve.ssel was thrown on her beam, and the waves lifted and loosened the tarpaulins on the main and after hatches. An entry in the log book is as follows:
“About 8 o’clock the wind began to increase. Made fast all the sail we possibly could. At 10 o’clock called out all the hands to stand by. The ship started to keel over to starboard side, so that the rail was under the water, and taking heavy seas all over, so that the starboard side of No. 2 hatch got loose and the water poured into the hold. With great difficulty and risk of life we secured the hatch fast again. At the same time the after hatches gave way.”
Without further incident the vessel arrived at the ports of destination. The usual hatch and cargo surveys were made, but there was no survey of the vessel for seaworthiness. When the hatches were opened it was found that the cargo reached up to the ceiling and to the hatch covers. The part of the cargo that was damaged was on the starboard side, where traces of salt water were discovered on the iron plates under the wooden deck. There was evidence for the appellee that some of the planking appeared to have been recently laid, and old planking re-caulked on the starboard side and in close proximity to the damaged cargo. The sawdust covering on top of the cases of oil, immediately under the hatch covers, was undisturbed, and there was no trace of salt water anywhere within the square of the hatches.
The decree is affirmed.