279 F. 935 | 5th Cir. | 1922
The steamship Elvaston was chartered to carry from Mobile, Ala., to Buenos Aires Roads for orders “a full aid complete cargo oil pitch pine sawn.timber, * * * not exceeding what she may reasonably stow and carry over and above her tackle, apparel, provisions, and furniture.” The charter party contained the following provisions:
“The master shall give reasonable notice of cargo required, and should he order more cargo alongside than can be taken on hoard the expense of returning the same to the owners or the wharf to be borne by the owners of the steamer. * *. * Charterers or their agents to provide and pay a Steve-dire to do the stowing of the cargo under the supervision of the master. * * * Charterers’ responsibility under this charter to cease as soon as the cargo is shipped and the bills of lading signed.”
The vessel received, and its master issued a bill of lading for, 2,932,-301 feet of pitch pine lumber, 2,325,220 feet of which was under deck and the remainder was on deck. By the terms of the bill of lading:
“Jettison, Are, * * * strandings, accidents, faults, or errors in navigation or in the management of said steamer, accidents to hull, * * * or latent defects therein, although existing at the time of shipment, and although occasioned by the faults or errors in judgment of the pilot, * * * or other persons in navigation or in the management of the steamer, * * * always mutually excepted.”
“6:50 a. in. engines rang ‘Stand by.’ 7 a. m. Oast off from wharf and backed into channel; steamer having port list, stopped and put steamer ¡mead; with bow against quay and tug pulling on starboard quarter, steamer listed to starboard; opened No. 5 tank to stiffen steamer; vessel held in position by tug and engines worked as required. When tank filled, list increased, and on sounding round found a considerable quantity of water in after bilge starboard side (pumped out, but water still making; entries engineer’s log). Came to conclusion No. 5 tank leaking as bilge previously being reported dry; hove ship to quay and made fast.”
‘In- order to ascertain the cause of list and excessive draft, we sounded all ta iks, bilges, ánd peaks, and found as follows: Fore peak dry; No. 1 tank dry; No. 2 tank full; No. 3 tank full; No. 4 tank full; No. 5 tank containing 3 ft. 1 in. of water. The bilges were all dry, except in starboard No. 5 bilge we found 1 ft. 5 in. of water (for full particulars see chief officer’s log book).
“We recommend that No. 5 tank and bilge be pumped dry and sufficient deck cargo be discharged to bring steamer to her proper draft and putting her in a se iworthy condition.”
The protest contained the following:
“That on the 26th of October, with the pilot on board and with two tugboats alongside, the steamer sailed from the wharf to enter the canal. That urder those circumstances the steamer listed towards the port side, and, when giving steam ahead, the prow struck against the breastwork. That, upon the tugboat lugging on the starboard quarter, the steamer then listed stirboard. That in spite of having worked the tugboat and the engines, the listing increased, and, upon sounding the tanks, a great quantity of water wis found in the bilge of No. 5; the conclusion being arrived at that No. 5 had a leakage. That, under those circumstances, it was decided to turn the stiamer back to the wharf, at which she was again moored. That' it was tfceij decided to make a survey, and in the afternoon the steamer was taken to another place awaiting survey to be made. That, early the following day, tie surveyors appointed by Lloyd’s agent met, who advised drying out tank No. 5 by means of the pumps, and that part of the cargo should be discharged in order to leave the steamer drawing a draft which would be convenient ir the case. That, consequently, immediately began to unlash the cargo on deck, beginning discharge of the lumber, first aft and then forward.”
The supplemental protest contained the following:
“That the cause of the listing was the great leakage of water produced in the tank No. 5, as, upon sounding the bilges alongside of said tank, a great quantity of water was found.”
Certainly those on board the vessel had a better opportunity to know whether it did or did not run aground before the listing occurred than a person who saw it from the land and testified about what happened to it 10 minutes after it left the dock. It may be inferred that, if a grounding or stranding occurred before the vessel listed, mention of fiat fact would have been made in the log and in the protests. It is t) be noted that the protest mentions a later grounding, which caused ro damage, and did not appreciably interrupt the voyage. One on shore, who was observing the vessel when she was being pulled out into the channel, may have mistakenly concluded that she ran aground before she listed. There is nothing to indicate that any one on board attributed the leaking of one of the ballast tanks to damage caused by a grounding or stranding of the vessel after it left the dock, and before part of its deck load was discharged.
In view of the circumstances mentioned, Mr. Walsh’s version of the incident, based on what he casually saw from shore when the vessel ivas a considerable distance from him, well might be considered as not convincing. A phase of the evidence adduced indicated that the vessel listed, not as a result of a stranding, which caused a ballast tank to leak, but because one of its ballast tanks was leaking when the vessel first broke ground. But it is not necessary to determine whether the
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“Duties remain to be performed by the master or the owner, after the vessel is disabled. His obligation of safe custody, duo transport, and right delivery still continues, and is by no means discharged or lessened while it appears that the goods have not perished in the disaster. Nothing will excuse the carrier under such circumstances but the causes stipulated in the bill of lading, and ho is still hound by virtue of his original contract, to use his utmost exertions to transport or send forward the goods to the port of delivery. Such carriers may be answerable for the goods in case of loss or injury, even though no actual blame can ho imputed to them; and after’the loss or injury is established the burden lies upon the respondent to show that it was occasioned by one of the perils excepted in the contract of shipment or' bill of lading.”
*940 “Because I saw the captain, and he did not want it put hack aboard the vessel. He told me to take it off and find a place to put it.”
There is nothing to indicate that the master made any effort to communicate with the shipper of the lumber before it was taken to the place where it was burnt up, or that the master did not know or could net ascertain the shipper’s address. The evidence adduced was consistent with the conclusion that the lumber which was destroyed by fire was left at the loading port without any necessity or reasonable excuse for doing so. At any rate, the claimant did not prove a legal excuse for the failure to carry to its destination the part of the cargo which was destroyed by fire after it was discharged from the vessel, to be stored, uninsured, at an isolated place remote from means of protection against fire. In the absence of such proof, the vessel is to be held to its liability as carrier.
The claim made in the libel is for the value of less lumber than the evidence showed was destroyed by fire. The conclusion is that the appellant is entitled to recover the proved value of the amount of lumber which the libel alleged was short-delivered at Buenos Aires. The decree dismissing the libel is reversed, with direction that a decree be entered in favor of the libelant for the above-indicated amount, with in:erest and costs.
Reversed.
On Motion for Modification of Decree.
In behalf of the appellees it is suggested that the decree should be modified by striking out the part of it which requires the payment of interest. The suggestion is based on the absence of evidence as to the rate of interest prevailing at Buenos Aires, the place of delivery under the contract of carriage. If is contended that the right of action enforced did not arise until the ship reached Buenos A res and, failed to deliver part of the lumber shipped, and that, if inte *est on the amount of the loss then disclosed was allowable, only the proved rate prevailing at the place of destination properly could be ac opted.