287 F. 674 | 2d Cir. | 1923
(after stating the facts as above). The question to be determined is whether the vessel was seaworthy at the commencement of the voyage. As preliminary to the- determination of that question, the appellant suggests another. It argues that, as the vessel and her owners were private carriers the burden was on the libelant to make affirmative proof of negligence in failing to make the vessel seaworthy at the commencement of the voyage, and that libelant should prove conclusively that the alleged damage was the direct result, of acts for which the vessel and her owners were responsible by the terms of the charter. The libelant, while not conceding that the vessel was a private carrier, contends that the appellant’s conception of the law of the case is erroneous, and that, even if it should be held that the vessel was a private carrier, she would nevertheless be bound to show that she was seaworthy in all respects at the commencement of the voyage; and the libelant further claims that it really is a matter of no consequence in this case whether the vessel was a private or a common carrier, as the evidence as to her unseaworthiness is ample to sustain the burden if such burden existed.
It is our opinion that the vessel is not to be regarded as a common carrier, inasmuch as the libelant occupied the whole ship. By the terms of the charter party the libelant was “to provide and furnish the said vessel with a full and complete cargo,” and the owner and claimant agreed “on the freighting and chartering of the whole of the'said vessel (with the exception of the cabin and necessary room for the crew, and storage of provisions, sails, and cables), or sufficient room for the cargo hereinafter mentioned” unto the libelant. This was sufficient to prevent the vessel from being considered a common carrier. The Fri, 154 Fed. 333, 83 C. C. A. 205; The Rokeby (D. C.) 202 Fed. 322.
“That tlie implied warranty of seaworthiness is applicable to all carriers, whether common carriers or otherwise.”
And in The Wildcroft, 201 U. S. 378, 388, 26 Sup. Ct. 467, 469 (50 L. Ed. 794), in which case, as in this, the ship was chartered for a full cargo, the court, in speaking of the obligation of making the ship seaworthy, said: 1
“The discharge of this duty is not left to any presumption, in the absence of proof. It is the condition precedent, compliance with which is required of the vessel owner in order to give him the benefit of the immunity afforded by the act. * * * It is not a case where there is either the necessity or propriety of resorting to presumptions. It is only when he has discharged the burden which the law imposes upon him, and shown that he has furnished a vessel fit and seaworthy, or has used due diligence to that end, that the law relieves him of the liability which he would otherwise incur. * * * ”
There are other cases in which the same rule is laid down. See The Benjamin Noble, 244 Fed. 95, 156 C. C. A. 523; The C. R. Sheffer, 249 Fed. 600, 601, 161 C. C. A. 526.
This brings us to the consideration of the question whether the vessel was seaworthy at the commencement of her voyage. Seaworthiness depends, not only upon the vessel being staunch and fit to meet the perils of the sea, but upon its being fit to transport the particular cargó which it is to carry. Unless it is able to transport that it is not seaworthy. And it may be seaworthy as to one sort of cargo and unseaworthy as to another. The Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65; The Maumee (D. C.) 260 Fed. 862, 869; The Jeanie, 236 Fed. 463, 468, 149 C. C. A. 515; The Thames, 61 Fed. 1014, 10 C. C. A. 232.
The cargo which this vessel was to carry consisted, as we have seen, of 32,809 bags of linseed. To make a vessel seaworthy for the carriage of bags of linseed which were susceptible to damage by water, it is essential that the ship should be provided with adequate dunnage to keep the cargo from contact with any portion of the boat where water may be reasonably expected to appear during the voyage. The Aspasia (D. C.) 79 Fed. 91; The Nith (D. C.) 36 Fed. 86. There must be sufficient dunnage in the bilges to protect the cargo in that part when the ship rolls. The Sloga, 10 Ben. 315, 22 Fed. Cas. 345, No. 12,955. So a vessel must be lined inside, if the cargo is of such a character as to require lining to protect it. Dene Shipping Co. v. Tweedie Trading Co., 143 Fed. 854, 74 C. C. A. 606. And the dunnage must be sufficient to prevent damage to the cargo from leakage, where the vessel is likely to leak on the voyage. The William Power (D. C.) 131 Fed. 136.
The vessel belonged to a class of boats constructed for the carriage of coal, lumber, and phosphate rock. Prior to the purchase of
The vessel was a four-masked wooden schooner. She had three decks, an extended poop deck, a main deck, and a ’tween-deck. Her length was 218 feet 6 inches, her breadth 41 feet 9 inches, and her depth 25 feet 6 inches. The depth of her hold from the main deck to the ceiling was 19 feet 11 inches; from the poop deck 24 feet 5 inches. Beneath her main deck she had 53 crossbeams, 10xl2’s. Beneath her ’tween-deck, she had 50 crossbeams, l'2xl2’s. The distance from center to center of these beams was 4 feet.
On the voyage from the United States to South America, which immediately preceded the voyage now in question, from Buenos Aires to New York, the vessel encountered a hurricane, and the previously damaged condition of the beams was aggravated, and when the ship reached Buenos Aires 4 or 5 of the beams, which ran the entire length of the vessel, were broken. But before she reached Buenos Aires, and while she was at Montevideo, she was placed in dry dock, and the surveyor ordered the broken timbers taken out; but this was not done, and in fact nothing whatever was done to them. There can be no doubt that the broken condition of the beams weakened the condition of the sides of the vessel amidships, and that the vessel leaked amidships, and was rendered unseaworthy for the carriage of dry and perishable cargo. We are also satisfied that the existing unseaworthiness of the vessel, when she was loaded at Buenos Aires, was materially aggravated by the character of the dunnage installed in the ship. The dunnage used was clearly insufficient. The bags of linseed should not have been permitted to come in contact with the skin of the ship.
This suit was begun November 13, 1918. It has been pending more than four years. During this long period the libelant has been kept out of a considerable sum of money, and as we think without reasonable excuse. Rule 27, subds. 2 and 3 (285 Fed. xiv) of the Rules .of this Court appear to us applicable, and libelant is entitled to damages, in addition to interest.
Decree affirmed, with interest and costs, and 5 per cent, damages.
