285 F. 640 | S.D.N.Y. | 1922
On February 15, 1917, the libelant shipped on the steamer Charlton Hall 2,000 bags of malt in good order (comprising two shipments of 1,000 bags each), and conditioned for delivery in like condition at Rio de Janeiro. On arrival of the malt at the port of delivery it was in a damaged condition, quantities having come in contact en route with kerosene oil and other quantities with salt water in the hold. The steamship carried a general cargo of merchandise in addition to the malt, including fuel and lubricating oil in drums, which was stowed between deck in No. 3 hold. During the trip the vessel encountered heavy weather, which continued for two days; the wind at times blowing at the rate of 60 miles an hour. She returned to Pernambuco, after passing that port, to make necessary repairs to her engine and condenser, though they are not shown to have been made necessary because of the severe weather, which strained the vessel and not improbably resulted in cracking the water pipe with the result that the auantity of malt stowed in the shelter deck was wetted by salt water and the quantity stowed between deck injured by oil from leakage in the drums.
Importance is attached by claimant to The Exe, 57 Fed. 399, 6 C. C. A. 410, where a stanchion gave way to the pressure of a light cargo, when prior thereto it had resisted the pressure of heavier cargo. In that case, however, it appeared that a screw bolt holding the stanchion in place was broken in two, while another was loose, and the tea boxes around the stanchion were battered and damaged. The voyage lasted three months, and the log showed rolling and pitching, and shipping of water on deck fore and aft, on various occasions during the long voyage. In the present case neither the deck log nor the engine room log was produced, and the first mate, testifying to the severity of the storm, refreshed his recollection in relation thereto from a protest made after the steamship returned to New York. Moreover, the ship-was not damaged in consequence of the gale, and the cargo does not appear to have been shifted. Inasmuch as the gale was not sufficiently severe to have proximately caused the damage, it is quite believable that the stowage of the malt was improper and faulty. In 36 Cyc. pp. 251, 252, the rule is stated as follows:
“Different parts of the cargo must be stowed so as not unnecessarily to injure one another; * * * and where the vessel carried different kinds of cargo, which are liable to damage each other, special care must he takes;' that they be so stowed that damage shall not result.”
This rule I think applies to the facts which we are here considering. It is true that machinery was placed in No. 3 hold between the malt
A decree may be entered for libelant, with costs.
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