The Citta di Palermo

226 F. 529 | 2d Cir. | 1915

LACOMBE, Circuit Judge.

[1] The opinion of the District Judge sets forth the facts most fully; it is unnecessary to repeat them here. His conclusions upon the whole case were:

“That claimant has failed, to prove that the rivets in. question were in good condition at the beginning of the voyage, or that their defective condition was latent. The claimant has also failed to prove that the hand pump, which was found in bad condition at the end of the voyage was in good condition when the voyage began.”

We think the condition of the pump is not a matter of importance. There was a sounding pipe, which was in working condition until it broke, after the leak had set the packages of hides afloat and the ship’s motion set them thrashing about in the forepeak. The pipe was sounded regularly and from practically nothing it suddenly showed a full forepeak. The damage was then done, the hides were thoroughly wetted. Had a powerful and efficient pump thereafter promptly emptied the compartment and kept it empty, they would nevertheless have rotted before reaching New York.

[2] On the other branch of the case we concur with Judge Veeder. The last time there was an opportunity thoroughly- to examine the rivets was when the Citta di Palermo was dry-docked in March, 1910, for her No. three inspection. We do not mean to intimate that, even under the severe requirements of the Supreme Court as laid down in The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644, The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181, and other well-known decisions, a vessel must be dry-docked before every voyage and every rivet be separately tested. It is sufficient now to hold that if claimant seeks to rely upon the proposition that there was a latent defect, which thorough and careful inspection could not detect, he must at least satisfy the court that the defect was of such a character.

In the case at bar there are two theories to account for the giving way of the rivets. The claimant insists that although sound and in seaworthy condition they were sheared off by the straining of the vessel in heavy s.eas. ‘ Libelant insists that they wer.e not sound and in seaworthy condition when the vessel sailed on this voyage. As there is no- direct testimony as to their condition at that time, the most that can be done is to infer their condition from available testimony. Of all the witnesses who examined the rivets at the end of the voyage, two called by libelant testified that both rivets were corroded in the counter sink down to a point. In view of the circumstances that none of the witnesses called by claimant made an equally close examination of these rivets, and that the rivets themselves were not produced nor the men who handled theiq when they were knocked out examined, the testimony of the two seems the more persuasive. As to the inspection in March, 1910, we have the general statement that a vessel’s “No. three survey” is the most rigorous of all. But there is nothing to show what actually took place on this particular survey; nothing to show that any one then inspected the rivets; no testimony to show that corrosion is so swift that a rivet which responds properly to a test will be corroded to a point by eight months subsequent immersion. The case as it stands on the testimony differs from those on which claimant relies. The Sandfield, 92 Fed. 663, 34 C. C. A. 612; The Exe, 57 Fed. 399, 6 C. C. A. 410; The Frey, 106 Fed. 319, 45 C. C. A. 309; and The Indrani, 177 Fed. 914, 101 C. C. A. 194.

The decree is affirmed with interest and costs.