218 F. 744 | 2d Cir. | 1914
(after stating the facts as above). The court below reached the conclusion that the damage to the cargo was caused by'the escape of fresh water from a pipe in the hold of the vessel, and that the water escaped from the pipe because there was no cock, 'plug, or stoppér in the pipe. The defense claimed that the stopper must have been knocked out of the pipe by the working of the cargo and that the cargo worked or shifted by peril of the sea. The court below reached the conclusion that no such sea peril was shown.
There was, however, no testimony in the case showing that the liemp had been damaged by sea water. But there was testimony to show that it had been damaged by fresh water. When the vessel reached New York, and while the cargo was still in the hold, the testimony showed that fresh water was running out of a fresh water pipe and into the compartment where the hemp was stowed. The hold in which the bales of hemp were stowed was one intended to be used when necessary for passengers, and on this particular voyage three-quarters of the whole cargo was in that hold.' In this hold there was a fresh water pipe, which the master of the ship described by saying:
“This pipe was coming out through the upper ’twoen-deck on the forward bulkhead between the two angle irons and down from the upper ’tween-deck to about five or six feet from the lower ’tween-deek where the cargo was.”
The pipe was connected to a tank placed in one of the highest places of the ship and was used to supply the fresh water to the passengers when the hold that on this voyage was used for cargo was occupied by passengers. The tank held between 2% and 3% tons of water, and was filled about five times a day from the big storage of water kept in the ballast tanks. When this hold was occupied by passengers a cock was attached to the pipe, which passengers used in drawing water, and when the hold was used for cargo the cock, was removed and a brass plug was screwed on in its place. The pipe was of galvanized iron and about three-quarters of an inch thick.1 The cock or plug was protected by an iron fender, which was fastened to the bulkhead of the ship with two three-quarter inch bolts. When the ship reached New York, it was found that this bracket was hanging down and one of the bolts holding the bracket was gone. The plug which should have been in the pipe was not there, and the claim is that it was there in place originally, but had been displaced by the alleged shifting of the cargo. But if the plug was originally fastened into the pipe, and had been worked out by the shifting of the cargo, it should have been found; but it never was found. This plug, which it was the custom to use, and which should have been used, but apparently was not, was a piece of brass threaded at one end and squared at the other, so that it could be screwed tight with a spanner. The testimony showed that the pipe had not been broken or injured and that the threads inside the pipe were not broken. It would seem that if the plug had been in place, and forced out by the shifting of the cargo, there should have been some indications on the pipe showing the strain to which it had been subjected. We are not convinced that the cargo ever shifted, or that, if it did shift, that it displaced the plug running to the fresh water tank, the water from which in our opinion damaged this cargo.
We have not overlooked the testimony of the master of the ship that a plug was screwed into the pipe at Trieste; but we are unable to accept that testimony, in view of the fact that the carpenter whose duty k
We are unable to find on this record that the plug disappeared through perils of the sea. The appellant has not sustained the burden of proof, and the decree appealed from is affirmed.