3 F.2d 553 | 2d Cir. | 1924
Lead Opinion
(after stating the facts as above). These appeals present but a single question of fact: That question arises from the pleadings in the following manner:
Libelants charge that the hides went aboard in good condition and came off in •bad. Prima facie that was enough to make out their ease, if true; but libelants went further and averred that the damage was caused by contact with sea water, and the unseaworthiness pf the Goyaz, while claimant denied not only the initial good condition of the hides, but the fact of injury by sea water and the allegation of unseaworthiness.
As libelants had no admission in the bill of lading on which to rest, the burden was on them to prove: (1) That the hides were in good condition when stowed, and (2) that the bad condition on delivery'was due to sea water. And of course this burden libelants had to carry by a fair preponderance of credible testimony.
What was actually the matter with the hides, i. e., their condition when unladen, and the probable cause of that condition, •were ' something that eyewitnesses in New York could testify about, and they did at great length. But the condition of the hides at Rio Grande was something of which no witness producible in New York could speak, and the investigation of that subject was the excuse given for an open commission to Brazil.
Of course, even bad hides might be made worse by exposure to sea water in the hold of a vessel, but it remained true that the burden was on libelant to show sea water damage. It was not enough to show that poor hides or injured hides came out of the Goyaz. It was necessary to prove that that injury resulted from something that the ship was responsible for, and there is no suggestion of any ground for the ship’s liability except letting sea water in on the cargo. The ease was carefully tried on this issue by Ward, 'C. J., in the court below, and after considering the voluminous evidence and the careful .opinion of the court, we find it unnecessary materially to add to it. It is enough to indicate that we agree with every proposition advanced in the opinion, and substantially for the reasons there given. There is in respect of hides a real difference between what the witnesses call commercial damage and actual damage. A hide may make perfectly good leather and yet may be in a condition of superficial putrefaction, evidenced by a discoloration on the inside of the hide and a Iposeness of hair on the outside. But if this process of decay has not affected the “grain” of the hide, it makes good leather; but inasmuch as the extent or acuteness of decay cannot be judged with certainty, hides so affected sell in their raw condition for less than those unaffected. This is commercial damage. And this was the matter with the hides complained of. There is no evidence that any of the hides, other than the approximately 50 that were rotted with sea water, did not ultimately make good sound leather, though it is probable that some of them did not. Consequently as the ease developed, the vital question was whether the undoubted commercially bad condition of the hides was due to sea water that had leaked into the hold. We shall not go into the details of testimony; as above noted, that has been sufficiently done; we merely indicate the following points as in our opinion important and strongly tending to sustain the result below:
1. We regard the evidence produced in open court from men of repute and experience in this trade as upon the whole showing that the bad or damaged hides found on
2. The commercially damaged hides were scattered all through the cargo except for the small lot hereinabove noted. If the damage had been by sea water, no such wide scattering of injured articles would have been observed. Even if all the hides had not been injured, the injured ones would have been in groups where the sea water had accumulated and rested.
3. We see no reason to doubt the evidence that when the hatches were taken off in New York the top layer of salt was intact, or substantially so. If, as is so strongly urged, the salt water leaked through the decks, it would naturally first have melted this salt.
We agree with the remarks of the court below concerning the evidence taken in Brazil, which is too evenly balanced in quantity and seemingly too well drilled to command confidence. The one thing that the Brazilian witnesses all agreed about was that the stowage was good — at all events, there is no evidence of bad stowage.
In our opinion it is plain that the libel-ants have not sustained the burden of showing by a fair preponderance of evidence that the commercially unsound condition of tlie hides on delivery was due to anything that the ship did or failed to do, and particularly such condition was not due to rotting by sea water which came aboard during the voyage.
We have nothing to add to Judge Ward’s comments on the repairs executed to the Goyaz while in New York. Said repairs furnished no ground for holding that the steamship was unseaworfchy or not cargo-worthy before she received the repairs.
Neither do we perceive any reason why the claimant which brought in Thomsen & Co. should not pay the costs of the latter.
Decrees affirmed, with one bill of costs.
Dissenting Opinion
(dissenting). This .record is voluminous. My study of it caused me to resolve the questions of fact very materially different than the result reached by the majority opinion. The-damage to this cargo of hides is about one-third of the full load. The surveyors reached this conclusion. It is very unlikely that any such large quantity of damaged hides were shipped as marketable. The evidence demonstrates that they were not shipped in any such condition. They were purchased from a reputable and responsible seller, and their good condition is fully established by reputable witnesses whose duty it was to see and know their condition — the merchants from whom they were purchased, the inspectors, the receivers at the barracas at Rio Grande, the tally clerks, the contracting stevedores who loaded them, and many disinterested witnesses. As well, many of the laborers who loaded the ship proved the claim of the hides being in good condition when shipped. Some laborers who were but temporary longshoremen gave testimony as to reddish, bluish, and greenish colors in the hides. These colors became so common in the description by them, that the hides must have been in better condition upon their arrival in New York than when shipped, for the experts who examined them in New York found no such numbers so discolored. There is little dispute that the hides were properly pickled' and stowed. They eame out of the vessel in a wet and dripping condition, which is never found in the ease of sound hides. The experts saw pools of water standing on the hides in various compartments of the ship. They saw a considerable number of hides showing a darkening of the fleshy side (not merely pinkish, or reddish in color), also a slipping of the hair in various degrees. They were quite unanimous in saying such a condition was due to sea water. Even the experts who did not see the hides in the compartments of the ship, but who saw them on the dock, thought they were damaged by sea water. There was an intermixture of sound and damaged hides on the pier, and this seems to have led to the assumption that they were in the same relative position on the ship. They were not. The experts say that a reddish appearance does not necessarily indicate that the hides were damaged. The experts all say that there was an excess of water in the hides and refer to their flabby condition. The fact that there was a layer of salt found over the top of the hides at the deck does not answer the claim of the entrance of sea water, for the salt would only be disturbed at the points of entry of the water. No claim is made that water came over the entire upper surface of the hides. Water came through the weather deck, chain pipes, and forecastle sounding pipes, and undoubtedly in other places. A layer of salt was found in the upper compartment, the shelter deck space. This does not account for the between decks and lower hold.
After the voyage, repairs were made to the teakwood weather dock, the entire plumbing equipment was repaired, various sounding pipes and caps, and the bulkhead plates were taken out and new ones put in
I therefore dissent.
