243 F. 720 | E.D. Pa. | 1917
The respondent schooner was chartered to carry a cargo of bones from Buenos Aires to this port. The
The defense is a denial of any shortage in the cargo in fact, and this in turn is based upon a further denial of the correctness of the intake weights. The damage to the cargo is attributed to a hazard of the sea, the consequences of which are excepted by the charter party. The entrance of sea water is averred to have been due to the openings of the seams of the vessel following strains to which she was subjected in the tempestuous weather which she encountered. The bearing points of the controversy are thus seen to be two- questions of fact.' One is of the tonnage of the cargo, which in fact was put aboard the vessel. The other is whether the leaks were due to the condition of the vessel, or were due to heavy weather conditions, which would have caused a vessel of the stipulated seaworthiness to have sprung leaks to such an extent as to have caused the damage which was done. This latter fact question resolves itself into an inquiry into the character of the weather encountered on the voyage.
The foregoing discussion resolves itself into the finding of two facts: (1) There was no shortage in fact in the tonnage of the cargo as received and discharged by the vessel. (2) A part of the cargo as discharged was damaged, and this damage was done the cargo during the voyage and was due to the unseaworthinéss of the vessel; she not be
The earnestness with which the respective views of counsel were pressed at the argument calls for a further statement fortifying the conclusions already reached. A supporting authority to sustain the measure of the evidentiary value given to the bill of lading is found in the case of James v. Standard Oil (D. C.) 189 Fed. 719, appeal ruling 191 Fed. 827, 112 C. C. A. 341. It is true that the legal eiiect of the bill of lading being in evidence is to impose upon the master the burden of making satisfactorily clear the correct weight of the cargo taken aboard and discharged by the vessel. It is not, however, an accurate statement to aver, as was positively asserted at the argument, that "there was no evidence to contradict” cither the bill of lading weights or the outturn weight figures. The evidence is clear and convincing that all of the cargo which was put aboard the vessel was received by the consignees. If this be "the 'fact, it is persuasive of the existence of an error in one or the other of the stated weights, or of something occurring during the voyage affecting the weight of the cargo. It is frankly conceded that the cargo was not diminished through any human agenc}". It is admitted to be the fact that such a cargo under ordinary conditions will weigh less when discharged than when taken aboard. Such a discrepancy is looked for, but it would not be expected in a cargo of this size to exceed from 65,000 to 80,000 pounds, while the shortage as figured was substantially twice that. One of the experiences of the voyage affecting the weight of the cargo was that a part of the cargo was wet. The portion thus affected was in the out-turn weight figured at 389,407 pounds. The weight of the water was likewise figured at 62,305 pounds. Deducting this added weight of water from the gross outturn weights gives a net outturn of 2,521,276 pounds, which deducted from the weight stated in the bill of lading of 2,670,345 pounds gives the estimated shortage of 149,069 pounds. It is thus seen that if the comparison is made between the gross out-turn weights and the bill of lading weights, and allowance is made for the expected reduction in weight, the shortage entirely disappears.
It is argued, however, that it is entirely proper to allow for the added weight of water in the wet part of the cargo, because this weight is known to be there, and it is not proper to allow for the ordinary reduction in weight, because this reduction is due to the bones drying out, and that they did not in fact dry out under the conditions of this voyage, and because of this no lightening of weights should be assumed, and the discrepancy thereby becomes a real shortage. The significance of the fact that the cargo was undisturbed from the time it was shipped to the time it was discharged, it is further argued, is destroyed by the added fact that the vessel leaked, and because of this the fine bone and soluble constituents of the bone was dissolved and pumped out with the water through the scuppers. This brings to the front a rather nice distinction. The libel voices two grounds of complaint. The one is a shortage in delivery. The other is damage to the cargo through its becoming wet, owing to the unseaworthiness of the vessel. It is, of course, true that cargo taken aboard the
There only remains, therefore, to determine whether the shortage in weight is due in whole or in part to. the sifting of the fine bone in the undamaged part of the cargo into the wet portion, thereby reducing the otherwise undamaged part of the cargo both in bulk and weight, or whether the difference between the intake weights and out-turn weights is due to inaccuracy in one or both. We have positive and convincing evidence of the correctness of the outturn weights. The intake weights, however, are known to us only through and by the bill of lading. Thi§ evidence, though acceptable as legal evidence, and though, as already stated, fully in legal effect prima facie justifying a finding of its accuracy, is nevertheless the kind of evidence whose force must yield to other evidence found to be persuasive of facts inconsistent with and contradictory of the accuracy of. the weights given in the bill of lading. If these weights were inaccurate, the discrepancy is accóünted for, without troubling ourselves to find any other explanation of the shortage. Some light is thrown upon what is the real fact by.the circumstance that a part of the bone was put in bags, and the bags were counted and the number stated. When the cargo was discharged, the bags were again counted, and there was found, not only the difference in weight already mentioned, but a difference in the count of the bags. There is a suggestion in the evidence, as bearing.upon this discrepancy in the count, that some of the bags might have bursted, or in fact some of them did burst, and the contents get among the loose bone; but this evidence was neither sufficiently definite, nor did it point to a sufficient number of broken bags to 'account for the difference between the number stated in the bill of lading to have been taken aboard and the count of the number of bags discharged. It being an-admitted fact in the case that all the cargo which was taken aboard had been kept under hatches, battened down and undisturbed until the cargo was discharged and the accuracy of the outturn weights and the outturn count of bags not being questioned, the conclusion cannot be escaped that the intake weights and count of bags as set forth in the bill of lading was inaccurate, and we have been unable to reach any conclusion of the extent to which it is inaccurate, other than that measured’by .the difference between the intake weights and the outturn weights, and the measure of the latter corrected by the analysis of the discharged cargo «mowing the extent to which the weight ’had been increased by the presence of water and decreased by the loss of the soluble constituents of the bone. Inasmuch as the latter, as already stated, has been
Respecting the defense of hazards of the sea to the claim made for damages, there is occasion to add little to what is set forth in the finding already made. Such a defense carries with it essentially the thought of vis major. Seaworthiness, as fitness, is necessarily a relative term. So, likewise, are expressions descriptive of weather conditions and of sea. The respondent schooner, when she undertook this carriage, was a reclaimed wreck. This fact has a more or less important bearing upon the probabilities of the real cause of the damage to this cargo. We have not found in the evidence any suggestion even of the thought that, had this vessel been really seaworthy, she would nevertheless, under the stress of weather to which she was subjected, have taken in water to the extent to which she did take it in on this voyage. The only finding which the evidence justifies would he that of the two facts that she did encounter weather which might fairly be characterized as heavy and that she did leak so as to have at times five feet of water in her hold. The important fact is in the' finding of whether she leaked not because of her unseaworthy condition, but because of the stress of weather and sea to which she was subjected, or, in other words, did she spring a leak in spite of the fact that she was seaworthy? Hazards of the sea may cause any vessel to spring a leak, but vessels sometimes are in a condition in which they will leak, and, of course, they will leak under conditions of strain due to heavy weather. The difference is to some extent expressed between the two phrases, one that a leaky vessel encountered heavy weather, and the other that a vessel sprang a leak during and because of the heavy weather which she encountered.
The decree to be entered in accordance with the findings made is sufficiently indicated, and a formal decree embodying the findings herein made may he submitted.