202 F. 322 | S.D.N.Y. | 1911
(after stating the facts as above).
The libelant urges that from any point of view gum was an improper wood to -use, because it is pliable and will throw a thrust upon the bulwarks, even if it be top-lashed. There is some dispute as to whether or not its pliancy does not serve to accommodate the bulwark to the shock of the momentum of the cargo in a rolling sea; but I do not find it necessary to determine that question, which is somewhat obscure. It is enough that gumwood was in the most general, if not universal, use for precisely this purpose at Newport News, and, indeed, at times elsewhere. It was extremely tough, and had a much higher breaking strength than pine. From the point of view of past experience with breaking stanchions, it was especially desirable, since pine would break. Here, again, Hargreaves thinks that its toughness made it dangerous to the bulwarks, even when lashed; but his judgment upon that, like his judgment upon arranging and securing the stanchions, either arises after the event, or-was not generally shared by mariners. In the face of such a general usage, I cannot find that the wood was inherently dangerous.
Finally arises the question of the master’s conduct after the stanchions showed signs of weakness on December 6th. He then lashed together the threatened stanchions, leaving the rest. No one knows at what point the bulwarks broke; but we must suppose that none of the stanchions did, else the bulwarks would have been relieved. At least, that was the most likely way in which the accident happened. If the bulwarks broke at the point of the lashed stanchions, then it was an accident quite unavoidable; for Hargreaves himself concedes that a bulge of six inches at the top of the stanchions is not serious, if checked by lashings, and if the coke does not work down to bulge out the stanchions below. Now, if the bulging stanchions were lashed, in so far as they bulged below, if at all, it was due to the character of the wood, which, as I have said, it was nevertheless reasonably suitable to employ. Therefore, as to those stanchions, the captain had done all that could in any case be expected of him, and had done it before any serious change had taken place to his detriment. If, on the other hand, the bulwarks broke at the point of the unlashed,stanchions, at least they had shown no signs of bulging; and there was no more reason to apprehend danger from them than there had been at the commencement of the voyage.
The accident appears to have happened either because, from some unknown cause, the bulwarks were weaker than is usual in such ships, or because there was, as Judge Wallace says in The Frey, 106 Fed. 319, 324, 45 C. C. A. 309, 313, “ ‘an unlucky twist’ in seas not extraordinarily rough.” If a shipper wishes to protect himself against such accidents, he must insure; for they are not fairly a subject for the assessment of damages upon the basis of some one’s negligence.
Libel dismissed.