The Rosalia, 264 F. 285

The Rosalia

264 F. 285 | 2d Cir. | 1920

HOUGH, Circuit Judge

(after stating the facts as above). [1] The decisions of this court already contain two accepted definitions of the phrase “peril of the sea.” The Warren Adams, 74 Fed. 415, 20 C. C. A. 486; The Giulia, 218 Fed. 746, 134 C. C. A. 422. They need not be repeated, further than to insist that the peril which forms a good exception in a bill of lading means something so catastrophic as to triumph over those safeguards by which skillful and vigilant s.eamen usually bring ship and cargo to port in safety.

[2] It is true that the strain of long-continued storm may injure some one piece of apparatus, good of its kind, while leaving the rest of the ship substantially unhurt. The Charlton Hall, 207 Fed. 343, 125 C. C. A. 116, is an example. But this is very rare; and when it is said that a hatch covering or temporary bulkhead gave way through the unexpected force of expected rough weather, the assertion belongs to that class of unusual claims, which “ought to be sustained by evidence correspondingly convincing.” The Grapeshot (D. C.) 42 Fed. 505.

[3] Since this is an action for breach of a contract of carriage expressed in a bill of lading, it is to be remembered that the bald fact of damage (such as exists here) to goods receipted for in good order, raises a presumption of unseaworthiness (The Warren Adams, supra), or of negligence (Herman v. Compagnie Generate, 242 Fed. 859, 155 C. C. A. 447). It is the duty of the carrier under the general maritime law (not to dwell on the Harter Act [Comp. St. §§ 8029-8035]) affirmatively to show that the damage arose from an excepted peril; if the matter remains doubtful, the carrier is not excused (The Edwin I. Morrison, 153 U. S. 212, 14 Sup. Ct. 823, 38 L. Ed. 688), and this is true, whether the doubt exist as to the nature of the injurious occurrence or the sufficiency of the cause assigned.

To apply the rule: If we doubted whether sea water got into No. 4 through the hatchway, or coal dust into the cargo space of No. 2 through the bulkhead, that doubt would give decision to the cargo owner; we are not so doubtful, but if we further doubted whether the hatch coverings leaked and the bulkhead opened solely because of an elemental force irresistible by human skill, that doubt would resolve the matter for libelant. Thus, even if we were not -as fully satisfied on the facts as was the District Judge, his decision on the merits is right.

[4] As for the wetted tobacco in No. 2, the fact once established that it was wet by sea water, there being no further explanation (The Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748), is decisive against .the carrier. The decisions urged upon us by appellant (Gough v. Hamburg, etc. [D. C.] 158 Fed. 174; The Hyades, 124 Fed. 58, 59 C. C. A. 424) only, we think, illustrate the extremity of sea violence necessary to be proven with great clearness, in order to establish defense under the exception here relied on.

[5] The assignments of error based on proceedings before the commissioner we take up guided by our ruling in Appeal of Cahill, 124 Fed. 63, 59 C. C. A. 519, that, where the commissioner’s findings have been reconsidered on exceptions and approved by the trial court, “they *289should not be disturbed by this court, unless manifestly wrong.” Being far from convinced that the commissioner was manifestly wrong on any issue of fact, we examine only the legal propositions argued. That the quantum of damage was not proved in accordance with law, and was too great anyhow, is really based on two legal propositions: (1) Expert opinion evidence of value was not admissible. (2) Error in opinion as to bales thought to be damaged over 10 per cent, invalidated similar testimony as to bales less severely injured.

[6 ] While the first proposition has in times past been the subject of much difference of opinion, it is settled in the United States courts that as a general rule opinion evidence on value is admissible (Montana Ry. v. Warren, 137 U. S. 352, 11 Sup. Ct. 96, 34 L. Ed. 681), and we regard Clark v. Baird, 9 N. Y. 183, as a well-considered decision to the same effect. Perhaps no opinion has been more persuasive than that of Story, J., in Alfonso v. United States, 2 Story, 421, Fed. Cas. No. 188. And see Buckley v. United Slates, 4 How. 251, 11 L. Ed. 961.

[7] But this proceeding is in admiralty, and we “are not hound by all the rules of evidence which are followed in the courts of com;non law, and * * * may, where justice requires it, take notice of matters not strictly proved.” The Boskenna Bay (D. C.) 22 Fed. 667, not changed as to this point by (D. C.) 40 Fed. 96. And see, for the general rule, Ben. Adm. (4th Ed.) § 437, citing cases. 1L is to be remembered that, had libelant sent all injured bales Lo sale as damaged, loss would have ensued greater than the recovery allowed lie-low; but respondent could, and doubtless would, harm charged that the good and bad tobacco was “easily separable” (The Boskenna Bay [D. C.] 36 Fed. 699), and complained that no division had been made.

[8] It is now proven that such physical separation was slow and expensive, and we can imagine few cases better than tills for reliance on expert opinion. Among marine causes The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510. 41 L. Ed. 937, affords an extreme example of the admissibility of opinion evidence, which may be used (o impeach as extravagant even actual expenditures (The Mason, 249) Fed. 721, 161 C. C. A. 628), or to prove as damages repairs never made (The William E. Ferguson, 108 Fed. 984, 48 C. C. A. 173). As against a carrier at common law, St. Louis, etc., Ry. v. Edwards, 78 Fed. 745, 24 C. C. A. 300, is notable. The evidence there was, we think, sufficient; in kind it was like that at bar; in degree, far less persuasive.

[8] As for the second branch of this argument, it is scarcely ;» question of law, unless there be required a ruling (which we make) that a mistake as to tlie amount of damage on five packages does not require rejection of the same witnesses’ testimony as to the damage in five other packages. In a wide sense of the word, the matter is one of credibility, and goes to the jury (if there is one) with the other facts. We are of the opinion that the probability of error as to the slightly damaged goods was much less than in respect of the very wet bales; but the question is of fact, and the result not “manifestly wrong.”

*290[10] In considering this question of opinion evidence as to amount of lost tobacco (for all thoroughly wet leaves were worthless) it is to be remembered that the men who gave evidence based th'eir opinions on what they learned at a survey, of which claimant had notice, in which it declined or neglected to take any part, and which the li-belant’s insurers conducted. If no notice had been given claimant, our remarks in The Westchester, 254 Fed. 576, 166 C. C. A. 134, would have been applicable. As it was, claimant was bound to know that surveys of damage in marine matters are held for the purpose of ascertaining what damage has been done, not to discover or award blame for the loss. The notion, apparently acted on by this claimant, that any investigation into quantum and kind of damage is something like an admission of liability therefor, is error.

We do not hold that any party must join in a survey, but we think him ill-advised not to do so; for he has deliberately omitted to gain knowledge, and cannot complain when the attending parties use the knowledge they obtain to his disadvantage. We are aware that the surveyors who testified here were not qualified because they surveyed, but because they were experts in tobacco and its value, but think that claimant has brought on itself great expense by not attending, for it would have been apparent how persuasive were the methods pursued by the subsequent witnesses. Dr. Lushington’s remarks, quoted in The Mason, 249 Fed. 720, 161 C. C. A. 628, are exactly applicable to the situation so often produced by parties refusing to avail themselves of the opportunity for information afforded by a survey.

[11] We have no doubt that the invoice value was well proved. Much has been said of “consular invoices.” The documents were evidence, not because the}'- had or had not some consul’s certificate attached, or merely because they came from the files of a branch of the Treasury Department (see Cohn v. United States, 258 Fed. 355, 169 C. C. A. 371), but because by many congressional acts -and departmental rulings a true invoice, verified by oath, is made the basis for lawful entry into this country of. most imported merchandise (see Index of Custom House Regulations, sub. nom. “Invoices,” for references). The safeguards thrown by fear of detection and personal- punishment and confiscation of goods around the invoice, which usually represents the goods for customs purposes, are so great that any reasonable man would look with greater confidence on the document brought from the custom house files than on one produced from a private desk.

This very obviously comes within the generous and sensible rule of admiralty, above quoted, especially as invoices are commercial documents. For an example of the respect accorded even “custom house weights,” see Linklater v. Howell (D. C.) 88 Fed. 526.

The appellee has asked us to consider and award certain items not allowed as damages below. We think the rule of Cahill’s Appeal, supra, applies to them, and affirm the decree as rendered, with interest and costs.