28 F. Cas. 1234 | E.D.N.Y | 1870
These actions are brought to recover of the bark Vivid the value of certain sugars, shipped on board that vessel in Ponce, Porto Rico, to be transported to New York under bills of lading in the ordinary form, and which were destroyed under the following circumstances: The bark, a vessel ten or twelve years old. having been absent from New York without repairs for about a year, was loaded in Ponce for New York with a cargo consisting of 505 boxes of sugar, 130 hogsheads of molasses, and 30 tons of lignum vitse wood. Her loading was completed on the 4th day of June, 1869, when at nightfall she lay at anchor in the harbor, ready for sea, drawing fifteen feet of water, and apparently tight. The next morning, at daylight, she was found to have some seven feet of water in her hold. The pumps were set to work; but it was found necessary to discharge all the cargo between 'decks before the leak was got under. It was then determined to recaulk her, and accordingly the whole cargo was discharged, the vessel caulked above her copper, and the portion of the cargo not destroyed by the water which had come into the vessel was reladen, and the bark proceeded with it to New York, where she arrived in safety without further damage. The value of the sugars thus destroyed amounted to about $35,000, while the value of the vessel is but about $2,000. This loss, as far as the value of the vessel will go towards it, the libellants now seek to recover, upon the ground that the vessel, when she was loaded in Ponce, was unsea-
Of this evidence, a necessary part for a successful defence is that which goes to prove an excessive rolling of the bark in a heavy sea on the night of the 4th of June. But this part of the claimants’ evidence is rendered doubtful, and open to the suspicion of being at least highly colored, by the other portion of the testimony of the same witnesses in regard to the condition of the vessel, wherein they all declare that no water was taken in through the seams of the vessel. This declaration is made emphatically; and; upon such evidence standing alone, it might have been inferred that the breakage of the water-closet pipe was the cause of the leak, and the vessel accordingly discharged from responsibility, upon the ground that a vessel able to endure without any other injury such a sea as the mate describes, when loaded as this vessel was, was manifestly seaworthy. And yet, in contradiction of this testimony, the answer is found to aver that the vessel’s seams were opened, and water thus admitted to the cargo. The shipwright is wrong then when he swears that the condition of the oakum, when he examined it in New York, showed that water had not passed through the seams. And if the seams were opened, as the answer admits, it is difficult to understand how the mate and steward could have examined the vessel’s seams as carefully as they describe, without finding places open. It is also probable that the break in the water-closet pipe, which was first discovered in New York, had not occurred at the time of the leak, as it would hardly have remained undiscovered when the vessel was surveyed and caulked in Ponce, after the leak, if then in existence.
The doubt thus cast upon their account of the heavy sea, which the mate and steward describe, is greatly strengthened by the fact, that the protest makes no mention whatever of any heavy sea at the time of the leak, and does not allude to any heavy rolling of the ship as the cause of the leak. Such an omission in a protest is significant; for, to use the language of Judge Hopkinson (Davis v. The Seneca [Case No. 3,650), “in protests, the seas are always mountain high, and the wind never less than a hurricane.” I can conceive no reason for omitting from a protest any allusion to the fact which is now claimed to have been the cause of the loss, and to have made a protest necessary. Against witnesses thus in conflict with the answer upon a material point (the master of the vessel not being produced, or his absence accounted for), three marine inspectors are produced by the libellants, who examined the bark after her arrival in New York, when she had sustained no injury since the leak in Ponce, who declare her to have been unfit to sustain such a cargo, and unseaworthy. She was extensively repaired before any rate could be given her, and then the rate ms A 2%. The condition of the timbers and planks of the vessel, as described by these witnesses, confirms the opinion which they express; and they are to some extent corroborated by the testimony of the shipwright, called by the claimants, who. while he says that no water could come through the seams, is far from being satisfied that the tear discovered in the water-closet pipe would account for the quantity of water the bark made. TJpon a careful weighing of this testimony, I am of the opinion that the claimants have failed to show any stress of weather sufficient to cause the leak in question, had the bark been reasonably tight and staunch above her copper; and, in the absence of such proofs, it is the reasonable inference, that the loss arose from the insufficiency of the vessel. There was, at the time, no wind of any consequence; the vessel was in a harbor, and at her anchorage. She, doubtless, was able to carry a moderate cargo, but when filled to the depth of fifteen feet with sugar and molasses, she was unable to endure, without opening her seams, what I conceive to have been no more than an ordinary occurrence, such as any vessel would be expected to endure.
The law requires of the shipowner a vessel reasonably calculated to endure the ordinary strain of the navigation in which she is engaged. If his vessel be reasonably sufficient for the voyage, he is not to be held liable, by showing that a stouter ship would have outlived the peril (Macl. Shipp, p. 459); but when goods are lost by his vessel’s springing a leak while at anchor in a harbor, he must show some stress of weather, or other circumstances sufficient to account for such a leak in a vessel of ordinary strength. The effort to show this, in the present case, has failed to satisfy my mind, and I must, accordingly, hold the vessel liable for the loss in question.
In arriving at this conclusion, I have attached some importance to the fact, that the
Copy surveys were likewise sought to be read in evidence, but they stand upon a different ground. They do not purport to be made by any one connected with the vessel, and no witness able to prove or to dispute their correctness, as copies, has been called as a. witness, or shown to be within the reach of the claimants. Besides, it has been adjudged that surveys are not evidence of the facts stated therein. Watson v. Insurance Co. of North America [Case No. 17,284]; Cort v. Delaware Ins. Co. [Id. 3,257]. I therefore reject the copy surveys; but, upon the protest, and other evidence in the cause, as before stated, I adjudge the libellants entitled to recover. Let decrees be entered accordingly, the form to be settled before me on notice.