69 F. 471 | U.S. Circuit Court for the District of Southern New York | 1895
The circumstances proved show that the fractured scupper pipe in the ’tween decks had nothing to do with the damage to the dogskins. The damage, I find, arose from sweating of the cargo. This was a peril expressly excepted in the bill of lading. The contract, therefore, was not that there should be no damage from sweat; and the carrier’s duty in that regard was only to take all usual precautions against that liability to damage, and such as might be reasonably foreseen to be necessary. The evidence shows that such precautions were taken. The burden of proof to show negligence in that respect is on the libelants. They have not shown it. No .witness has even been called to testify that the cargo ought to have been differently stowed, or differently dunnaged, or more dunnaged; the port warden’s report approves it; and no defects of the ship connected with the damage aré shown.
The libelants’ main contention in their three briefs has been that the damage was from the scupper pipe, and not by sweat at all. Their contention in effect is, that in fact no further precautions against sweat were necessary, since there was no sweat damage; but if it was sweat damage, which they do not believe, then more precautions were necessary. That is mere claim from the event, but without proving negligence before the event.
The warden’s report does not seem to refer to the libelants’ dog-skins, which were in the hold. The marks are not given. As he was not called as a witness, his report of sea-water damage, as respects these dogskins, would be of little weight as against the opposite proofs, even if the report referred to these skins. Libel dismissed with costs.