231 F. 427 | 5th Cir. | 1916
(after stating the facts as above).
It is clear that, if the ship submitted to fumigation because of a
The government quarantine officials in Havana had no extraterritorial jurisdiction to enforce fumigation. The only penalty they could exact of the ship was the necessity of submitting to it in N'ew Orleans, if not administered in Havana. Even this penalty could have been avoided by discharging the cargo from the harbor at Havana or at a rat-proof wharf. Under these conditions, if injury to the cargo was so probable a result of fumigation as to make the submitting to it by the master negligence, the ship would be liable for any injury to the cargo thereby caused. Submission under such circumstances would be voluntary and not compelled by paramount public authority. The question resolves itself into the inquiry as to whether the master should have reasonably apprehended injury to the lemons from fumigation when he submitted his ship to it. The appellant’s agents in Havana had notice before the ship’s arrival of the quarantine regulations, and of the necessity for discharging from the harbor or at a rat-proof wharf, in order to escape the necessity of fumigation either at Havana or at New Orleans.
The evidence is in conflict as to whether the condition of the lemons, as testified to, upon arrival in New Orleans, was due to the fumigation at Havana. We think it reasonably appears that fumigation was the cause, in view of the undisputed evidence that they were received by the ship at Palermo in good condition, and would have withstood the voyage without impairment of condition in the absence of unusual treatment on the ship, and the absence of any showing of anything unusual on the voyage except the fumigation.
The appellant contends that the injurious effect of fumigation on lemons, if it existed, was unknown prior to the incident in Havana, both to scientists and seafaring men, and that the master of the Gerty was not negligent in failing to foresee such likelihood of injury when he submitted the ship to fumigation. The history of fumigation, in its effects -on fruit, is a disputed question as shown by the record. In the absence of any evidence as to the master’s state of mind with reference to this subject, we might be in doubt as to whether to attribute negligence to him in failing to anticipate injury. The record, however, shows that upon his arrival in Havana, and upon his being informed of the necessity of fumigation, he protested and upon.the ground of probable injury to his cargo of lemons. It is true the evidence shows that the Havana quarantine officer reassured him; but
We think the record shows that the master of the Gerty did, in fact, apprehend danger of injury to his*cargo from fumigation. It then became his duty to protect his cargo against such injury. If it was then too late for him to have escaped fumigation, by discharging from the harbor in Havana or at a rat-proof wharf there, he still had it in his power to decline fumigation at Havana altogether, and submit to it only upon his arrival in New Orleans, where the period between fumigation and discharge of his cargo would have been less, if he was required to fumigate before discharging his cargo. Upon his 'next trip, he pursued this course, and was permitted to discharge his cargo in New Orleans before being fumigated. The agents of the ship at Havana should have notified the master of the quarantine requirements before he tied to the wharf, and in time to have enabled him to escape fumigation. We think the record sustains the District Judge in his conclusion' that the ship was liable for the damage to the lemons.
Criticism is made of the character of proof submitted by the libel-ants and interveners as to the market price of lemons when those on the Gerty were sold. There is some evidence offered by the libelants and interveners as to the market price, and, what there is is not contradicted. , We therefore assume the figures of the master as the basis of assessment of the damage on each box, reducing the decree in favor
As so modified, the decree of the District Court is affirmed.