Welsh v. Alvena

79 F. 973 | 2d Cir. | 1897

PER CURIAM.

The bill of lading exempted the carrier from liability for loss or damage arising from "unseaworthiness of the ship, provided all reasonable means have been taken to make her seaworthy.” The Harter act of February 13, 1893, which is also relied upon, provides that:

“If tlio owner * * * shall exercise duo diligence to make the said vessel in all respects seaworthy and properly manned,” etc., “* * .* neither the vessel, her owner,” etc., “shall become or bo held responsible for damage or loss resulting from fault or errors in navigation or in the management of said vessel.”

Manifestly, neither the clause in 1he hill of lading, nor that in the Harter act can be availed of by the ship unless it is shown that “all reasonable means have been taken,” or “due diligence exorcised,” to make her seaworthy; and the two phrases here quotéd have the same meaning. When the cement was so cracked as to allow the corrosive sugar acid to come in contact with the iron, she was not in all respects seaworthy to carry such a cargo. And it is also quite clear that “reasonable means” or “due diligence” would call for some sort of an examination of tlie cement before sailing with such a cargo, to see if it was free from cracks. Much testimony was taken, and both briefs devote much space to argument touching claimant’s theory that the crack was caused after sailing, by collision with the bottom or with some floating substance. We are unable to reach any definite conclusion on this branch of the case. It would be mere guesswork to express an opinion either way. All that can be said is that it does not appear what caused the crack. Of course, if it were shown salisfactorily that it was caused as defendant contends, the ship would not be held liable, although it might appear that there had never been any examination or inspection at all before sailing; for such examination, however minute, would not have revealed the particular form of unseaworthiness not then existing,, but from which alone damage resulted. Inasmuch, however, as there is not sufficient evidence to show that the crack was caused by some accident after sailing, it becomes necessary for the ship to show such an inspection before sailing as would comply with the requirement that "reasonable means” or “due diligence” be taken or exercised. Upon this branch of the case we are inclined to concur with the district judge that the proof.of inspection of the cement bottom was not sufficient to meet this requirement. We do not mean to- hold that all the ceiling boards ought to be taken up before each voyage,—-an operation which would fake several days, and would require repeated renewals of the ceiling, broken by being torn up when boiled down. It dors appear, how over, that, it is usual to lay such ceilings with a number of boards tone of claimant’s witnesses says every third board) loose, aud provided with means for readily lifting them. When such a loose board is lifted, it is, of couise, practicable to examine the cement; under it, and also under the boards adjoining on each side. Quite possibly, such an inspection would not be as thorough as one made after removal of the entire ceiling; but, upon the evidence, it would seem to be all that reasonable prudence or “due diligence” would require, in advance of each voyage with such a cargo, supplemented by more thorough surveys at: longer intervals. Before the voyage in question the lifting boards on this ship, or at least those of them that covered Í be limber spaces running fore and aft, were raised, and the limbers cleaned out, In the course of which operation the cement in the vicinity was sufficiently examined. Had there boon lifting boards over the limbers in tins part of the ship, it would .seem that this crack, if it then existed, would have been discoA'oml by such insj>ection. But the difficulty with the case is that in that part of the ceiling which forms the door of a passageway between the tunnel shaft and an adjoining water tank, for a considerable distance, there are no lifting boards at all. The passageway has a widlli equivalent to that of about four boards, but each line of boards in it was so securely fastened that they could be torn up only at the risk of breaking them. It would seem to be a reasonable requirement that the usual facilities for inspection should have been provided in this part of the ship as well as elsewhere. Had they been provided and availed of, the inspection, no doubt, would hare met the requirements of the bill of lading or the llarter act. But, not being provided, and no inspection being had at all of the cement in this pari; of the ship, such requirements would seem not to have been complied with, especially in view of tbe evidence that it was comparatively easy to get Ijelow the ceiling of Ihis passageway by entering the tunnel shaft through a manhole, (he tunnel .shaft having no ceiling, it was in ¡his way that the leak was discovered by the engineer. It appears, then, that it is usual to have lifting boards over the limber spaces, and usual to lift them before sailing, in order to clear out the limbers so far as they run fore and aft; that, had boards been lifted for the full run of she limbers, the place where this leak developed would have come within the range of inspection; that no boards were lifted from so much of tin1 limbers as lay below the passageway, in consequence of which the place where this leak developed (lid not come within the range of inspection, as it otherwise would have done. We concur, therefore, with the district judge in the conclusion that libelants were entitled to a decree for the damage sustained. The decree of the district court is affirmed, with interest and costs.