Opinion
No. 10799.
June 27, 1931.
Finkler McEntire, of New York City (Frank I. Finkler, of New York City, of counsel), for libelants.
Loomis Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for claimant.
In Admiralty. Libel by Carl I. Dingfelder and Benjamin Balish, copartners doing business under the firm name of Dingfelder Balish, against the steamship Cherca, her engines, boilers, etc.
Decree dismissing libel.
This suit is brought by libelants against the steamer Cherca, to recover for damages alleged to have been caused to a shipment of onions owned by them and carried on the steamer Cherca, by reason of the negligence and want of care of the owners, officers, crew, and others in charge of the said steamer, and the cargo of the said steamer, in respect to the loading, stowage, delivery, custody, and care of the said cargo, and also by reason of the unseaworthiness and deviation of the said vessel on the said voyage.
I find the facts as follows:
The libelants, Carl I. Dingfelder and Benjamin Balish, were at all the times hereinafter mentioned and at the time of the trial copartners doing business under the firm name of Dingfelder Balish, and had an office and place of business in the borough of Manhattan, city, county, and state of New York.
At all the times hereinafter mentioned the said steamer Cherca was engaged in the carriage of merchandise for hire between Spain and the port of New York.
The steamer Cherca was during the pendency of this action within the Eastern District of New York and the jurisdiction of this court.
On the 15th day of December, 1927, there were delivered to the steamship Cherca, in Spain, for delivery at New York, 4,762 crates of onions marked D B, and 8,000 crates and 811 half cases of onions marked John Bull, for which bills of lading were issued on behalf of the master of said steamer, bill of lading No. 2 covering 4,762 crates, and bills of lading No. 4 and No. 5 covering the 8,000 crates and 811 half cases.
All of the said bills of lading recited, "Shipped in apparent good order and condition."
On or about the 16th day of December, 1927, the steamer Cherca, having the said onions on board, sailed from the Port of Valencia, Spain, and on or about the 8th day of January, 1928, arrived at the Port of New York, where she made discharge of said onions and delivered part thereof.
The libelants were at all the times hereinafter mentioned and at the time of the trial holders of the said bills of lading covering the merchandise above mentioned and entitled to delivery thereof.
Delivery as to a considerable portion of said shipments was made in bad order.
Notice of damage as required by the bills of lading was given by the libelants.
A number of packages were seized by the board of health and there was a short shipment.
All of the onions of the libelants on the steamer Cherca were stowed in Nos. 2, 3, 5, and 6 tween decks and No. 5 lower hold.
None of the onions of the libelants on the steamer Cherca were in the No. 4 tween deck.
There are six hatches on the steamer Cherca, numbered 1 to 6, inclusive, and abaft of No. 6 hatch there is a tank, the upper part of which is sometimes used for the carriage of cargo. Hatchway No. 4 is immediately abaft of the amidship house.
Nos. 4 and 5 tween decks are a continued tween deck, there being no permanent bulkhead between tween decks Nos. 4 and 5, but there was a temporary wooden bulkhead between them, a small portion of which only was open.
No. 4 hatch is between No. 4 and No. 5 tween decks, No. 4 tween decks being forward of and including No. 4 hatch to the after hatch coaming, and No. 5 tween decks aft of No. 4 hatch.
The No. 2 hatch had two ventilators one forward and one aft, No. 3 had two ventilators one forward and one aft, No. 5 had three ventilators two forward and one aft, and No. 6 had three ventilators two forward and one aft. The ventilators in No. 5 hatch were the regular 30-inch ventilators.
The steamer Cherca was in good condition, a steel vessel built in 1920, and had the highest classification in Lloyds Register, and also the highest class registration in Nationale Italiano Register.
The regular season for the exportation of onions from Spain is June, July, and August.
They raise two crops of onions a year in Spain, the first crop is sown in January and the second crop in May, about one month after the first crop is harvested.
The second crop is harvested about August, and the regular season for exporting the second crop is August, September, and October.
The shipment of onions on the Cherca was a late shipment and near the time when the onions would begin to sprout.
The crates in which the onions were shipped were about one and a half feet long, one foot wide, and one and one-half feet deep, made of slats of pine and fir wood, one inch wide, one-half inch thick and spaced one and one-half inches apart; the crate being divided into two nearly equal sized compartments by a piece of wood.
Generally the cases were placed on dunnage of two inches, double one-inch thick planks grating fashion, and in tiers four or five tiers high. The crates were first arranged crosswise, then longitudinal, and thereafter alternating to impart greater strength to the pile. The loading started at the sides of the ship and came on toward the center from each side, until they came together. In so loading, however, at each sixth or seventh case as they went across the ship, they left a canal for ventilation, such canals being a little less than the length of a crate, one and one-half feet wide, and every sixth tier had cases put athwart the tiers to serve as braces between the respective tier of the front line and the front tier of the last line.
There were no toms to hold the stow rigid and none were needed.
The amount of coal customarily required for a voyage from Spain to New York at that season of the year was from 430 to 450 tons, and when the Cherca left Valencia she had 605 tons of coal aboard, an excess of from 155 to 175 tons; that is, an excess of more than 25 per cent.
The voyage usually is completed within 17 days. The consumption of coal when all three boilers are used was 28 tons per day, and the ship could make with the three boilers in use a little over 11 miles per hour, with but two boilers in use the consumption of coal was reduced to 24 or 25 tons per day, and the speed that the vessel could make was reduced to 10¼ miles per hour. It was customary to use but two boilers for a considerable portion of the voyage.
The vessel left Valencia about 2 o'clock a.m. on December 16, 1928.
During good weather both the ventilators and hatches were kept open to afford ventilation, but when the weather started to get bad the hatches and ventilators were closed.
This was necessary for the protection of the cargo.
The weather was good on the 16th and 17th of December, 1928.
The Cherca passed Gibraltar on the 17th day of December, 1928, with good weather, and headed for St. Vincent, intending to go right across the ocean; but when close to St. Vincent, on December 18th, a southwest middle force wind started to blow and the barometer to fall. This was an indication of bad weather, and the master of the Cherca, in the exercise of his judgment, steered southwesterly instead of westerly. That was the recommended admiralty course for that season.
Ventilation was had both by the opening of the hatches and ventilators on December 18th.
On December 19, 1928, the wind was southwest, force 5 of the Beaufort scale with light squalls; that is, intermittent rain. The sea continued getting rougher with heaving, rolling, and pitching of the ship. Ventilation was had intermittently by the ventilators and hatches.
On December 20th the wind continued to rise and squalls continued. Ventilation was had intermittently by ventilators and hatches.
On December 21st the wind continued to rise, the sea became rougher and reached the deck, the ship to roll, heaving and pitching, the propeller to race, the ship to lose headway, and ventilation became impossible by ventilators or hatches.
On that day the Cherca received a report from the steamer Splendor of the same company, which she had received from the steamer Vigor, of bad weather at 1,300 miles.
The master of the Cherca then ordered the third boiler to be put out, and the Cherca continued to run on two boilers and changed her course more to the southerly.
On December 22d the weather became worse and ventilation by ventilators and hatches was impossible; the temperature was rising and the propeller racing.
On December 23d the same conditions prevailed as on the 22d, but worse, and on pumping the master had reason to believe that the general cargo not the onions in the lower holds had shifted.
An inspection followed, but the fact could not be determined.
On December 24th the bad weather continued, the ship was struck by heavy seas, and ventilation by ventilators and hatches was impossible.
On December 25, 1928, the weather improved, the hatches were opened, and it was found that the onions were germinating, sprouting, and that due to the heavy weather 100 to 150 cases of onions had fallen.
There had been some disarrangement of the cases, but that was all that had fallen.
On December 26, 27, 28, 29, 30, and 31, the weather again grew worse, working into a true hurricane, with little if any chance for ventilation by ventilators or hatches.
On January 1, 1929, the weather had improved, and on opening the hatches it was found that a few onions had rotted and that most of them were sprouting. The crew were set to work separating those that were entirely decayed from the others and some twenty crates were thrown overboard.
On January 1, 1929, the Cherca was in latitude 29.58 north, longitude 55.15 west.
Eighteen days had elapsed on the voyage on January 3, 1929, and the Cherca was then less than 200 miles from Bermuda and about 1,000 miles from New York.
The Bermudas were then directly on the Cherca's course.
The Cherca had already been at sea one day longer than the ordinary trip to New York and had about 120 tons of coal on board.
Rain again started, and the master of the Cherca, in view of the possibility of gales arising, in the exercise of his judgment steered for St. George. On arrival there the Cherca took 85 tons of coal aboard.
The Cherca left St. George, Bermuda, the next day and sailed for New York, encountering north northwest and west winds, and was able to ventilate the cargo with ventilators and hatches.
The Cherca arrived in New York on the 8th day of January, 1929, 5¾ days beyond the usual time for the voyage, and longer than the longest previous voyage of the master from Valencia to New York, which had been 18 days.
The Cherca in addition to other means of ventilating used canvas ventilators in No. 5 lower hold and tween decks.
The bills of lading contained the following provision: "The carrier will not be responsible for loss, damage, injury or other consequences occasioned by or arising directly or indirectly from ____ heat of holds ____ wastage, breakage, ____ decay, heating, sweating ____"
From the facts as found it appears that libelants' claim may be divided into two classes: That caused by heat and sweating, and that caused by breakage.
Libelants also charge deviation.
Lack of ventilation causes heat and sweating, and these are exceptions of the bill of lading.
As to the loss by heat and sweating, there can be no recovery without showing negligence on the part of the Cherca. No such negligence has been shown. On the contrary, it clearly appears that the onions were well and properly stowed to secure ventilation, that the method of securing the cases to form ventilating alleys was a usual one, and that it was not negligence to refrain from using toms.
Every effort appears to have been made to ventilate the holds and tween decks by the opening of the hatches and ventilators whenever the weather permitted.
The onions were shipped too late, and the damage to the onions by heat and sweating was developed as early as the 19th of December, before the bad weather set in, and during all of the time from the day of sailing to that day full ventilation had been had, and was so great by the 25th of December as to affect a very large portion of the onions, and necessitated the throwing overboard, on January 1, 1929, of those that had rotted.
The weather encountered on this voyage was very bad and much worse than should reasonably have been expected, and that constituted a peril of the sea.
The onions in question were shipped very late and are known to be a cargo requiring particular care.
Libelants were right in their contention that having accepted the cargo the ship should have given the cargo particular care, and this seems to be exactly what it did, as the testimony clearly shows special efforts to give the cargo ventilation whenever possible, but ventilators and hatches could not be left open in the weather described.
With great respect for the opinion of Judge Moscowitz in the Schnell Case (D.C.) 52 F.2d 644, involving another shipment on the same vessel, it is not authority for what libelants contend here.
In that case the shipment in the tween decks was only in No. 4, and the court found that No. 4 tween decks was not properly ventilated.
In the instant suit none of the shipment was in the No. 4 tween decks, and the evidence is conclusive that the tween decks 2, 3, 5, and 6 and lower hold 5 were provided with reasonably proper and adequate ventilation, except when the use of the ventilators was prevented by the unusual weather, which constituted a peril of the sea.
As to the stowage of the cargo as a whole, the evidence shows it was usual and proper, and any such breakage as there may have been was caused by the disarrangement of some crates on top, or pressure due to the rolling and pitching of the ship in the unusually heavy weather and storm which constituted a peril of the sea.
When the Cherca left Valencia, she had an excess of coal in addition to what was ordinarily required for a voyage to New York, of more than 25 per cent., and that is all that could reasonably be required. The Willdomino (C.C.A.) 300 F. 5, 13, affirmed 272 U.S. 718, 47 S. Ct. 261, 71 L. Ed. 491.
Neither the master nor engineer, when the Cherca left Valencia, had the slightest idea of making port in Bermuda to obtain coal, and it was not until it became apparent, after the ship had been at sea for 18 days and had 1,000 miles to go, that for safety more coal should be obtained, that the chief engineer notified the master of the quantity of coal that he had on board, and the master put into Bermuda for more coal.
This did not constitute deviation. The Caledonier (C.C.A.) 31 F.2d 257, 259.
That the Cherca arrived in New York with about 15 to 20 tons of coal more than the 85 tons she took at Bermuda certainly does not show lack of good judgment on the part of the master, as one real heavy storm on the way from Bermuda to New York would have absorbed that quantity.
The cutting off of the third boiler and the operation on two, when the heavy weather was met, was evidence of good and not bad judgment on the part of the master, reducing the coal consumption and not greatly reducing her speed, and not an unusual thing to do.
I find as conclusions of law:
That the onions belonging to libelants were shipped in apparent good order and condition, and were delivered in bad order.
That the damages to the onions were caused by heat, sweating, and breakage.
That heat, sweating, and breakage were exceptions in the bill of lading.
That the Cherca and her master, officers, and crew were not guilty of any negligence, but that such damages by heat, sweating, and breakage were caused by perils of the sea.
That going into Bermuda for coal was not a deviation.
That the claimant is entitled to a decree dismissing the libel with costs against the libelants.
A decree may be entered dismissing the libel with costs against the libelants.
Settle on notice.
If this opinion is not considered a sufficient compliance with rule 46½ of the Admiralty Rules (28 USCA § 723), proposed findings of fact and conclusions of law may be submitted for the assistance of the court.