Opinion
Nos. 237, 238.
March 16, 1931.
Appeal from the District Court of the United States for the Eastern District of New York.
In Admiralty. Libels by Sgobel Day and by Fred A. Cuneo and others, doing business under the firm name of Cuneo Bros., against the steamship Hog Island, and the Export Steamship Corporation, claimant, for cargo damage. From a decree of the District Court dismissing the libels [ 43 F.2d 243], libelants appeal.
Affirmed.
These two cases, tried together by stipulation, involve damages to chestnuts shipped on the steamship Hog Island at Huelva, Spain, in November 1925, consigned to New York. The Hog Island is a three-island type steamer of 3,037 tons net, holding the highest class rating in Lloyds. The damaged chestnuts were in jute bags, and were stowed in Nos. 2 and 4 lower holds and No. 5 'tween-decks. Each of the holds had a telescopic cowl type ventilator on the port side forward and another on the starboard side aft. The ventilators had 21" tubes with cowls 39" in diameter with the exception of the cowl on the forward port ventilator in No. 4 which had a cowl 31" in diameter. No. 5 'tween-decks had a ventilator on the port side forward with a tube 21" and a cowl 39", and on each side aft it had a ventilator. They had tubes 15" and cowls 28x20.
The Hog Island arrived at Huelva from Dede Agatch, Greece, where some dry tobacco had been loaded in Nos. 2 and 4 lower holds and in No. 5 'tween-decks. Her other holds were empty.
The evidence as to stowage of the chestnuts supports the facts concerning that as found by the District Court, and we quote them:
"2,691 bags of chestnuts, in jute bags, were loaded in the after part of No. 2 lower hold, on from one inch to two inches of dunnage, laid criss-cross fashion the wooden ceiling, extending from side to side of the ship within the cargo battens, not closer than 18 inches at the bottom, and as far as 12 feet to the after bulkhead.
"The height of the lower hold was approximately 18 feet, and as stowed the bags were from the height of 4 feet aft to 7 feet in the forward end of the stow, and on top of these bags some 82 cases of chestnuts were stowed.
"8,093 bales of tobacco were stowed, to a height of about 16 feet, forward of the bags and separated from them by about 3 or 4 feet.
"2,866 bags of chestnuts in jute bags were loaded in the after part of the No. 4 lower holds, on from 1 inch to 2 inches of dunnage laid criss-cross fashion over the wooden ceiling extending from side to side of the ship within the cargo battens, not closer than 18 inches at the bottom, and as far as 12 feet to the after bulkhead, and to a height of about 4 feet in the after part of 7 feet in the forward part of the stow.
"Immediately forward of the bags of chestnuts were stowed, on similar dunnage, 1,528 cases of chestnuts from side to side of the ship, to a height of about 8 to 10 feet.
"A tunnel some 7 feet in height, dunnage from the tank top of the hold by one inch dunnage, in criss-cross fashion, divided the stow of cases and bags of chestnuts fore and aft.
"7,665 bales to tobacco were stowed, to a height of about 15 feet, forward of the cases of chestnuts, from which they were separated by a space of about 4 feet.
"1,423 bags of chestnuts, in jute bags, were loaded in the after part of the No. 5 tween deck on from one inch to two inches of dunnage, laid criss-cross fashion, extending from side to side of the ship within the cargo battens, not closer than 18 inches at the bottom, and as far as 12 feet from the after bulkhead.
"279 cases of chestnuts were stowed forward of the bags of chestnuts.
"The height of the tween decks was 8 feet, and the height of the chestnuts as stowed was from 4 to 6 feet.
"1,033 bales of tobacco were stowed forward to the chestnuts but separated therefrom by a considerable space.
"12 to 15 carloads, averaging 100 to 150 bags of chestnuts, were rained on and wetted one night while they were being loaded from open cars which were brought alongside the vessel."
When the chestnuts arrived at New York, many of the bags of chestnuts in both shipments had been spoiled by sweating, and the top two tiers of crated chestnuts in No. 4 hold were soft and mushy. The remainder was discharged in good condition. While at sea it had been discovered that some of the chestnuts were sweating and on nine days of the voyage, according to the log, the hatch covers of Nos. 2, 4, and 5 were open for ventilation in addition to what the ventilators themselves afforded. At other times these covers were off for an hour or two at a time, although that fact was not mentioned in the log. Some of the bags were shifted.
The bills of lading under which the chestnuts were shipped provided, inter alia, that, "except when caused by negligence on the part of the vessel, neither the vessel, her owner, nor agent shall be liable for loss or damage resulting from; Heat, * * * decay, putrefaction, * * * sweat, * * * of any of the goods, whether shipped with or without disclosure of their nature;" also "perishables are accepted at the risk of the owner thereof, and neither the vessel nor her owner shall be liable for any loss of, or damage to, such goods unless caused by negligence from which the vessel and her owner are not relieved by the provisions of the Act of Congress of February 13, 1893, known as the Harter Act."
Finkler McEntire, of New York City, for appellants.
Kirlin, Campbell, Hickox, Keating McGrann, of New York City (L. DeGrove Potter and Michael F. Whalen, both of New York City, of counsel), for appellee.
Before L. HAND, CHASE, and MACK, Circuit Judges.
As the damage to these chestnuts was due to heat, decay, putrefaction, and sweat, it falls within the exceptions to the bills of lading, and the vessel is not liable unless it is proved that the heat, decay, putrefaction, and sweat was caused by its negligence. The Toyohashi Maru (D.C.) 13 F.2d 871; The Florinda (C.C.A.) 31 F.2d 262; The Bencleugh (C.C.A.) 10 F.2d 49.
Whether the stowage was negligent or not and whether the holds in which the chestnuts were stowed were suitable for such cargo and equipped with adequate means of ventilation were questions of fact. Expert witnesses, well qualified to know, testified that the ventilation supplied was ample for such goods and that the stowage was not negligent. The evidence to the contrary, notwithstanding that these chestnuts were damaged, falls short of carrying the burden as to negligent stowage and leaves the proof of seaworthiness for the purpose of carrying these goods abundantly established. The lower court so found, and the record supports it.
There has been some suggestion that the sweating was caused by disease in the chestnuts and by wetting of the bags before they were laden on the ship. We do not undertake to determine the actual cause of the damage, but confine ourselves to the issue which goes only to the point of deciding whether, under the contract of carriage, the proof in these cases is sufficient to charge the appellee with liability for it.
Both decrees are affirmed.