Opinion
April 28, 1925.
Joffee Joffee and Joseph Joffee, all of New York City, for libelant.
Emory R. Buckner and Horace M. Gray, both of New York City, for claimant.
In Admiralty. Libel by the Fruit Auction Company against the steamship Owego. Decree for libelant.
Decree affirmed 11 F.2d 288.
There is no doubt that the cargo involved in this suit was shipped from Spain in good condition, and that a large part thereof was delivered at New York stained by bilge water and salt water. It appears that on the preceding voyage from New York to Spain the ship carried grain, and that part of the grain was damaged by salt water, which leaked through places in which rivets became loose. These leaks probably were repaired before the shipment in question was placed aboard the Owego. It, however, has been established that some of the suction pipes had been clogged on the voyage under consideration by grain carried on the preceding voyage. It appears that the suction pipes, both from the bilge wells and the ballast tanks, were carried through the holds of the ship, and that, when the ship arrived in New York with its damaged cargo, some of those pipes leaked. A former employee of the company which owned the Owego had informed its president that the ship was not fit to carry perishable cargo. It also appears from the testimony that the bilge wells were so constructed that it should have been foreseen that the rolling of the ship may cause water to enter the holds from the bilge wells.
The court finds, by reason of the running of the pipes from the ballast tanks and the bilge wells through the holds, and by reason of the fact that some of these pipes leaked when the ship arrived in New York, that the damages were sustained through the unseaworthiness of the ship for the carriage of perishable cargo, especially against head winds, which prevail during the winter season, and that the claimant was informed that the ship was not fit to carry perishable cargo, and therefore carried it with notice of unseaworthiness for such purpose.
It also appears that the ship was carrying water ballast in addition to stone ballast, and that the rolling of the vessel had a tendency to wash some of that ballast into the holds. The ship, therefore, should have carried ballast other than water, when carrying a perishable cargo.
At the request of the proctors for the claimants, the court also finds that there were no unusual weather conditions existing during the voyage on which the cargo was damaged.
The libelants, therefore, are entitled to a decree.