Opinion
Andros & Hengstler, of San Francisco, Cal., for libelant.
Ira S. Lillick, of San Francisco, Cal., for respondent.
DOOLING, District Judge.
This is a libel for damage to a cargo consisting of cement and steel plates, shipped from Rotterdam to San Francisco. The libelant claims that the damage was the result of sweat occasioned by a quantity of coke constituting a portion of the cargo. The respondent claims that the damage was caused by sea water entering through seams in the deck and through the ventilator during extraordinarily heavy weather encountered on the voyage.
The vessel was under charter to libelant, who selected the whole cargo, including the coke, so that no negligence may be imputed to the ship from the fact itself that coke formed a part of the cargo. The bill of lading provides that the cargo shall be delivered in like good order and condition as when received, subject to certain exceptions, among which are the 'act of God, and all and every danger and accidents of the seas. ' It further provides that the ship is not liable 'for damage by heat, sweat, or rust, unless occasioned by improper stowage. ' The damage complained of was the caking of the cement, and the rusting and pitting of the steel plates. This damage, both to the cement and to the steel plates, was occasioned by some form of moisture. If caused by the entrance of sea water, the ship cannot be held responsible, because the evidence is clear that whatever sea water entered did so by reason of the fact that the ship became strained by the storms and heavy seas encountered by her, and the damage falls within the first exception above noted. If the damage was caused by rust or sweat, then under the second exception the ship is not liable, unless such sweat or rust was occasioned by improper stowage.
The evidence offered by libelant tended to show that the moisture which caused the caking of the cement and the rusting and pitting of the plates was the result of sweat arising from the cargo of coke. If it be conceded that this fact is established, the burden of proving that the damage from such sweat was occasioned by improper stowage is upon the libelant. For, once the damage is brought within the exceptions of the bill of lading, the ship is exonerated unless the libelant show that, notwithstanding such exceptions, the ship is liable because of some negligence; in this case, the negligence of improper stowage. The testimony is very conflicting both as to the cause of the damage
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and the propriety or impropriety of the stowage. It appears, however, that the coke was stowed in the fore and after parts of the vessel, while the general cargo was carried amidships. The coke was separated from the general cargo by bulkheads made of boards placed one above the other, not dovetailed, but closely fitted; the whole being lined on the side next to the coke with dunnage mats. Respondents' witnesses testified that the boards were so closely fitted that daylight could not be seen through them, while the witnesses for libelant testified that there were frequent interstices between the boards and a considerable space between the top of the bulkheads and the deck. The bulkheads, however, were better ones for the purpose intended than those generally in use at the time, and on the whole case I am not prepared to say that the stowage was not proper. My conclusions therefore are:
1. That part of the damage at least was due to sea water forced through the deck and ventilator, and is excused by the exception in the bill of lading covering 'all and every danger and accidents of the seas.'
2. That if any damage was caused by sweat, it is excused by the exception covering 'heat, sweat, or rust,' unless such damage were occasioned by improper stowage.
3. That the burden of showing such improper stowage is upon the libelant.
4. That such burden has not been satisfactorily sustained.
5. That for these reasons the libelant is not entitled to recover, and the libel must be dismissed.