BRADLEY FERTILIZER CO. fl. THE
J. MORRISON.
501
and the contents partly missing, although the latter may justly assumE', in the absence of information showing injury by vw major that his property has been carelessly dealt with, he cannot ordinarily prove the particulars of the carelessness, because these are only known to the carrier or his servants. It is right, therefore, under such circumstances, that the carrier should be required to vindicate himself thoroughly; and if be fails to produce his own servants or employes, whose testimony might clear up any doubtful points, he cannot complain if every presumption is taken against him. The libelants were led to believe, from the statements of the lightermen, that the casks and kegs were in the same condjtion when received 'on the lighters that they were in when delivered at the warehouse. They assumed, therefore, that their loss was probably caused by the irnproper stowage of their goods, and framed their libel principally upon this theory; but the averments in the libel are sufficient to entitle them to recover for negligence in any other respect. . A decree is ordered for the libelants for the sum of $1,082, with inter.est, and with costs of the district court and of this court.
BRADLEY FERTILIZER
Co. .".
THE EDWIN
T.
MORRISON el
al. l
(Oircuit Oourt, 8. D. New York. October 24, i889.) $mPPING-DAMAGE TO CARGo-EVIDENCE.
On libel for damages to a cargo, it appeared that while the vessel was passing through. a heavy gale, during which sbe shipped great quantities of water, and' which injured her greatly by loosening timbers, etc.,which were found floating in her waist} it was discovered that a brass plate which covered a hole in the water-way, used lor bilge-pumps, and which was sunk flush with the top of the water-way, was gone. The plate had a movable cap, projecting about three-eighths of an incb above its surface, with edges beveled to one-eigbth of an inch. It was in plain view, and appeared to be in good order at the commencement of the voyage, but was not tested except by inspectibn, which was found to be such as might be expected of a reasonably prudent master or owner.. The plate had been screwed on, and the screw-holes were not smooth, black, or rusty. The surrounding wood was sound and white, and the screw-holes were ragged, showing that clear wood had come away. Such a plate is not unusual in vessels, and is considered a permanent fixture, and is not liable to deterioration by lapse of time. The vessel had been in use about 11 years..Ther was no direct evidence as to how the plate was lost. Held,. that its loss was caused by an accident, resulting from a danger of the sea, which oould not reasonably have been anticipated.
FEPERAr.,RErORTER,
vol. 40.
, (2) By the. charter-party,. it was agreed on the part of the vessel that, she ('rohonldbe tight, staunch, strong, and every way fitted for such a voyage," and "the the· sea (were) mutually excepted." (3) Under this charter,there was loaded on board said schooner, by the libelant, a cargo of guano, superphosphate, and otherfertilizers, viz., tons in bulk., and 410 35-61 tons in bags, besides 3,925 empty bags and sacks.. Six bills of lading were given therefor, which acknowledged the receipt of said cargo in good order and condition, and agreed to deliver the same in like good order and condition at Savll.nnnhj the dangers of the seas only excepted. The bulk cargo was stowed between-decks, and the remainder in the 10wElr hold. (4) The cargo was what is known as a. ((dead cargol and hard one for a. vessel to carry in severe weather. ' (5) The vessel was not overloaded. She was accustomed to, and able to carry" that amount of cargo of the same character at that season. (6) The vessel was built in 1873, had three masts, was about 155, feet long over all,carrying spanker. mainsail, foresail; forestay saH, jib, flying jib, outerjib, foretop sail, maintop sail, and mizzen-top sail. S.be. was properly manned and equipped. Her officers and crew consisted of a master, first mate, second mate, steward, and four sailors. On this ,voyage she had two passengers on board, viz., the master's wife and a lady friend. (7) 011 the port side of "the vessel, inthe water-way, and close to the bulwark, there was a hole about three inches in diameter, made when she was built, for the purpose of introducing a hose-pipe into her bilges to free her of any water accumulated there. The water-way (of yellow pine) was about three and a half inches above the deck. The hole was a short distance in front of the poop, and ran dowll through the waterway, between the ceiling and the skin of the ship. The hole was (lOVered by a brass plate about four inches square, countersunk .into the timber, aURh with tbe top of the water-way, and fastened by four brass $<llews. In the brass plate. was a. removable cap, also of brass, intended to be unscrewed from the plate, when the holewas to be used, but it had not in fact used for four or five years, (if, indeed, at all,} and was painted over wheMvertbe water-way WitS paitlted.. The removable cap projected about three-eighths of an inch above tbe surface of the plate, the edge.!! being beveled so as to leave not more tban an eighth of an inch of perpendicu]aI'surface. There was a similar plate and cap on the starboard side of the vessel, but somewhat further alt, and upon the poop deck. , (8) Such bilge-pump holes are not unusual in vessels constructed in some localities. The plates are generally considered permanent fixtures, not,peculiarly susceptibl" toqeteriora,tion froD;1 age.. Verdigris sometimes around brass screws, thus \VElllkenillg the bold of the but wlJ,ter-ways located as this was, well covered up and. well painted, are not of sound, life is largely in liable to rot"and excess of 12 years. If the plates and caps which are generally used to cover such holes are not kept tight and secure, the holes become danger-
a
BRADLEY FEltTILIZER CO. ".' TItE EDWIN··r. MORRISON.
503
ous; but that mode of 'covering was generally deemed secure by sea-faring mell. and seldom, if ever, have any accidents arisen from their use. (9)' The bilge-pump hole heretofore described as located in the waterway was opposite a port iIi the bulwarks of the vessel. The opening ot ·the port was about a foot square, beginning about two inches from the .bulk-head of the poop deck. The poop deck was about four and a half feet above the main deck, and extended from just abaft the mainmast to ;!he' stern. (10) Said bilge-pnmp plate was in plain view, upon a casual bspec·tion, at the time of making the charter and loading the vessel. The vessel was loaded several times before this voyage by the libelants. (11) Before the vessel sailed, the cap and plate appeared to be in good order, with no indication of looseness. The examination which was at that time made of them consisted of such· inspection as could. be. gil'en .by the eye; and to an inspection they were from time to time ,subjected. They were not tested either. by unscrewing the cap or ·plate, or by tapping the plate with a hammer. Tapping with a hammer or .unscrewing the cap might have developed any insecurity (if there ·were any) in the bilge-pnmpplate. Immediately a·fter the loss of the port bilge plate (hereafter described) the mate tested the condition of the similar plate on the poop deck, starboard Side,. by tapping with a hammer. and found it apparently sound. . (12) '. The examination which was made of the' cap and plate, as set forth in the eleventh finding, {viz., by a survey, without the use ofspecialtests,unless there is!some appearance of defect.) is such asa reasonably prudent mtlster or owner might be expected to give them in order to determine the seaworthiness of his vessel before beginning a voyage. (13) The voyage began 011 the 5th day of January, 1884, and the vessel actually got to sea on the 7th, when she encountered a strong northwest gale. The light sails were furled, and the mainsail and foresail nouble The gale caused her to labor heavily, and ship large quantities .ofwater, some of which entered the cabin, and reached the ·cargo. The vessel was driven out of her course and into the Gulf Stream. The gale moderated somewhat the latter part of the day, but the vellsel still continned to roll heavily, and shipped plenty of water. The pumps were attended to, and the vessel was found to be making considerable ,water. The next day the gale continued, with a very heavy sea running, ·:until about 4 P. M., when it moderated, and at 6 P. M. top-sails were set. The latter part of the day there was a strong breeze, and two reefs were made in the spariker. The vessel made little water this day. The next day (the 9th) began with a strong south-east breeze, which freshened to a strong gale. Two reefs were made in main and fore sails. At 4 P. M. the spa-nker. and jib were furled. The middle part of the day there was a very sharp gale. and heavy sea running. The vessel labored heavily, and .shipped .great quantities of water. The pumps were carefully attended to; and she was found to be makiqgcopsiderablewater.·Thelatter part of,the ,day the windwasstill incrElasing,andthe. foresaihmd fore;weN·furled. It was then blowing a"living"gale frOinth6West-
:504:
FEDERAL REPORTER.
ward. .The weather through the night continued to be extremely severe. There was "a terrifiogale of wind." Planks were carried away from the bulwarks of the starboard side of vessel; also one of the ports'; The water-way on starboard side was started off. The covers of the chain locker and a: spar were found loose in the morning, floating in the waist of the vessel on both sides. Coal washed about decks; also buckets and bucket racks; also pieces of bulwark. The forecastle door and galley door were washed off, but were not lost. The men could not stanel at pump on main deck, because it was continuallyswept by theseas; and it was with difficulty that they were able to work at the pump on the poop deck, which was about four and a half feet higher than the man deck, on account of the sea breaking over. Before midnight the vessel was hove-to under a storm try-sail, two-reefed foresail, and fore stay sail, on the port tack. The vessel was . shipping water through the cabin windows, doors, and down the booby ·hatch. The cabin was situated in the after part of the poop deck. The top of the cabin-house was about three and a half feet above the deck. ·They commenced to take in the cabin while eating supper, and all through the night it forced its way in. This was unusual, and indicated very bad weather and a rough sea. Everything in the cabin. was drenched, excepting the bert.hs, by water washing around the cabin with motion of vessel. Water reached the cargo during the night through the cabin, a. strained water-way. and otherwise. pumps were tried every tW() hours; and by 4 o'clock Thursday morning it was discovered, by the .pumps bringing up guano with the water, that the cargo was wet. The master of the vessel did not go to bed during the night, but was mostly on deck. Previous to 4:30 o'clock in the morning they were able to get a suck. on the pum ps, indicating that there was no water then in the well, but after that were unable to do so. At this time the weather was very bad; a very bad sea flooding the decks continually, and washing everymovable about. About 5 o'clock they sounded, and founded 18 inches of water in the well. In about half an hour afterwards they wore ship, putting the vessel before the wind, so that the men could stand at .the pumps. This gave the vessel a list to port. The only outlets on the port side for the seas that came aboard were the open port above men·tioned and the scuppers. They conthlued pumping, but still were un.able to get a suck, and at 9 o'clock soundings showed about seven feet of ,water in the vessel. Preparations were then made to abandon the .vessel, .as she was supposed to be sinking. The lashings of the boat on the poop deck were cut, and the women on board came up from the cabin to take the boat. Between 10 and 11 o'clock they wore ship, and the vessel slowly righted up, the booms swinging from the port to the starboard .side, bringing the port side out of the water. The vessel was then work·ing heavily in the sea, losing steerage-way, and settling fast. When the .vessel righted up and roBed her lee side out of water, the second mate, ·who, with others, fastened with lines to prevent them from being washed ·away, was working at the pump on the main deck, heard a heavy gurg.ling sound, and let go the pump and went over to the port side, put his ·hand against the rail, and looked. down under it to where the bilge-pump
BRADLEY FERTILIZER CO. II. THE EDWIN. L HORRISON.
505
plate was, and saw a hole large enough to put his hand in. He ran his hand and arm down the hole, and sung out to the captain, "Look here!" Being greatly excited, and not looking for such a thing, he hardly realized what the trouble was. The captain carne, and said, "My God, this is the bilge-pump!" It was found that the whole bilge-pump plate, with the screws, was gone. (14) The wood to which the plate had been fastened looked white and Bound. From the holes out of which the screws had corne, part of the clear wood was itself hauled, the splinters hanging around the edges of the holes; the holes thus presenting a ragged look. The were not smooth, nor black, nor rusty. The wood of this particular waterway, in the vicinity of the plate, did not look rotten; and when, after arrival at Savannah, the temporary plugging referred to in the seventeenth finding was removed, and the hole plugged and covered with sheet-lead, the timber into which the pIng was driven, and on which the lead was nailed, was found solid; and since that time the covering hl;lR not been further repaired, nor the timber changed in any way. (15) No marks of violence other than the splintering of the wood about the screw-holes was visible upon the water-way, or upon the adjacent bulwarks or stanchions. (16) As no one witnessed the removal of the bilge-pump plate, direct evidence of the cause of this mishap is not obtainable. It is; however, to be inferred, from the facts proved, that it was knocked out by something striking violently against it, subsequently to the time when they wore ship after finding eighteen inches of water in the well, which would be between 5 A. M. and 5:30 A. 'M:. (17) The hole was at once plugged up, covered with canvas, and sheetlead nailed over the canvas. (18) At this time the wind had abated somewhat. The vessel's.wheel was tied hard up, and the sails trimmed so that she would lie to, .and the crew went to work pumping again, and gained on the water. By 11 or 12 o'clock that night they.succeeded in getting her free of water so far as the pumps could do so, and the journey was continued. (19) Afterwards it was found that the mainmast .had been loosened by the working of the vessel, and that the coating was broken; also that a scupper on the starboard side was broken. . (20) The weather continued severe. during almost the entire voyage, and the injury to cargo was increased thereby. (21) The vessel arrived in Savannah, ·January 27th. (22) Upon the arrival, she delivered her cargo, some of it in a damaged condition. The extent of the damage was $9,175.40. (23) At the time of the contract, and lading of cargo, and commencement of voyage, the vessel was tight, stanch, and strong, and in every way fitted for the contemplated voyage. (24) There was no latent defect in the vessel which contributed to the injury of the cargo. (25) There was no fault or negligence in the navigation of the vessel or care of the cargo.
506
ll'EDE1U.L REPORTER,
LARRINAGAtI. l'WOTHOUSANDBAGSOF SUGAR.
607',
aria theapplioationof a degree of force, which a reasonably skillful and prudent owner would not have anticipated or guarded against. There' is no question of latent defect, the inference to drawn from the testimony being that there was no defect. patent or latent; that the fastenings were sufficient, and were knocked out by a blow such as could not reasonabl,Yhave been anticipated, and which was caused by a danger of theses.' "
be
ON APPLICATION TO AMEND FINDINGS.
(December 18,1889.)
Upon the two principal amendments to the findings asked f()r by the libelant, namely: (1) To insert the word" apparently" in the twenty-third finding; and (2) to prefix to the twenty-fourth finding the words, "It is tobe inferred from the facts found in ,the 16th finding,"-his motion must be denied. The libelant claims that there some defect or weakness in the plate and cap, and the screws was in which se<Jured them; that in consequence they washed out, and allowed the water to enter the vesseL Whether such defect or weakness existed or not is a question of fact, which it is the duty o(the circuit court to decide. Such decision must be presented, as a finding of fact, to the appellate <itmrt. The conclusion reached :upon all the testimony was that there was no such defect. No doubt that conclusion was reached as an inference from the facts in proof. No one distinctly testified: "I made an elaborate examination of the cap, plate, and screws before the vessel sailed. They were then in sound condition, and I saw them knocked out by :floating stuff washing across the vessel's de<Jk, and out through the open port." Nevertheless, the testimony, taken as a whole, indicates that this was in fact what happened. If this court should amend the twenty-third and twenty-fourth findings in the manner suggested, the supreme court might reverse on the express ground that, because there was no distinct finding of fact to that effect, it must be inferred that the claimant did not convince the <Jircuit court, as a matter of fact, that the vessel was tight, and there was no latent defect in the plate, cap, or fastenings. But that is the very conclusion to which an examination and comparison of all the testimony adduced by both sides has led this court; and therefore compliance with the act of 1875 seems to require the statement of such conclusion as a finding of fact.
J.
LARRINAGA
et al.
fl.
Two
THOUSAND BAGS OF SUGAR.
·
(Circuit Court, E. D. Loutsiana.November 16,1889.) ADJIIlULTY JURISDICTION-SBVlllUNG CAUSB OJ' ACTION.
Oq, libel cargo for and other charges, where claimants admit that the freight 18 due, but deny liabIlity for tbe other charges, the cause of action may be severed, and judgment render.ed for libelants for the freight oharges, though Buoh separation destroys the of appeal to the supreme court of the United States, by reducing the amount m controversy below ita jurisdiction. e