670
FEDERAL" BEPORTBB.'
THE, PORTUENSE. t JOHNsONet',al.'V. THE PORTUENSlll.
,(District
Jun,e 16; 1888,)
SBn'PI:NG --"CARRIAGE
Llbe1l1ntfl shipped a quantity of Brazil nuts from p;ara to York under a b\llof lading which excepted liability from "damages arising from sweating. heat, steam," etc. ' On discharge at New York: the nuts were found damaged' by the' heat and sweat engendered' on the voyage. 'rhe evidence indithat the nuts were stowed in, the customary manner" that. they belonged to that portion. of the crop eSp'ecially liable to become heated. that they were carefully watched and ventIlated' when possible 'on the voyage, and that tempestuous weather necessitated keeping on the bntches during the last three days of the voyage. lield. that libelants had upt sustained the burden which was on them to show negligence in the vessel. and without such proof of negligence the ship WaS protected from liability hy the exceptions of her bill of lading,. .
OF GOODll-'-BILL OF LADING-ExCEPTIONS-SWEATINGHEAT-'BuRDEN OF PROOF-,EvIDENCE.
In Admiralty. Biddl,e & Ward, for libelants. Owen &; Gray, for claimants. BRowN,J. On March 2, 1887, the British steamer Porluense arrived,f!,t,New York from Para with a cargo of, Brazil nuts. A large quantity belonging to the libelants, stowed in the lower hold under hatch NQ.2,was found badly damaged, some 75 per cent. being worthless. Tbislibel was filed to recover for the damages. The bill of lading in its first part recites the receipt of the nuts at Pll{l'a in good order. Afterwards it states, and condition unknown." Among the numerous exceptions are" damages arising from sweating, heat, steam," etc. The testimony shows that it is usual for some sweat, heat, or dampness to damage the nuts; but that generally their effects are chiefly superficial,without injuring the internal quality of the nuts or their market value beyond a small percentage; although there is occasionally a considerable loss on new and raw nuts, like these, shipped early in the season. In this case the sweat and steam appear to have been much greater than usual. When the hatches were opened the stearn came out in clouds; and much heat was found to have been produced in the upper parts of the hold. The nuts belonging to other consignees which were stowed beneath the libelants' nuts turned out of an average qllality. The libelants' nuts, which were on the top, were largely in the condition called by the stevedore "cooked," being whitish on the outside, and soft within. From all the circumstances I have no doubt 1 Reported
b;rEdwardG. Benedict, Esq., of the New York bar.
sAs to how far a common carrier may limit its common-law 1'abiJ,ity by contract, see Railroad Co. v. Thomas, (Ala.) 3 South. Rep. 802, and note; B.ailroad Co. v. Sherrod,
\Ala.) 4 SoutJ:!. Rep. 29J. :Railroad Co. v. Smitha, (Ala.) 4 South. Rep. 708, and cases clited in Glenn v· .l!ixpress Co., (Tenn.) 8 S. W. Rep.152i Rallway Co. v. Trawick, (Tex.) 4 S. w. Rep. 567. .
,THE PORTUENSE.
671
that this injury was produced by the heat and sweat engendered upon the voyage. ,These caUi;lesof loss, however, being expressly excepted in the bill oOading, the ship is not liable, unless it appears that the steam and, he/;lt a.rose from some negligence or want of proper care by the ship, such as bad stowage, insufficient means of ventilation, or keeping the hatches too close on the voyage; or that, by proper attention, any injury from the beat and steam might have been avoided. The burden of proof to show this is upon the libelants. (J/n,rk v. Barnwell, 12 How. 272, 280, and, ()ther cases cited in The Vaderla'lld, 18 Fed. Rep. 740. , In the case of The America, 8 Ben. 491, and in that of The Star of Hope, 17 Wall. 651, to which the attention of the court has been called; itwlj.s found as a fact that the stowage was bad, and that the usual provisions for ventilation were. neglected; and the ship was consequently beld liable. In the present case there is no direct evidence to this effect; on the contrfl,rYI the only direct testimony upon the subject is to the effect, t411t the nuts were stowed in compartments in the usual manner; thllt the mOi;lt approved methods of ventilation were adopted, there being in compartment No.2 a horizontal shaft below with two extra vertical ventilating shafts; and that all the space that was usually left between the top of the nuts and the deck above was left open. Shipments of similar Brazil nuts to New York are made in large quantities in the same manner, and ordinarily with little loss. The testimony, moreover, does not show any lack of attention to the cargo on the voyage. Com,tant watch of its condition was maintained; the hatches were wholly removed in the day-time, when the weather would it, and in part at night. The heat of the cargo was observed, Qut 'no steaming, until near the close of the yoyage, when tempestuous weather made it necessary to keep the hatches closed for nearly three days. The only explanation the master could give was the considerable q\1Rntity of nuts in the No.2 compartment, viz., 230 tons; and that theuuts.werenew; and the bad weather of several days, during which the hatches had to be closed. The proof shows that nuts belonging to the first of the season's crop, namely, in February, are more lia,bleto become heated than those shipped later. Although the master Qfthis vessel had not previously carried so many nuts in the same compartment" tIle Pt:oof shows that it was not unusual to carry a much larger quantity without much injury, and with the same stowing and methods of ventilatiqn. Stowag!3 in the cua,tomary manner is sufficient. The Ohasca, 23 Fed. Rep. 159, and cases there cited. The libelants contend that damage to the extent of75 per cent. is so afford a strong presumption of negligence. If the extraordinary as whole amount stowed in compartment No.2 be considered, the percentage 'Of loss,however, is very llluch less than that.- 'rhe libelants' goods in this .compartment. were only ab()ut 50 tons out of the 230. They,received damage because they happened tQ be all on top. Computing upon the whole contents of the compartment, the damage does not appear to have been above 18 or 20 per cent. In the forward compartment the libelants' goods came out sound. Their goods in the second
672
FEDERAL REPORTER.
compartment, when shipped, were inferior in quality to those in the first compartment. No known means of ventilation, or of care of goods upon the voyage,are shown to have been neglected. Had th,\ stowage of 230 tons in .compartment No.2 been proved to be unusual, or excessive, or known by previous experience to be attended With special danger, or to require more of the special appliances for ventilation than were employed in this case, negligence in the vessel might be found; and proof of those facts, it must be assumed, could and would have been produced on the trial. No testimony to that effect is produced on behalf of the libelants, and I cannot interpret the master's statements as in the least equivalent thereto. The shippers also seem to have had a representative pr..esent at the loading, who must have been acquainted with the facts of the mode of stowage and of ventilating. No objection was made thereto; and there is no evidence of apprehension by any· oue of injury 'beyond the ordinary amount of damage in transportation, or the risks incident to new fruit shipped early in the season. As there is no sufficient evidence, therefore, of improper stowage, or want of proper care, the libel must be dismissed.
CARPENTER
v.
THE CLINTON. 1
(Di,lrict Oourt, E. D. New York. May 12, 1888.)
On the evidence. held, that the grounding of libelant's boat was not caused by negligence the tug, and the libel should therefore be dismissed.
.:
.
In Admiralty. Libel for damages. . . The libel alleged that libelant's canal-boat, which had been loading at a dock at Eaton's Neck, L. 1., had been taken out into the stream by the propeller Clinton; that in so doing the canal-boat had been run aground by the propeller. The answer averred that the Clinton was taking the canalboat out carefully, when the propeller herself ran that thereupon a line WRS passed from the canal-boat to her consort III the stream, and she began to warp the remainder of the distance; but by the negligence of those on the canal-boats the line became fouled, boat went ashore. The answer fm'ther averred that the propeller s serVlce was gratuitous. Carpenter Mosher, for libelant. . JaB. P. Albright, (P. A. Wilcox, advocate,) for claimant. BENEDICJr, J. I am unable to conclude from the evidence in th!scase that the grounding of the libelant's canal-boat was caused by neglIgence in the management of the tug proceeded against. The libel must therefore be dismissed, and with costs. I
Reported by Edward G. Benedict, Esq., of the New York bar.