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were supposed to be closed water-tight while at sea, were open and ajar. And the chief officer testified that during the voyage water had run over the door sill into the bunker space, and through it and out into No. 3 'tween deck.

It also appears that there was an iron pipe, about one inch in diameter, leading up from the fresh water tank, in the engine room through the main deck on the port side, somewhat aft of the No. 2 hatch coaming, for the purpose of supplying drinking water, etc., to the crew, and was constantly under pressure, so as to provide a flow of water to the faucet of the pipe, which was about 4 feet above the deck. The pipe was fastened with a bolted bracket where it passed through the deck. The testimony of the Munamar's witnesses is that this pipe was broken off at the deck by the heavy seas during the heavy weather on the night of April 1st, and as the decks were awash, and as the breaking of the pipe left a hole in the deck about an inch in diamater, and as the water continued to flow from the pipe, a considerable quantity of fresh and salt water ran down into the hold and found its way into the other compartments where the damaged sugar was found; that the water ran aft through the cargo door into the bunker space on the port side, in which some of the sugar was stored, and also through another cargo door in the afterpart of the bunker space into No. 3 'tween deck compartment, and wet the sugar, and that the broken pipe was not discovered until the following morning, because of the darkness and danger incident to being on deck during the heavy weather. They also testified that some other deck fittings and a portion of a ventilator under the topgallant forecastle were carried away. However, the ship's log made no mention of any damage, except to the pipe.

The weather from March 29th, when the Munamar left Antilla, until April 1st, was fair, light winds, calm sea. From that time until her arrival at Ambrose Channel, at 8:15 on the morning of April 2d, the entries in the Munamar's log relating to the weather are "a strong breeze;" "moderate gales;" "strong gale;" "rough seas;" "chipping heavy seas over vessel;" "taking spray over decks." The master, however, testified that late in the evening of April 1st the wind had been to the eastward, and it came up northwest, north and west, and blew a living gale for a long while, squalls and hurricane force at times, water coming over the ship at times and washing things away." The chief officer testified they had fine weather until the last night before they reached Ambrose Chan

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nel, when
it started in blowing
hard, had a gale of wind, squalls; we had
heavier intensity at times taking seas over
the decks; the decks were awash all night."
The chief officer also testified that, before the
cargo was loaded, he looked through all of
the holds to see that the ports were tight, and
that there were no leaking pipes, and that
the scuppers were clear; that he did not go
around tapping or hammering; that he just
looked around to see if they were leaking.

In answer to the following questions, the chief officer replied:

"Q. How, did the water get from No. 2 'tween deck into the port bunker and No. 3? A. There is a door in the forward end of the bunker and leading into 3, and a door in the after end into 3; you can walk, and the doors are not water-tight; the sill is about 6 or 8 inches high; it runs over that and into the bunker; we have scuppers in the 'tween deck, but they get plugged up.

"Q. How did the water get from the port bunker space into the No. 3 'tween deck? A. The same way; it went over this thing 6 or 8 inches high, and it went up into No. 3."

The Munson Steamship Line claimed freight amounting to $10,285.89, of which it has been paid $5,748.58; the balance of $4,537.31 was admittedly withheld by the Warner Sugar Refining Company to cover its alleged damage to the sugar.

The Munson Steamship Line, in its amended answer, denies that it was acting on this voyage as a common carrier, and sets up a contract of special carriage, which it alleged with the bill of lading constituted the contract of carriage and contained certain exemptions, which it pleaded as defense. [1] The charter party now under consideration gave the charterer the full capacity of the ship Munamar and as such it was not a common carrier, and the Harter Act (27 Stat. 445 [46 USCA §§ 190–195; Comp. St. §§ 8029-8035]) would not of its own force have applied, but the contracting parties have expressly made it a part of their contract, which they were at liberty to do. The G. R. Crowe (C. C. A.) 294 F. 506. Therefore, in order for the Munson Steamship Line to clear itself from liability for damage to the sugar, it must show that it used due diligence to make the vessel seaworthy, provided in the Harter Act, §§ 1 and 2 (46 USCA § 190, 191 [Comp. St. §§ 8029, 8030]). [2] The Munson Steamship Line urges that it has not pleaded and attempted to take advantage of the Harter Act as a defense, and that it relies solely on the stipulation in the contract by which it is exempted from loss or

23 F.(2d) 194

damage due to wetting, perils of the sea, etc. However, the Warner Sugar Refining Company has the right to rely upon all the terms of the agreement entered into, and the provisions of the Harter Act have been expressly incorporated in the charter party, paragraph 7, and in the bill of lading, paragraph 6. It is also to be noted that the contract of carriage itself stated (paragraph ninth, quoted above): "Nothing herein contained, however, shall be deemed to limit the bill of lading provisions which shall comply after the steamship becomes responsible for the cargo." And further, that paragraph 2 of the bill of lading, after mentioning a list of conditions for which the shipowner shall not be liable, including unseaworthiness, states: "Provided the owners have exercised due diligence to make the ship seaworthy."

It is evident, therefore, from reading "the contract of carriage, charter party, and bill of lading," that it was the intention of the parties that the exemptions from liability were dependent upon the condition that the shipowner used due diligence to make the ship seaworthy. Therefore it seems clear that the question to be determined is whether the breaking of the pipe and the wetting of the sugar were occasioned by the failure of the shipowner to exercise due diligence. The Cornelia (D. C.) 15 F. (2d) 245, 1926 A. M. C. 1337.

[3] Specifically, the question in the case at bar is whether the shipowners exercised proper care to see that this water pipe, which broke and allowed water to run down into the hold and flow into the several compartments where the sugar was, and to congregate there because the scuppers were clogged, was in good condition when the sugar was taken aboard. This record fails to show that they had made a very diligent effort in this respect. The only testimony as to the condition of the pipe at that time was that of the first officer, who testified that before taking on cargo he looked through all the holds and saw that there was no leaks in the pipes; that he made no other tests or examinations. There is no information as to the age of the pipe, whether it was eaten with rust, or what its actual condition was. This falls far short of convincing one that the pipe was in sound conPractically all that his testimony amounted to in this respect was that the pipe was not leaking at that time.

If a vessel owner is satisfied to rely on external appearances that the vessel and her appliances are in such good order that it is safe to take cargo on board, instead of making fair examinations and tests, the vessel

owner assumes the responsibility for such defects as may exist and which a diligent examination would reveal. And a shipowner has not sustained the burden of exercising due diligence by a mere superficial inspection; nor where the inspection or the evidence is insufficient to support a finding of good condition, or that a diligent effort had been made to put her in good condition. The Southwark, 191 U. S. 1, 24 S. Ct. 1, 48 L. Ed. 65; The Wildcroft, 201 U. S. 378, 26 S. Ct. 467, 50 L. Ed. 794; The Charlton Hall (D. C.) 285 F. 640; The Leerdam (D. C.) 8 F. (2d) 295, affirmed (C. C. A.) 17 F.(2d) 586, 1927 A. M. C. 509.

The Munson Steamship Line, in support of its contention that the pipe broke, not because it was weak, but because extraordinarily heavy weather was met with, refers to the testimony of its witnesses that certain other deck fittings, including a portion of a ventilator, were torn off, although it is to be noted that these other items were not mentioned m the Munamar's log; but, even if they were, this may indicate that they, too, were weak and in poor condition, for all that the record shows. The evidence does not indicate weather conditions sufficiently severe or extraordinary to break a sound and properly installed pipe.

Neither the log nor the testimony of the master or the chief officer states the velocity of the wind; the master, however, characterized it "a living gale, squalls and hurricane force at times." In view of the entries in the log and all the other circumstances, I think he has probably unduly emphasized the severity of the weather, and that the Munamar met with nothing more than heavy winds and seas, which an able ship should be prepared to withstand.

Although I am inclined to accept the log as more correctly reflecting the real condition of the weather than the testimony of the master and the chief officer, even their testimony is not convincing that the Munamar "met with any storm of that extreme violence which has long been counted as excusing peril of the sea for a ship thoroughly seaworthy and properly equipped and well found," quoting from Judge Hough's opinion in The Edith (C. C. A.) 10 F. (2d) 684, where the testimony was of strong easterly gales, with seas washing heavily over the ship, and wind estimated at 75 miles an hour, and described by the master as one of the worst storms in his experience. See, also, Governor Powers (D. C.) 243 F. 961; The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 38 L. Ed. 688; The Rosalia (C C. A.)

264 F. 285; The Giulia (C. C. A.) 218 F. 5. Shipping 132(5%)-Evidence held not to 744.

For the above reasons, it is unnecessary to consider whether diligence had been used to keep the scuppers clear, so that water would not congregate in the bunkers, where the sugar was stowed, and, of course, proof is lacking that breaking of the pipe was due to a latent defect.

Accordingly the cross-libelant and respondent, the Munson Steamship Line, may have an interlocutory decree against the libelant and cross-respondent, Warner Sugar Refining Company, for such freight as may be due on the cargo, less the amount of damage sustained to its shipment of sugar, with a reference to a commissioner to determine the amount of freight due and the amount of the damage.

THE H. A. ROCK.

District Court, W. D. New York. November 2, 1927.

1. Shipping 101-Ship, whose entire cargo was shipped by one shipper to certain mill and elevator corporation, was private carrier.

Ship, whose entire cargo was, according to bill of lading, shipped by one shipper to order of certain mill and elevator corporation, was private carrier.

2. Shipping 141 (3)-Winds not amounting

to storm on Lake Michigan and ice field on Lake Erie held not "peril of the sea."

Fresh winds not amounting to storm on Lake Michigan and ice field on Lake Erie held not peril of sea, which would excuse broken water pipe on ship; "peril of the sea" being storm or condition catastrophic in character.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Perils of the Sea.]

3. Shipping132(5)—Evidence held insufficient to show that breaking of water pipe on

ship, which damaged cargo, was due to negli

gent navigation through ice field.

Breaking of water pipe on ship, resulting in damage to cargo, held not due to negligent navigation of ship by master through ice field in Lake Erie, in view of evidence, where mas

show sufficient inspection of ship before sailing to determine seaworthiness, in view of method of inspecting pipe which broke.

Evidence held not to show that due diligence was used to inspect ship prior to sailing to determine seaworthiness, where pipe which broke during voyage, damaging cargo, was not tapped with hammer or otherwise to determine sound

ness.

6. Shipping 132(3)—In action for damage to cargo from broken pipe, shipowner must show that due diligence was used to make vessel seaworthy before voyage.

In action against shipowner for damage to cargo by breaking of pipe during voyage, bur

den of proving that due diligence had been used

to make vessel seaworthy before voyage is on shipowner.

7. Shipping 1-Purchaser of grain, to whom bill of lading was indorsed and delivered, is proper party to sue for subsequent damage to cargo.

One who bought grain, and to whom bill of lading was indorsed and delivered, became owner of cargo, and was proper party to bring suit for subsequent damage.

In Admiralty. Libel by the Eastern Grain Mill & Elevator Corporation against the steamer H. A. Rock, her engines, boilers, etc.; the Forest City Steamship Company, claimant. Decree for libelant.

Holding, Duncan & Leckie, of Cleveland, Ohio, for libelant.

Kelley, David & Cottrell, of Cleveland, Ohio, and Single & Single, of New York City (Forrest E. Single, of New York City, of counsel), for respondent.

ADLER, District Judge. [1] On January 20 to 22, 1926, a cargo of 244,675 bushels of No. 2 white oats was loaded on board the steamer H. A. Rock at Chicago. The oats were held at storage there during the winter, and were to be carried by the steamer to Buffalo at the opening of navigation. entire cargo was, according to the bill of lading, shipped by one shipper, Rosenbaum Bros., Inc., to the order of Eastern Grain Mill & Elevator Corporation, Buffalo, New York. The ship was therefore a private carrier. The testimony is that the cargo was

The

ter did what all other ship captains, of which purchased and the bill of lading was indorsed

there were 40 or 50 in vicinity, were doing.

4. Shipping 121(1)—In every contract for carriage of goods by sea, unless otherwise stipulated, there is warranty that ship is seaworthy at beginning of voyage.

In every contract for carriage of goods by sea, unless otherwise expressly stipulated, there is warranty on part of shipowner that ship is seaworthy at beginning of voyage, and not merely that he does not know her to be unseaworthy, or that he has used best efforts to make her seaworthy.

in blank by Rosenbaum Bros., Inc., and was delivered to the libelant on or about April 8, 1926.

Before sailing, the ship was inspected by the United States local inspectors, and there were other independent inspections. The ship sailed from Chicago at 1:20 a. m. on May 3, 1926. It encountered fresh winds, not, however, amounting to a storm, on its trip down Lake Michigan. The trip was un

23 F.(2d) 198

eventful until the ship arrived to within 40 or 50 miles of Buffalo, when, at the eastern end of Lake Erie, it encountered a field of ice. It reached this ice field about May 7th, and did not get through the ice and arrive at the elevator at Buffalo until the evening of May 13th. There were 40 or 50 vessels attempting to make their way through this field of ice at that time; some of them on their way to Buffalo, and others leaving Buffalo. The captain of the Rock apparently used the same tactics and methods as the other masters of vessels in his attempt to buck his way through the ice. The vessel would be backed up, and it would then be forced ahead at full speed, until slowed up and stopped by the ice field, and then the process would be repeated. The testimony is that on May 7th the Rock was assisting another steamer, the Crowley, to make its way through the ice; that while doing so the Rock's propeller came in contact with floating ice, and the ends of all four blades were broken off. Thereafter their progress was very slow, and she was ultimately taken to the dock by a tug.

The testimony is that the propeller blades were broken on the evening of May 8, 1926. About that time the wheelman of the Rock started to go into the hold in order to oil the steering gear. He testified that, when he raised the manhole hatch, he heard water running, and discovered that it was running from a break in the joint of the water service line where it led up through No. 1 cargo compartment. The joint where the break occurred was a short distance below the deck. He said that he immediately told the captain, and the testimony is that the broken joint was repaired. There is a conflict in the testimony as to whether this break was discovered before or after the breaking off of the propeller blades. Witnesses for the respondent testified that the break in the water service line was discovered the day after the propeller broke. Other witnesses, members of the crew, testified that the leak in the service line was discovered before the propeller was broken. The broken joint was immediately repaired, and it appears that the broken pieces were immediately thrown overboard into the lake.

The ship arrived at the dock in Buffalo on the evening of May 13, and began to discharge cargo on May 14, 1926. It was then found that the grain in the ship had been damaged by a large quantity of water that had run into the cargo. In No. 1 hold there was a pyramid of a mass of blackened and burned grain under the deck on the port

side forward of No. 1 hatch, which was at the place where the break in the pipe occurred. In the No. 1 hold the depth of damage of the grain was in the neighborhood of 15 feet practically all over the compartment. In No. 2 compartment the grain was wetted and damaged up to 4 feet deep at the forward end and 2 feet deep at the after end, approximately. In No. 3 hold the grain was damaged about 2 feet deep at the forward end of the hold, and extended aft for a distance of about 30 feet. Immediately under the point where the pipe had burst, the grain was blackened and burned, and there was considerable growth of grass. The damaged grain was reconditioned and a great part of it salvaged. A certain quantity was thrown overboard.

There is no dispute as to the condition of the cargo at the time of its loading at Chicago, and at the time of its unloading at Buffalo. There is no dispute that the damage to the cargo occurred from the water flowing into the cargo from the broken joint in the water service line.

[2] The contention of the respondent is that the broken pipe, from which water was discharged into the cargo, was broken either by an accident of navigation, due to a peril of the sea, or that it was broken by reason of negligent navigation on the part of the officers of the ship; that in either event the respondent is not liable. I am led to the conclusion that the weather met with by the ship in its run down Lake Michigan, which was suggested as being sufficiently stormy to bring about the breaking of the pipe, was not unusual weather, and does not come within the description of a peril of the sea. It was not sufficiently severe to break a sound and properly installed pipe. The only other period in the voyage during which it is contended that the danger of navigation or peril of the sea was responsible for the breaking of the pipe was when the ship passed through the ice field in the eastern end of Lake Erie.

The accepted definition of a "peril of the sea" is a storm or a condition catastrophic in character. I find that the condition of the lake in the vicinity of Buffalo at the time the Rock pushed its way through was not of such a character. It was a condition of navigation reasonably to be expected in the lake at that time of the year, and not only were a large number of ships entering Buffalo at the same time the Rock did, but a number of others left the port of Buffalo at that time, knowing that the ice field was directly before them. Navigation of the field of ice through which the Rock passed in entering

Buffalo was not of a character to burst or break a properly constructed pipe or elbow. The Charlton Hall (D. C.) 265 F. 640. [3] There is the further question as to whether, if the pipe was broken during the passage of the Rock through the ice, the break resulted from the negligent navigation of the ship by its master. Upon this point there was evidence given to the effect that the master of the Rock assisted another ship, the Crowley, to break through the ice; that in doing so he misused and strained his vessel to such an extent that the ends of the propeller blades were broken off, and it is suggested that the break in the water pipe occurred at or about the same time. I find that this contention is not borne out. The master of the Rock was doing only what all of the other ship captains, of which there were 40 or 50 in the vicinity, were doing at the same time. The ice field in question was not a solid mass of ice, but it was a field of soft material, through which all the shipowners on the lakes found it practicable to navigate although necessarily slowly.

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I do not find from the evidence that there was such a shock or wrenching to the vessel as the result of this process through the ice field as to rupture a properly constructed pipe within the vessel itself. In fact, with the exception of the breaking off of the tips of the propeller wheel, which resulted from their striking a solid piece of ice, there is no evidence of any destruction or disturbance of any other part of the vessel's structure. In the case of this particular pipe or elbow, the hanger which connected it with the deck of the ship was not disturbed or moved out of place, and many other parts in the interior of the ship were much frailer in construction than the joint in the water service line, and were not disturbed. In fact, the elbow which was said to have been broken is of much heavier construction than any other part of the pipe.

[4] Finding, as I do, that the break did not occur through peril of the sea or negligent navigation, after the ship left its berth at Chicago, did the respondent exercise due diligence to make her seaworthy on sailing, and was she in fact seaworthy? The case of the Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644, is authority on the question of the warranty of seaworthiness. In that case the court quotes the following language:

"In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the

time of beginning her voyage, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make her seaworthy. The warranty is absolute that the ship is, or shall be, in fact seaworthy at that time, and does not depend on his knowledge or ignorance, his care or negligence."

Chief Justice Fuller says in the opinion: "We see no reason to doubt the correctness of the rule thus enunciated. The shipowner's undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects."

The result is that the warranty of seaworthiness is absolute, and does cover latent defects not ordinarily susceptible of detection. The Edith (C. C. A.) 10 F. (2d) 684, and cases cited.

[5] There was considerable evidence offered on the part of the respondent to the effect that inspections were carefully made prior to the sailing of the vessel, and the vessel was pronounced seaworthy in every particular. I have examined carefully the evidence on this subject, and I believe that it would have been easily possible for the inspectors to have overlooked a flaw or break in this particular pipe. When the piping was being inspected, there was no water going through the fresh water line, and on account of the location of the elbow, and the short piece of pipe involved in this particular case, a break or hole would not have been easily discernible from an ordinary inspection.

[6] When water was pumped through the fresh water line it was necessary to use the large pump to get the required pressure. There is no evidence that the pipes were tapped with a hammer or otherwise to determine their soundness. The burden of proving that due diligence has been used to make a vessel seaworthy is upon the shipowner. The evidence does not disclose that such due diligence was exercised in this case. The Leerdam (C. C. A.) 17 F. (2d) 586; The Wildcroft, 201 U. S. 378, 26 S. Ct. 467, 50 L. Ed. 794; The Southwark, 191 U. S. 1, 24 S. Ct. 1, 48 L. Ed. 65; Warner Sugar Refining Co. v. Munson Steamship Line (Southern Dist. of N. Y., July 22, 1927) 23 F. (2d) 194, 1927 A. M. C. 1437; W. T. Lockett Co. v. Cunard S. S. Co. (D. C.) 21 F.(2d) 191.

In view of the conclusions I have ar

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