Astsrup v. Lewy

19 F. 536, 1884 U.S. Dist. LEXIS 32

• Court: District Court, S.D. New York
• Decided: February 7, 1884
• Status: Published

Opinion

Brown, J.

Upon the evidence in this ease- it must be held that the sinking of the keel and bottom of the bark prior to her arrival at Cowes was an unusual and extraordinary occurrence. Camming, a stevedore, one of the experts in behalf of the vessel, testified that-with heavy cargoes on the ship’s bottom, it was not unusual that there should be a sinking of from one to three inches, but that he never knew of a case of a sinking of five inches; and that, in his judgment, 150 tons, with possibly 20 additional, would have been a suitable weight over a space of from 40 to 60 feet along the center of the vessel, and that the sinking of the bottom, to which he refers, might or might not cause the ship to leak, according to circumstances. The mate says that her bottom dropped from four to five inches at sea, and from three to three and a half when lying still at Cowes. Karbek, the carpenter, testified that “the ship gave way; she sank in the middle four inches.” Other witnesses make it from three to four inches. Although the bark met with a severe gale, which came on during the afternoon of April 21st, it was scarcely more than of 24 hours’ duration, since the protest expressly states that it abated on the evening of the 23d. The sea is spoken of as running very high, and some water swept the deck; but, it must be noted, that nothing was carried away, nor a spar lost; and it seems to me that the testimony of the experts on behalf of the shippers, and their judgment, considering the circumstances above mentioned, are entitled to the greater weight, and that there was nothing so extraordinary in the weather encountered on the twenty-first and twenty-second of April as to account for the extraordinary result upon the ship, and for her dangerous leaks, had she been seaworthy in both hull and stbwage when she sailed. Accepting the testimony of the master, that her hull was in good condition when she left Libau, ana her rating A1 three years previous, the only adequate cause that ean be perceived for this extraordinary result is in the mode of loading the iron rails, namely, too great quantity amid-ships. The evidence leaves no doubt that the chief sinking of the vessel at the bottom was in the middle, from the fore part of the main hatch to the after hatch, and this is where it appears, upon satisfactory proof, that the ship was overloaded. Cumming, the expert in behalf of the vessel, would allow as proper but 150 to 170 tons weight along that portion of the ship; the evidence indicates that there were at the least 225 tons within that space, and probably considerably more. Nine hundred and sixty-two of the rails were placed in the trunk-way in that part of the ship; if of average weight, they alone amounted to 176 tons. The trunk-way, which was on top of the first course of rags, was eight feet wide, running fore and aft along the center. The general mode of stowage was approved by all the witnesses, provided the upper course of rails was sufficiently distributed in length fore and aft. While the testimony on this point is not so exact and explicit as could be desired, the inference from the testimony of the mate and stevedore is strong that this trunk-way was amid-ships, and did not extend to the' fore-mast, as claimed. The expert for the vessel testified that the frequent loosening of the stanchions, to which he referred, was between the main-mast and the fore-mast, and that there ought not to be weight enough aft to loosen the stanchions in the end of the ship; and that the loosening- he referred to was 'not from the dropping of the keel, but, from the ends of the beams going down. In this case, the chief dropping of the bottom was from the main hatch aft; while the captain and all the other witnesses from the ship spoke of her bottom and keel as giving way in the middle; “not worth mentioning,” the captain said, “except in the middle.” The mate said “the bottom sank four inches, and in the seas kept jumping up and down from four to five inches.” The carpenter said “the ship gave way; she sank in the middle four inches.” The weight of the cargo in the middle, even according to the testimony of the ship’s own expert, with the corresponding special injury and extraordinary leaking arising from her bottom’s giving way, particularly in just that part of the ship, seem to me to leave no reasonable doubt that she was ’overloaded in the center; and the testimony of the master, that the rails were loaded by a common laborer, while a stevedore was employed to load the rags only, would indicate that the overloading of the center arose from a want of suitable judgment and experience in the distribution of the cargo. As I must find, therefore, that this improper stowage was the cause of the vessel’s giving way at the bottom, it follows that the ship must answer for the damage caused by the giving-way of the vessel and by the consequent leak; since, in such a case, the damage is not to be ascribed to perils of the sea, but to the negligence and fault of the vessel. Clark v. Barnwell, 12 How. 280; The Regulus, 18 Fed. Rep. 380.

2. Under the circumstances of this case, I cannot doubt that it was the duty of the master, by the general maritime law, to communicate with the shipper before soiling the damaged rags at Cowes. Communication between Cowes and Libau could be had in the ordinary course of mail within three days, and by telegraph within twenty-four hours. There was abundant time and opportunity for communication. The ship was laid up there several weeks for repairs, and the rags were condemned by the surveyors as unfit to be takondo New York on the third of June, a week after the ship’s arrival at Cowes. It is not questioned that, under the English maritime law, notice to the owner, where notice is easy and practicable, is an essential condition of a master’s authority to sell orto hypothecate cither the ship or cargo, whether the object be to obtain money for the repair of the ship, or merely the sale of damaged or perishable goods. Acatos v. Burns, 7 Exch. Div. 232; The Australasian, etc., v. Morse, L. R. 4 P. C. 222; Cammell v. Sewell, 3 Hurl. & N. 634; The Gratitudine, 3 C. Rob. 240; The Hamburg, 2 Marit. Law Cas. 1; Atlantic Mut. Ins. Co. v. Huth, 16 Ch. Div. 474. These cases all rest upon one common principle, that the master, by virtue of his general authority, does not have any right to sell or hypothecate either the ship or the cargo; that his' authority in those respects rests upon necessity solely and upon the particular emergencies of the occasion; and that this authority is therefore limited by the nature and extent of the necessity. If the owner is at hand and can be easily communicated with, the master must advise the owner of the facts, and take his directions; and where such directions may be obtained, there is neither necessity, nor authority, nor justification for the master to assume to sell or to hypothecate without notice. These principles I understand to he substantially adopted by the supreme court In the case of The Julia Blake, 107 U. S. 418, [2 Sup. Ct. Rep. 191,] affirming the jndgment of the district and circuit courts of tins district. 16 Blatchf. 472. See, also, The Amelic, 6 Wall. 18, 27; The C. M. Titus, 7 Fed. Rep. 826, 831; Butler v. Murray, 30 N.Y. 88, 99; The Joshua Barker, Abb. Adm. 215; Pope v. Nickerson, 3 Story, 465; Myers v. Baymore, 10 Pa. St. 114; Hull v. Franklin, etc. Ins. Co. 9 Pick. 466; Pike v. Balch, 38 Me. 302. In a case like the present, where there was no need of selling the cargo for the benefit of the ship, but the sale was made for the reason only that the damaged cargo could not properly be taken to the port oí destination, and where there was abundant time and means of communication with the owner or shipper to ascertain his wishes as to the disposition of his goods, there was plainly no necessity for a resort by the master to any extraordinary and exceptional powers. While I should sustain, therefore, the principle invoked by the counsel for the shipper, I am not prepared to find, upon the case as submitted, sufficient evidence of remissness on the part of the master to hold the sale unauthorized.

No question was made as to the want of notice in the pleadings in either of these two eases. In the examination of witnesses upon commission, no question was put by way of examination or cross-ex-aminatiorL upon this subject, nor in the examination of tüe master here in 1880 was any allusion made to it by counsel on either side. The counsel at Cowes, in his deposition, however, in answer to the last general interrogatory on the part of the ship, stated that his firm, as agents, and the captain personally, communicated with the shipper at-Libau; but the shipper made no reply, and gave no directions. From this answer it is obvious that the consul, under whose advice the several surveys and repairs of the ship, as well as the surveys and sales of the cargo, were made, was familiar with the well-settled English rule requiring notice to be given; otherwise he would not naturally have volunteered this testimony without his attention being directed to the subject. This, of itself, furnishes a strong presumption in aid of his own testimony that such communication was sent, and that no answer was received. Upon the trial, counsel for" the shipper moved to strike out this answer, for the reason that it was volunteered, and was upon a subject as to whi. h the witness was not interrogated, and as to which there had consequently been no opportunity for cross-examination. The commission, however, had been returned and filed more than a 3ear before the ease was brought on for trial, and the court declined to strike out the testimony, for the reason that it was material, and because there had been abundant opportunity either for the motion to strike out to be made earlier, or for the return of the commission for further cross-examination if that had been desired; and as neither party had taken any steps in regard to this part of the commission, the answer should be allowed to stand. Although the consul’s answer is. quite general, and does not state what particular facts were communicated to the shipper, yet as the evidence of a public officer, acting in discharge of known duties under the maritime law,.and in no way personally interested, it seems to me tha$ every intendment is to be made in its favor. The goods being consigned to order, only the shipper’s name was known; no other communiqation or notice was therefore required than to the shipper; and the consul’s statement is that they communicated with the shipper at Libau and got no answer nor any directions. Du^ng the long time that has elapsed since this commission was returned and filed there has been abundant opportunity to obtain the shipper's testimony by commission, and to 'show, if such was the fact, that no such communication was ever received, or if received, that it was too late, or for any other reason insufficient. As no evidence of this kind has been procured, and no reason given for not obtaining it, if material, I think the answer of the consul, though brief and general, is nevertheless ‘prima facie sufficient evidence of compliance with the obligation to communicate with the owner. The objection upon this ground cannot, therefore, be sustained.

3. In regard to the sale itself I see no reason to doubt that it was fairly conducted, with every reasonable preliminary effort to do the best that could be done, and to realize the best priees for the damaged goods. It appears to have been well advertised; a numerous eomiu'ny was in attendance on the sale, and the competition brisk. No evidence was adduced that the prices obtained were inadequate. The fact that one of the purchasers, shortly after the sale, sold his lot at moro or less profit, the amount not stated, is not sufficient evidence that the sale was unfair or the price realized too low.

4. The evidence as to the condition of the rags when “the hatches were opened on the twenty-third of April, and when the bark arrived at Cowes on the twenty-seventh, is such that I cannot resist the conclusion that a part of the rags was not shipped in good order. The evidence as to the filthy, rotten, and offensive condition of many of the bales when unladen a few days after the arrival at Cowes, some being so hot as to be actually smouldering, is so strong as, in my judgment, to necessitate the inference of bad condition when shipped. The qualification on the bill of lading, “quality, weight, and marks unknown, ” takes away any presumption which might otherwise be derived from the bill of lading, of good condition internally when put aboard, and leaves this question entirely open to any inferences which may be properly drawn from the proofs. Clark v. Barnwell, 12 How. 272; The Querini Stamphalia, 19 Fed. Rep. 123, and cases cited. In the absence of any testimony as to the condition of the rags when shipped, or as to the time within which sound rags might become injured to such a degree from sea-water, the damages, as described by the witnesses, seem to me too great to be ascribed solely to the leak arising on the twenty-second of April.

In the libel filed by Lewy and others, the libelants are therefore entitled to a decree for such damages to the rags as arose from the giving way of the bottom of the vessel in the storm of April 21st and 22d, and a reference will be ordered to compute this damage. As the evidence is very meager and is insufficient to form any confident or certain judgment concerning the condition of the rags when shipped, the whole question touching that matter, as affecting the damages caused by the fault of the ship, may be heard before the commissioner upon this reference on such further evidence as either party may introduce, without prejudice from anything herein contained on that subject. The ship will be responsible for such injury only as is properly attributable to her springing a leak on the twenty-second of April through the giving way of her center, excluding whatever damage may have arisen from any improper packing or condition of the rags then shipped, if any such be found. Upon this reference, also, flie condition of the rags that arrived in New York will necessarily form a part of the evidence bearing upon the question of the condition of the rags when originally shipped; and hence any question of damage to the bales which were delivered here should also be determined now, to avoid further suits on the same subject; and an amendment of the pleadings may be made accordingly, as moved for. The North Star, 15 Blatchf. 532, 536.

An order in conformity herewith may be settled on two days’ notice.