TANEY, Circuit Justice.
The appellants in this case, who were the respondents in the district court, are the owners of the ship Cheoseborough, which sailed from Baltimore for Liverpool, on the 30th of October, 1851. The appellees were libellants in the court below. They shipped by the Cheeseborough, on this voyage, a large quantity of wheat in bulk; the wheat, however, did not load the vessel, and part of her cargo consisted of tobacco, flour and other articles, shipped by other persons.
It appears from the testimony, that the ship was detained (it is presumed by contrary winds) in the Chesapeake Bay; for she did not get to sea until the 4th of November. She went to sea with a fine strong breeze; but during that night, the wind increased, the sea became more rough, and the topsails were double-reefed; the next day, she had strong gales and a heavy sea, in the Gulf Stream, the vessel shipped a great deal of water, and rolled and pitched heavily; and on the afternoon of that day, a good deal of wheat was brought up by the pumps. On the third day out, the pumps choked from the quantity of wheat that got into them, and on the night of that day, the officers and crew presented to the captain a written request to put into the first port; stating in their application, that for two or three days they observed wheat drawn up by the pumps; that on the day before, a large quantity was brought up, and on the day they made the request, the pumps had choked; in speaking of days in this application, the seamen, of course, mean sea-time. The master did not, however, yield immediately to this application, but continued on his course, in the hope that he would be able to reach Liverpool in safety. But the pumps became almost useless from the quantity of wheat that escaped from the bin, and finding from an examination, made on the 11th of November, that the wheat was damaged, and some of it entirely spoiled, that the vessel had become loggy, and that the water was increasing in the hold, he determined to steer for the nearest convenient port, and arrived at St. Thomas on the 13th of the month.
Upon the arrival of the vessel at that port, it appeared, upon examination, that she had two feet of water in the hold, and the space between the bottom of the bin and the skin or ceiling of the vessel was filled up with wet and damaged wheat, which was spoiled and had become offensive in its odor. It was found necessary, upon survey, to unlade the vessel, in order to cleanse her from the damaged and putrid wheat, and put her in a condition to pursue her voyage to Liverpool. The wheat was landed in bags, the sound and undamaged part of the cargo separated from the rest, the damp and swollen part, which it was supposed could be saved, was placed in bags marked with a cross, and the portion which had become utterly spoiled was thrown in the sea, under the orders of the local authorities. After the vessel had been properly cleansed and refitted, the cargo was reshipped, and the vessel pursued her voyage to Liverpool, where she arrived safely and delivered the cargo in good order. The wheat was reshipped in bags, and owing to the want of proper contrivances at St. Thomas, for stowing the hogsheads of tobacco, as compactly as had been done at Baltimore, and owing also to the greater space occupied by wheat in bags, beyond that required for the same quantity in bulk, it was found impossible, upon reloading the vessel, to take on board the whole cargo, and eleven hundred and sixty-nine bags of the wheat marked with a cross were unavoidably excluded; in the language of one of the witnesses, the ship was chock and block full without them. The master, finding himself unable to take those bags, directed them to be sold at St. Thomas, at public auction, and took with him the proceeds of this sale to Liverpool, and paid them over to the libel-lants, under an agreement that the acceptance of this money should not prejudice any lawful claim they might have to a larger compensation for the loss they had sustained. And this suit is brought to recover the value of the wheat thrown away or sold at St. Thomas, upon the ground that the loss .was occasioned by the negligence or misconduct of the ship-owners or their agents, or the want of seaworthiness in the ship, and that they are chargeable, therefore, with the amount which this portion of the wheat would have been worth if it had been brought to Liverpool safe and uninjured. The respondents, on the contrary, insist that the loss was occasioned by the perils of the sea, and that they are not liable for it as carriers, under the bill of lading.
The bill of lading is in the usual form; and as a loss by the perils of the sea is an exception to the undertaking of the carriers to deliver the cargo safely at the port of delivery, it is undoubtedly incumbent upon the respondents to show, that the loss in question was occasioned by such peril, otherwise, they are liable for the whole damage sustained by the libellants. The libellants insist that there is no sufficient proof of any storm or peril of the sea, that could have produced this disaster; and it has been argued, that it must have arisen, either from carrying too much sail, and thereby straining the ship, the first day out, when she appears, by the log-book, to have been pressed so rapidly through the water, or from some defect in the construction of the bin, or in the arrangement of the pumps.
It is true, that the storm was not violent enough to dismast her or to carry away her sails; but the evidence shows that it blew heavily, that the sea was rough, and that the vessel was rolling and pitching in it, before any inconvenience was experienced from the wheat in the pumps.
There is not the slightest evidence that the [479]*479ship was strained by carrying too much sail in heavy weather; and the proof is positive and uncontradicted, that the bin was constructed by one of the most experienced ship-joiners in Baltimore, and was examined by him ,and the master of the vessel, before the wheat was put in, and found to be without fault; and their judgment is confirmed upon the survey made at St. Thomas after the wheat was unladen, and the construction of the bin examined by the surveyors; and the proof is equally positive and uncontra-dieted, in relation to the sufficiency, and indeed, the excellency of her pumps.
Now, trying this case upon the testimony before the court, the conclusion is inevitable, that the loss was occasioned by the perils of the sea; for the ship is proved to have been among the strongest ever built in Baltimore; and if the bin was properly constructed, the pumps properly arranged, the vessel seaworthy, and there was no negligence or misconduct of the master in navigating her, there is nothing but the perils of the sea to which the disaster can be imputed. The master and the surveyors at St. Thomas attribute the damage sustained by the cargo to this cause; and this conclusion is further strengthened by the fact, that this ship, strong as she was, had been so strained by the rough weather to which she was exposed,, that she leaked considerably more than at the beginning of the voyage, and required a good deal of caulking in her upper works, to enable her to proceed from St. Thomas to Liverpool.
No doubt a vessel laden with wheat in bulk is more liable to sea-damage than with some other cargo; and she may be disabled from proceeding on her voyage by encountering winds and waves, through which a different cargo might pass without injury to the vessel or cargo. But it is not suggested that vessels of a different description from this, or differently fitted out, or differently laden, are required to transport wheat in built.
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TANEY, Circuit Justice.
The appellants in this case, who were the respondents in the district court, are the owners of the ship Cheoseborough, which sailed from Baltimore for Liverpool, on the 30th of October, 1851. The appellees were libellants in the court below. They shipped by the Cheeseborough, on this voyage, a large quantity of wheat in bulk; the wheat, however, did not load the vessel, and part of her cargo consisted of tobacco, flour and other articles, shipped by other persons.
It appears from the testimony, that the ship was detained (it is presumed by contrary winds) in the Chesapeake Bay; for she did not get to sea until the 4th of November. She went to sea with a fine strong breeze; but during that night, the wind increased, the sea became more rough, and the topsails were double-reefed; the next day, she had strong gales and a heavy sea, in the Gulf Stream, the vessel shipped a great deal of water, and rolled and pitched heavily; and on the afternoon of that day, a good deal of wheat was brought up by the pumps. On the third day out, the pumps choked from the quantity of wheat that got into them, and on the night of that day, the officers and crew presented to the captain a written request to put into the first port; stating in their application, that for two or three days they observed wheat drawn up by the pumps; that on the day before, a large quantity was brought up, and on the day they made the request, the pumps had choked; in speaking of days in this application, the seamen, of course, mean sea-time. The master did not, however, yield immediately to this application, but continued on his course, in the hope that he would be able to reach Liverpool in safety. But the pumps became almost useless from the quantity of wheat that escaped from the bin, and finding from an examination, made on the 11th of November, that the wheat was damaged, and some of it entirely spoiled, that the vessel had become loggy, and that the water was increasing in the hold, he determined to steer for the nearest convenient port, and arrived at St. Thomas on the 13th of the month.
Upon the arrival of the vessel at that port, it appeared, upon examination, that she had two feet of water in the hold, and the space between the bottom of the bin and the skin or ceiling of the vessel was filled up with wet and damaged wheat, which was spoiled and had become offensive in its odor. It was found necessary, upon survey, to unlade the vessel, in order to cleanse her from the damaged and putrid wheat, and put her in a condition to pursue her voyage to Liverpool. The wheat was landed in bags, the sound and undamaged part of the cargo separated from the rest, the damp and swollen part, which it was supposed could be saved, was placed in bags marked with a cross, and the portion which had become utterly spoiled was thrown in the sea, under the orders of the local authorities. After the vessel had been properly cleansed and refitted, the cargo was reshipped, and the vessel pursued her voyage to Liverpool, where she arrived safely and delivered the cargo in good order. The wheat was reshipped in bags, and owing to the want of proper contrivances at St. Thomas, for stowing the hogsheads of tobacco, as compactly as had been done at Baltimore, and owing also to the greater space occupied by wheat in bags, beyond that required for the same quantity in bulk, it was found impossible, upon reloading the vessel, to take on board the whole cargo, and eleven hundred and sixty-nine bags of the wheat marked with a cross were unavoidably excluded; in the language of one of the witnesses, the ship was chock and block full without them. The master, finding himself unable to take those bags, directed them to be sold at St. Thomas, at public auction, and took with him the proceeds of this sale to Liverpool, and paid them over to the libel-lants, under an agreement that the acceptance of this money should not prejudice any lawful claim they might have to a larger compensation for the loss they had sustained. And this suit is brought to recover the value of the wheat thrown away or sold at St. Thomas, upon the ground that the loss .was occasioned by the negligence or misconduct of the ship-owners or their agents, or the want of seaworthiness in the ship, and that they are chargeable, therefore, with the amount which this portion of the wheat would have been worth if it had been brought to Liverpool safe and uninjured. The respondents, on the contrary, insist that the loss was occasioned by the perils of the sea, and that they are not liable for it as carriers, under the bill of lading.
The bill of lading is in the usual form; and as a loss by the perils of the sea is an exception to the undertaking of the carriers to deliver the cargo safely at the port of delivery, it is undoubtedly incumbent upon the respondents to show, that the loss in question was occasioned by such peril, otherwise, they are liable for the whole damage sustained by the libellants. The libellants insist that there is no sufficient proof of any storm or peril of the sea, that could have produced this disaster; and it has been argued, that it must have arisen, either from carrying too much sail, and thereby straining the ship, the first day out, when she appears, by the log-book, to have been pressed so rapidly through the water, or from some defect in the construction of the bin, or in the arrangement of the pumps.
It is true, that the storm was not violent enough to dismast her or to carry away her sails; but the evidence shows that it blew heavily, that the sea was rough, and that the vessel was rolling and pitching in it, before any inconvenience was experienced from the wheat in the pumps.
There is not the slightest evidence that the [479]*479ship was strained by carrying too much sail in heavy weather; and the proof is positive and uncontradicted, that the bin was constructed by one of the most experienced ship-joiners in Baltimore, and was examined by him ,and the master of the vessel, before the wheat was put in, and found to be without fault; and their judgment is confirmed upon the survey made at St. Thomas after the wheat was unladen, and the construction of the bin examined by the surveyors; and the proof is equally positive and uncontra-dieted, in relation to the sufficiency, and indeed, the excellency of her pumps.
Now, trying this case upon the testimony before the court, the conclusion is inevitable, that the loss was occasioned by the perils of the sea; for the ship is proved to have been among the strongest ever built in Baltimore; and if the bin was properly constructed, the pumps properly arranged, the vessel seaworthy, and there was no negligence or misconduct of the master in navigating her, there is nothing but the perils of the sea to which the disaster can be imputed. The master and the surveyors at St. Thomas attribute the damage sustained by the cargo to this cause; and this conclusion is further strengthened by the fact, that this ship, strong as she was, had been so strained by the rough weather to which she was exposed,, that she leaked considerably more than at the beginning of the voyage, and required a good deal of caulking in her upper works, to enable her to proceed from St. Thomas to Liverpool.
No doubt a vessel laden with wheat in bulk is more liable to sea-damage than with some other cargo; and she may be disabled from proceeding on her voyage by encountering winds and waves, through which a different cargo might pass without injury to the vessel or cargo. But it is not suggested that vessels of a different description from this, or differently fitted out, or differently laden, are required to transport wheat in built. And if there was no fault in the ship, or in her equipments, or in the stowing of the cargo, or in the manner in which she was navigated; and if every precaution wras taken which is usual and customary in transporting such a cargo, I see no ground upon which the ship-owners can be charged with the loss. [Clark v. Barnwell] 12 How. [53 U. S.] 282, 283.
It is true, that in the written application of the crew to the master, to put into the nearest port, which was presented on the night of the third day out, they stated that they had, for two or three days before, observed wheat brought up by the pumps; and this statement would seem to imply that wheat had been leaking from the bin before the vessel was exposed to the rough weather spoken of in the testimony. If this was the ■case, it must undoubtedly have arisen from the imperfect construction of the bin. and the respondents would be answerable for all the damage sustained by the cargo. But these loose expressions in a paper of this kind, cannot outweigh the positive testimony of the witnesses examined in the case, and who testify to the sufficiency of the bin, and to the occurrence of strong gales and heavy seas, before any inconvenience wras experienced from the wheat.
Nor do I see anything in the conduct of the master at St. Thomas, of which the libel-lants have cause to complain. It was obviously necessary to unlade the ship; and every precaution appears to have been taken to preserve the wheat from further damage. It could not be reshipped in the bin, as the whole cargo would inevitably have been lost, if the damp and damaged portion of the wheat had been mixed in bulk with the good. It was, therefore, absolutely necessary that it should be shipped m bags; and it is by no means clear, that the bags left behind could have’ gone in safety to Liverpool, if shipped with the rest of the cargo; for it appears that the wheat in some of them (how many is not stated) was still swelled .and sticking together in cakes, when it arrived at New York. The surveyors, indeed, thought that.it could all go safely to Liverpool; but the master thought otherwise; and I am 'inclined to think he was right.
However this may be, they were unavoidably left out, for the ship would not hold them; in the language of one of the witnesses, she was full, chock and block, without them; and, as they could not be transported in- the Cheeseborough, it was evidently the interest of the owners to sell these bags of wheat at St. Thomas. There is no trade between Liverpool and St. Thomas, and there was, therefore, no prospect of shipping them from that port, unless a vessel was chartered for the special purpose; and the proof is, from those whose business required them to charter vessels, that they would not have engaged to charter one to take on board this wheat, in sixty days, at the rate of one dollar and fifty cents per bag, each bag containing only about two bushels. If they bad been carried to Liverpool at such a freight as this, and the wheat, when it reached the port, found to be in the damaged condition in which it reached New York, it would probably have been a losing voyage to the owners; if it had been left in store at St. Thomas until the owners could be advised of the condition in which it was, the expense of storage would have been added to that of freight. The most judicious course, therefore, and the one most for the advantage of the owners, was to sell it at St. Thomas. This was done by the master, and the money accounted for and paid over; the sale appears to have been perfectly fair and for a fair price, and the conduct of the master, from the time the disaster happened, appears to have been not only honest and upright in intention, but marked also by much prudence and caution. The damaged wheat was placed in suitable [480]*480places to dry, and when he found that all of it could not be taken to Liverpool, the best of the damaged bags were carefully selected, and stowed on shipboard in the manner best calculated to protect the wheat from future injury. I see nothing in any part of his conduct of which the libellants have a right to complain; his duty to the shippers as well as to the ship-owners, appears to have been faithfully and judiciously performed; and there is nothing in the evidence to show that either party -sustained the slightest damage from anything he did or omitted to do at the port of distress. The decree of the district court, therefore, must be reversed, and the libel dismissed with costs.