Kanter v. The Italia

59 F. 617, 1893 U.S. Dist. LEXIS 182

• Court: District Court, S.D. New York
• Decided: December 28, 1893
• Status: Published

Opinion

BROWN, District Judge.

The libel was filed to recover for water damage to a cargo of cement brought to this port by the steamship Italia, on her voyage from Stettin in June, 1893. The damage was caused by fresh water, which, in the refilling of the fresh-water tank during the voyage, had escaped through a hole gnawed, doubtless, in the fresh-water pipe by rats. The pipe led from the top of the water tank in the hold upwards through the deck above. The pipe was encased in a box of wooden plank, to protect the pipe from the cargo which was stowed around it. To supply the passengers with an abundance of water during the warm weather of the passage, the fresh-water tank was refilled during the latter part of the voyage, on the night of 17th to 18th June. When the pumps were sounded at 6 A. M. of the following morning, four feet of freshwater were' found in the hold of that compartment. On examination after arrival in port, a hole about three inches long was found gnawed in the lead pipe, just above the fresh-water tank, and a dead rat lying by it. There is no doubt that the water in the hold escaped through this hole while the tank was filling during the night of the 16th. The ship during the voyage was infested with a very unusual number of rats. Twice before, as the evidence shows, lead pipe encased in a similar way, had been eaten by rats, on the same ship.

The claimants’ evidence is to the effect that the usual precautions were taken to free the ship from rats before she sailed from Stettin, by washing, and by fumigating the ship with sulphur. This was not considered, however, as wholly effective, as appears from the testimony of the chief officer:

“Q. Did you believe she was pretty free from rats in Stettin after you finished fumigating her? A. No, I don’t think so.

“Q. Isn’t it possible to get all rats Out? A. No, that is impossible. The rats travel along on ropes on the stages, get aboard all the time. There is no shin in the harbor without rats. This is not the only pipe they have eaten through.”

The bill of lading contains the usual exceptions, including perils of the seas, vermin, and negligence of the master or other servants of the shipowner; but it does not except rats by name.

Whet her the teVm "vermin” in a bill of lading should be held to include rats, it is not necessary here to decide; because none of the exceptions in the bill of lading absolve the vessel or her owners from the lack of reasonable diligence in the equipment of the ship before the commencement of the voyage, or in due precaution to prevent, injury to the cargo. Steel v. Steamship Co., 3 App. Cas. 72; Tattersall v. Steamship Co., 12 Q. B. Div. 297; Stevens v. Navigazione, etc., 39 Fed. 562; The Caledonia, 43 Fed. 681; The Rover, 33 Fed. 515, affirmed 41 Fed. 58. Considering the well-known liability of lead pipe to he gnawed hv rats, when present, of which previous examples are not wanting in the reported cases, (The Euripides, 52 Fed. 161; Hamilton v. Pandorf, 12 App. Cas. 518,) and that on this vessel twice before the lead pipe had been eaten by rats, (hough encased in similar planking, I think that when it was found that the rats could not he subdued in this ship, reasonable prudence required the owner, before entering upon this voyage, to protect the lead pipe that ran amidst cargo liable to suffer water damage, where; the pipe was not easily accessible, nor open 1o inspection during the voyage, by a hard metal covering either to the pipe or to the box; or else to substitute an iron pipe in place of a lead one. A liability to water damage from such a cause, known to the shipowner, and easily avoidable by him, but neither known to the shipper, nor under his control, ought not to he at the risk of the latter.

The carpenter, whose duty it; ivas to attend to the extermination of the rats, was not produced as a witness, on account, it is said, of his absence. The most satisfactory evidence, therefore, as to the carefulness of the endeavors to exterminate the rats, is wanting. Considering the damage previously done to the lead pipe by rats on this ship, certainly special efforts ought to have been made to exterminate them; and if such efforts were not made., the ship would he undoubtedly liable. The Isabella, 8 Ben. 139; Stevens v. Navigazione, etc., 39 Fed. 562; The Timor, 46 Fed. 859, If, on the other hand, the rats are so abundant at Stettin, or at other ports where the vessel was in the habit, of touching, that notwithstanding such previous efforts rats would still infest the ship to such an extent as the testimony shows on this voyage, it seems to me that; it was the duty of the owners in the equipment of the ship, and in the preparations for the voyage, to protect the water pipes effectively against rats, wherever they were a manifest source of danger to the cargo. Either of several preventives could have been easily adopted at comparatively small expense, which would have afforded adequate protection.

Decree for libelant, with costs.