The Gentleman

10 F. Cas. 190

Opinion

BETTS, District Judge.

The libellants place their claim to damages in this action, substantially, upon two. grounds: First, the procrastination of the voyage, by which the arrival of the vessel at her port of destination was retarded to the season notoriously sickly upon the coast, and beyond the proper period for shipping hides for this market, thereby exposing the crew and cargo to perils they would not have incurred had the run out been made within a reasonable time, and also delaying the arrival of the cargo in this port until the market for its sale had gone by; and, secondly, the taking of the cargo on board at Gambia, and leaving port with the vessel not in a seaworthy condition. In my opinion the first proposition does not, in the whole or any of its parts, rest upon a legal basis. It must be merely matter of hypothesis and conjecture whether the prolongation of a voyage is owing to the want of seamanship, diligence or judicious conduct in the officers or crew. So many natural causes control the event of voyages, that no law giving them proper directions can be deduced from experience, analogy or the intrinsic character of the employment. To render shipmasters or owners responsible for a matter in its nature so fortuitous, there must be connected with it some culpable act of omission or commission on their part There has been no evidence produced in this case showing negligence or misconduct in the fitment or management of the vessel on her outward voyage, and it must, therefore, be regarded matter of chance whether the run was made in forty, or occupied seventy days, and was terminated at a healthy period best adapted to the business of the vessel, or extended to the known sickly season of the coast, and one most unfavorable to the objects of the voyage. The same observations apply to the passage of sixty days from Buena Vista to the port of discharge, with the consideration in favor of the last, that two men were lost at sea after leaving St. Jago. It is a common incident of navigation that vessels commencing voyages under circumstances equally favorable, in equipment and capacities of crew and vessels, at the same time vary in their despatch in proportion as large as the difference between forty days and the period of the outward or homeward run on this voyage; and in respect to the outward voyage in this case, there is.no evidence of unusual delay with the vessel after reaching the Cape de Verd Islands, as she was then occupied in selling the cargo there and along the coast.

It appears to me that the libellants have established the responsibility of the ship for damages upon the other 'ground of complaint, both for the want of seaworthiness in the vessel, and culpable negligence of the master in keeping the cargo of hides confined below deck, whilst the vessel was lying at Buena Vista, from the 13th of October to the 18th of November, without ventilating or beating them, or using any precautions for preserving them from the perils of the climate. and those to which they were specially liable in their then condition. The owner was bound to keep his vessel seaworthy during the voyage, and it is a cardinal requisite to the fulfilment of the obligation, that she shall be furnished with an adequate number of persons of competent skill and ability to navigate her. Abb. Shipp. (Ed. 1829) 222; 3 Kent, Comm. 203-203, 287; Silva v. Low, 1 Johns. Cas. 184; M’Lanahan v. Universal Ins. Co., 1 Pet. [26 U. S.] 183; Taylor v. Lowell, 3 Mass. 331; Merchants’ Ins. Co. v. Clapp, 11 Pick. 56. This responsibility does not apply to casualties occurring from sickness or accidents at sea which disable the crew; but it includes the condition of tlie ship when she leaves a foreign port, and especially her port of lading and departure with a home cargo, equally with that with which she enters upon the voyage. Putnam v. Wood, 3 Mass. 481; Kimball v. Tucker, 10 Mass. 192. The obligation is not discharged because it is found difficult or even impossible to procure a competent crew at th$ place. The ship assumes that risk abroad as well as at home. She would accordingly be chargeable to the same extent with a violation of her warranty, by sailing insufficiently manned homeward from a foreign port, as in entering upon a voyage at her home port, unseaworthy in that respect.

■ The evidence seems to me to leave no room for question that the vessel sailed from Gambia with a crew wholly inadequate to her safe navigation. The testimony of the men themselves, who manifest the most marked solicitude to prove their own good health and competency, leaves little room to doubt that they were at the time scarcely more than convalescing from the dangerous illness which they had endured, and were disqualified for undertaking the charge of the vessel at sea; and I consider it credibly proved, that the physician there gave the master to understand that' as his opinion. The opinion of other witnesses that the crew were incompetent to man and sail the ship is corroborated by the immediate result of their undertaking to do it. Some of the men were taken down again with the fever four days after leaving Gambia river, and the whole crew went into Buena Vista, after being out thirteen days, sick and enfeebled to such a degree as to be unable to continue the voyage. The run from Gambia to the Cape de Verd Islands, with a crew sufficient to man and work her, would, it appears, ordinarily be made in three days. The ship was thirteen days in performing it. and although that fact, as before suggested, is not sufficient to charge the owners with dam ages alleged to be consequential to the delay and prolongation oí the voyage, still it is a circumstance conducing to support the evidence to the incompetency of the crew to work the vessel at the time she sailed from Gambia. The ship having come into the Gape de Verd Islands from necessity, because of her unseaworthiness, the burden of proof is cast upon the owner to show that deficiency was removed when she departed, in continuation of her home voyage. In my opinion that fact is not satisfactorily established. It is quite evident, upon the proofs, that the whole thirty-three or thirty-four days detention at Buena Yista was required to restore the crew to a state fitting them to enter upon the voyage again, and that then they were inadequate to navigate the vessel alone. She stopped the next day at St. Jago to procure more hands, and the evidence no way clearly shows that the three consul's men. as they are called, obtained there, supplied the ship a competent crew for the voyage. Two months were consumed in getting her into this port, and six weeks in bringing her to the mouth of the harbor. But this additional retardation of the voyage is of less force as evidence of the insufficiency of the crew, because, in the course of it, two men were accidentally lost at sea; and the owner is not responsible for consequential damages arising from that event. In view of all the facts in evidence, however, I am of opinion that they establish a breach of the obligation of the owner to keep the ship seaworthy on her voyage. . But I am not prepared to say he is, for that cause alone, chargeable -with all the injuries sustained by the cargo. But I think the testimony fixes culpable negligence on the master in not taking proper measures at Buena Vista in ventilating the cargo at least, if not also having the hides beaten, to prevent the injurious action of the worms upon them. He was bound by law to take all possible care of the cargo during the course of the voyage (3 Kent, Comm. 213; Curt. Merck. Seam. 210; Abb. Shipp., Ed. 1820. 90, 132); and knowing his cargo was of a perishable nature, and had begun to deteriorate, it was incumbent on him to take proper precautions for its preservation, during the delay of the vessel at that port, especially as her detention was owing to his fault in failing to furnish her an adequate crew. It was suggested, on the argument, that the libel claimed no special damages because of a breach of the duty of the master in this respect. I do not remember that any exception was taken to the admission of evidence on that subject, and if it was, I. am inclined to think the allegations of the libel are broad enough to comprehend all acts of non-feasance or misfeasance on the part of the master or owner in conducting the voyage, which tended directly to produce the injuries complained of. A portion of the hides received were damaged. That damage is at the risk of the shippers or underwriters, and is not to be regarded in this action. There is a difficulty in discriminating that damage clearly from the injuries caused by worms. But, in my judgment, the fair effect of the proofs is. that at least 25 per cent, of the loss is aseribable to the latter cause. I shall, accordingly, fix that as the rate of allowance to the libellants, and order a reference to ascertain the value upon which it is to be computed, disconnecting this injury from that by sea-damage.

The claim for compensation, because of the depressed state of the market when the hides were delivered, compared with its condition when it is supposed they ought to have arrived, rests upon inquiries and dates too speculative and vague to be made safely a ground for adjudging damages. No time was stipulated between the parties for the delivery of the cargo; and the period at which the market price is to be determined must, therefore, be fixed upon mere hypothesis and conjecture. A variation of a week or even a day as to the period to be the criterion of market value, might make most essential difference in the result That demand is accordingly rejected. The libellants also claim a repayment of freight money alleged to have been overpaid to the vessel. This demand is not made a point of contestation in the pleadings, and it is at least doubtful whether, if clearly proved, such payment could be a lien upon the vessel, or that any remedy could be afforded the libellants in this action. I shall, therefore, reject that claim.

A decree will be entered for the libellants, and a reference be made to the clerk to compute the amount, upon the principles of this decision.

[Subsequently, on appeal to the circuit court, this decree was reversed. Case No. 5,323.]