The opinion of the court was delivered by: KALODNER
This is an action in admiralty brought by the consignee to recover for cargo damage allegedly sustained during the transatlantic voyage of the steamship Vizcaya. The issues involved are: (1) Whether the cargo was received by the Vizcaya in good order and condition, (2) if so, whether the damage was attributable to perils of the sea or to the unseaworthiness of the vessel, and (3) if the latter, whether due diligence was exercised to make the Vizcaya seaworthy.
The cargo in controversy consists of bags of shelled almonds and filberts marked 'B. Co.' and 'B.C.L.' which were shipped under six through bills of lading from the ports of Alicante and Tarragona, Spain, on the vessels Darro and Ebro to Cadiz, Spain, where they were transshipped onto the Vizcaya for carriage to Philadelphia.
The through bills of lading were 'clean' bills containing the usual notation of receipt for shipment in good order and condition. Also, they limited the responsibility of each carrier to its own line,and subjected the through bills to the conditions contained in the bills of lading issued by the on-carrier, the claimant-respondent here.
The Vizcaya issued six bills of lading, printed in Spanish, covering the shipment from Cadiz to Philadelphia. They did not recite that the goods were received in apparent good order and condition, but contained the printed statement, signed by the Captain, that he did not know the weight, contents, quality and condition of the cargo. On two of these bills, however, were longhand notations in Spanish, which, translated, mean '5 slack bags short contents' (bill No. 11), and '5 bags slack and resewed' (bill No. 46).
The testimony, both in court and by deposition, and the exhibits, disclose the following facts:
The Vizcaya left Cadiz on January 30, 1944, and stopped at Huelva, Spain, for bunkers. According to the testimony of the first engineer, the coal was half large pieces and half small; he tested it in the kitchen stove and discovered that the large pieces burned all right, but not the small pieces, whereupon he complained to the supplier who was new to the ship. The result of this inferior coal was to diminish the pressure so that, after leaving Huelva, the ship lost sixty to seventy knots a day in normal weather. The first engineer also stated that at Huelva he inspected the Vizcaya's machinery and found it in good order.
At about midnight on February 21st (the twenty-fourth hour), the Vizcaya's engines were stopped because the bottom of the centrifugal pump became loose and fell. Repairs were completed at about 6 P.M. on February 24th, and during this time the Vizcaya was adrift.
On February 25th, the range of the wind was force 5 increasing to force 7, and the same for the sea. On February 26th, the wind and sea varied between force 5 and force 6, but at about 8 P.M. the engines were stopped because of damage in the transmission of the steering gear, which was not repaired until 6 A.M. on February 27th. For these ten hours the Vizcaya was adrift a second time. The inability to steer the ship resulted, according to the engineer, in exposing the stern of the ship causing the propeller to race, which in turn caused 'too much' vibration of the ship. Although the hand steering gear was available, the attempt to use it was not successful because of the weather.
Following the repair of the steering gear, the Captain considered the weather good, the highest wind and sea force being force 7, until March 2nd, when the wind reached force 8 for several hours. The weather for the remainder of the trip was good. However, the Captain found it necessary to make an unscheduled stop at Bermuda for coal. There he filed a protest with the Spanish Consulate on account of the bad weather. A similar protest was filed in Philadelphia.
This protest discloses that on February 22nd, the engines were stopped for three hours to clean the pipes in the boilers; that at about 12:30 A.M., February 23rd, the engines were stopped because of the break in the centrifugal pump and were not started until 4:24 P.M. February 25th, when the cement on the centrifugal pump became sufficiently hard; that on February 24th, at about 6 . M. the ship's rail, center, port, was carried away; that on February 26th, at about 8 P.M. the steering gear broke and was not repaired until 6 A.M. on February 27th; on February 29th, the ship could not be kept on her course because of lack of pressure because of inferior coal and this continued on the 29th, the ship pitching and rolling heavily; control was not regained until about noon that day when the weather improved. On March 3rd at about 5 A.M. control was being lost because of lack of pressure, the engine was stopped and the ship remained adrift; at 6 A.M. springs in the "guarne' were broken. The day's run of March 4th was begun with stopped engines, but the translation does not disclose when they were started up.
There is no question that the cargo of almonds and filberts were discharged in a damaged condition. The surveyors for the libellants and claimant-respondent agreed that two kinds of damage were apparent, and separated the sacks of nuts accordingly. In one group were placed torn sacks marked with paint and rust; this damage was attributed to chafing of the sacks against the skin and frames of the ship. In the other group were placed sacks characterized by a lengthwise cut on the flat side of the sack; the surveyors could not determine the cause of this damage, but compared the cut to one made by a sharp instrument.
At Cadiz, the sacks of nuts which are involved here were stowed, with other sacks of nuts, in the Vizcaya's holds No. 3 and No. 4. In the hold No. 3 they were laid on a platform of dunnage over cases of wine, and in the No. 4 hold, on dunnage over butts of wine. The sacks were laid one layer fore-and-aft and one layer crosswise in alternate tiers from one wing of the hold to the other. In each hold there was approximately one foot of space between the sacks and the skin of the ship, and about six inches between the sacks and the ship's frames. The sacks were three tiers high in hold No. 3 and five tiers high in hold No. 4. There was no dunnage or any other kind of protection between the sacks and the skin and frames of the ship, although there was dunnage between the butts and the hull. In hold No. 3, there was about nine feet of clearance between the top of the stow of nuts and the deck, but in No. 4 hold, there clearance was about three feet in the forward part of the hold sloping to about 10 feet of clearance at the center of the stow, so that the forward part was about seven feet higher than the after part.
At the time the sacks of nuts were being transhipped at Cadiz, the testimony is that the stevedores engaged in unloading the Darro and the Ebro were using hooks; these men were not connected with the Vizcaya or its agents. The testimony also was that of the cargo of nuts, made up of a number of marks, including those involved here, some bags were torn, leaking, or short and sewing was going on at the pier; bags taken on the Vizcaya which were torn, were also being resewed. According to the first officer, who was in charge of the loading of the Vizcaya, he counted the torn and leaking bags; his notes and the cargo receipts show that of 3520 sacks, a total of 62 sacks were leaking and resewed. The first officer further stated that in counting he did not distinguish the marks on the bags, and therefore could not say whether the cargo noted as damaged applies to the cargo for which this libel is filed. However, as pointed out previously, two of the Vizcaya's six bills of lading were marked to show a total of ten damaged bags.
Although the first officer considered that the stow was proper, he said that if more dunnage were available he would have used it to protect the bags from the skin of the ship. In any event, certification of the stowage was made by the agents of Lloyds.
Finally, the evidence disclosed that in the interior of the holds that were braces extending from the sides of the ship diagonally to the deck, the brace being about five feet long, with an open space in the angle. There was testimony that, when the Vizcaya's holds were opened, some sacks were hanging in those openings. Furthermore, it appears that as the sacks were being discharged at Philadelphia large quantities of the contents were being lost through the torn and leaking sacks. The evidence is not in agreement as to when the ship's coopers began to resew bags at Philadelphia, but it is clear that loose nuts were lying in the holds and on the pier.
Coming to the contentions of the parties it is of primary importance in the consideration of the merits of this libel to note that the bills of lading here involved are subject to the United States Carriage of Goods by Sea Act, 49 Stat. 1207 (1936), 46 U.S.C.A. § 1300 et seq.; this is so regardless of the fact that they were issued in Spain. 46 U.S.C.A. §§ 1300, 1312.
First, the respondent takes the position that recovery for damages may not be had since the libellants have failed to show receipt of the merchandise by the Vizcaya in good order and condition. It is claimed that the absence in the Vizcaya's bills of lading of the usual acknowledgement of receipt in apparent good order and condition places upon the libellants the onus of affirmatively proving the good condition of the merchandise upon delivery to the Vizcaya. The Isla de Panay, 1925, 267 U.S. 260, 45 S. Ct. 269, 69 L. Ed. 603. However, in this connection I think it necessary to consider that the damage was of two types, and the sacks were divided accordingly. As to one group of sacks, the cause of the damage was not determined; as to the other, the evidence was clear and concise that the bags were marked with paint and rust stains from contact with the ship's skin and frames. The surveyors of both parties were in agreement as to the cause of the damage to this group of bags, and no conclusion is available except that the damage occurred on board the Vizcaya. In the light of this conclusion therefore, the question of condition at the time of receipt by the Vizcaya is not material; this is particularly so in view of the evidence that the bags were otherwise suited for the purpose for which they were used.
The group of sacks damaged by an undetermined cause presents a more difficult situation. The question of burden of proof has been strongly argued. The situation is one of first impression with reference to Section 3(3)(c) of the Carriage of Goods by Sea Act of 1936, 46 U.S.C.A. § 1303(3)(c). Moreover, the construction of that Act is complicated by the decision in The Isla de Panay, supra, insofar as that case is based on a comparable provision in the Harter Act, 27 Stat. 445 (1893), 46 U.S.C.A. § 193. Although that case, and cases like New England Newspaper Pub. Co. v. United States (The West Campgaw and The West Harcuvar), D.C.D. Mass., 18 F.Supp. 674, 1937 A.M.C. 427, and The Boveric, D.C.S.D.N.Y., 1924 A.M.C. 1045, are readily distinguishable on their facts, the broad language expressed therein seems to preclude the libellants here from taking advantage of the recitation of good order and condition contained in the through bills of lading as against the Vizcaya. However, the libellants claim the benefit of an inference, from the notations of bad order on some of the Vizcaya's bills of lading, that the remainder of the shipment was in good order.
While a nice question of law is thus presented, it seems to me that, in view of the evidence, consideration of the controversial issues raised is not necessary here. The respondent, although steadfastly maintaining that the libellants have the burden of establishing good order and condition at the time of receipt by the Vizcaya, has nevertheless gone forward to show bad order and condition. The testimony is clear and uncontradicted that the stevedores engaged in unloading the Darro and the Ebro used sharp-pointed metal hooks and that many sacks of nuts were torn thereby. The testimony of the surveyors of both parties is in agreement that the tears in the sacks of this group were made by a sharp-pointed instrument. The inference, I think, is patent and logical; no other explanation for the peculiar damage was offered by the libellants, and no other is suggested by the evidence.
In my opinion, therefore, the Vizcaya has shown at least a prima facie case of damage due to no fault of its own with respect to this particular group of sacks. In the absence of an assertion of, or factors which would make applicable, the theory of estoppel, it appears that the Vizcaya has done as much as would be required of it if the libellants were given the benefit of the rule that acknowledgment in a bill of lading of receipt in good order and condition is prima facie evidence of that condition, for the rule is well-settled and even where the bill of lading contains such a recitation, the vessel may introduce evidence rebutting the presumption. See Thomas Roberts & Co. v. Calmar Steamship Corp., D.C.E.D. Pa., 59 F.Supp. 203, 1945 ...