to be sound is that conformity to custom is not of itself the exercise of due care. 38 Am.Jur.Sec. 34. The question that still remains is whether or not reasonable prudence under the circumstances has been exercised. That question has been answered in the negative.
It was also argued that the carrier complied with an Act of Congress, and regulations issued by the Department of Commerce pursuant thereto, by stowing the cargo on deck and, further, that it would amount to a penalty for adherence to the law if the Court were to construe compliance with said Act and regulations as constituting negligence. The answer to this argument is that the placing of cargo on deck was not the negligent act, but the failure to provide proper and adequate dunnage for the stowing of cargo was. We are satisfied that the respondent is not attempting to urge upon us that the compliance with the regulations by stowing the cargo on deck and the duty to exercise due care in furnishing adequate dunnage are mutually exclusive acts, that is, that the performance of one act precludes the possibility of the other. We can perceive no difficulty or hardship in the performance by the respondent of both acts.
The testimony reveals that the S. S. California experienced a few days of bad weather only but it did not encounter any storm of such violence as to constitute a peril of the sea. Peril of the sea means something so catastrophic as to triumph over those safeguards by which skillful and vigilant seamen usually bring ship and cargo to port in safety. The Rosalia, 2 Cir., 264 F. 285. Perils of the sea refer to violent action of the elements not reasonably to be expected as distinguished from the natural influences of the sea. Morris v. Lamport & Holt, D.C., 54 F.2d 925. We conclude that peril of the sea exception was not proved.
The cases cited by libellant, Herman et al. v. Compagnie Generale Transatlantique, 2 Cir., 242 F. 859; The Folmina, 212 U.S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann.Cas. 748; The Vallescura, 293 U.S. 296, 55 S. Ct. 194, 79 L. Ed. 373; The Glenlochy, 226 F. 971, and Kaufer Co. v. Luckenback S. S. Co., Inc. D.C., 284 F. 160, which deal with 'wettings by sea' and 'cargo shipped in good order and damaged in transit,' are not necessary for the disposition of the instant case. They are concerned primarily with presumptions, burden of proof and shifting of burden of proof where the proofs of the case rise no higher than the bald fact of 'wetting by sea' or the mere fact that 'goods were delivered to the carrier in good condition and received in damaged condition.' But the proofs in the present case go further than either of these two facts because the libellant has proved negligence on the part of the respondent.
The damage and loss sustained by libellant solely by reason of the negligence of the respondent is in the amount of $ 1227.18. Judgment is hereby rendered in favor of libellant in the sum of $ 1227.18 with interest from the 16th day of January, 1941. Respondent is directed to pay the costs of this action.
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