The opinion of the court was delivered by: KIRKPATRICK
This suit is brought for damage to and shortage in two shipments of plumbago (graphite) from Colombo, Ceylon, to Philadelphia aboard the 'Exbrook,' one of 666 bags of dust plumbago and the other of 500 bags of lump plumbago.
Upon arrival in Philadelphia, a large number of the burlap bags containing the plumbago burst open in the process of unloading and were found to be rotted, particularly about the seams, from fresh water contact. After such bags as remained intact were landed (being about a third the whole number), the balance of the cargo was discharged in bulk and piled upon the pier. The bulk plumbago was rebagged sometime later and the entire lot weighed by United States Customs, with the result that a shortage in weight was reported.
The claim is (1) for the cost of rebagging and for other expenses incurred as a result of the breaking of the bags and (2) for the alleged short delivery. The loss occasioned by the breaking of the bags will be first considered.
The measure of a carrier's liability, as well as the burden of proof where the carrier's negligence is an issue, is fixed by the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304. No provision in a bill of lading can reduce the liability fixed by the Act or shift the burden of proof. Paragraph 17 of the bills of lading in this case, which states that 'The carriers are not liable for * * * damage by * * * decay * * * ' can not broaden the scope of the exception of Sec. 4, subsection (2)(m) of the Act, which is 'Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality, or vice of the goods.' The loss in this case does not come within this exception because the decay of the bags has not been shown to have been caused by any inherent defect or vice either of the plumbago or the burlap itself.
Section 4 of the Carriage of Goods by Sea Act establishes sixteen exceptions from liability. If the loss is caused by one of the enumerated exceptions, the carrier will not be held liable unless it appears that its negligence contributed to the damage, and the burden of proof upon that issue is upon the libellant. Subsection (2) (q) provides, in effect, that, as to loss due to causes other than the enumerated exceptions, the carrier can avoid liability only by showing that no fault or neglect on its part contributed to it. Here the burden is on the carrier. With these rules in mind the facts of the present case will be considered and, under them, the issue of the carrier's liability must be determined.
In the first place, it is undisputed that it was fresh, not salt, water which rotted the burlap bags. This eliminates all question of entry of sea water into the hold during the voyage.
Fresh water may get into the hold of a ship in a number of ways, chief among which are: rain through open hatches or uncovered ventilators, moisture present in the damaged shipment when loaded, moisture in other cargo stowed nearby, or sweat. As to all these possibilities, except sweat, the burden is upon the respondent to show freedom from negligence in any and all respects which might have caused or contributed to them. Sweat is a somewhat different matter and will be considered separately.
The master of the ship and the first officer testified at length by deposition and I find nothing in their testimony to indicate lack of frankness or to furnish any reason why I should not accept it as true. So accepting it, it appears that no appreciable amount of rain water entered No. 2 hold, in which the plumbago was stowed, either through open hatches or through uncovered ventilators and that in these respects all due diligence was exercised. The measures taken for covering and protecting the hatches against the weather were fully described and were adequate.
The plumbago was stowed above a shipment of manganese ore and separated from it by two layers of dunnage and a heavy burlap cloth, over which were placed two more layers of dunnage. It was similarly separated from a shipment of jute fibre and tea above it except that tarpaulins were used in place of burlap. No wet cargo was stowed in No. 2 hold, which was separated from the adjoining holds by water-tight, steel bulkheads.
The libellant, in its brief, argues that the stowage was improper, citing an excerpt from a treatise on 'Modern Ship Stowage' in which it is stated that 'Usually jute contains a considerable amount of moisture * * * ' and that ' * * * Jute should not be stowed in the same compartment with goods that are * * * liable to be damaged by moisture.' Without any testimony, expert or otherwise, in support of this opinion, it remains mere argument. With no opportunity for the respondent to controvert it or develop by cross-examination its source, applicability and limitations, it has no more weight than has the assertion in the respondent's brief that the stowage was proper. I must determine whether the carrier has met its burden from the facts as presented by the evidence. The only reference in the testimony to the qualities of jute is found in the deposition of the first officer which is in substance that jute is particularly susceptible to become moist, but less susceptible than burlap. However, as to the actual condition of the jute stowed in No. 2 hold, the same witness testified that, as a matter of fact, there was no noticeable moisture in it when it was loaded and that when it was unloaded there was no apparent moisture in it- a fact which he ascertained by feeling it with his hand. The jute, it is to be remembered, was separated from the plumbago by double dunnage and tarpaulins. I find as a fact that there was no negligence in the method of stowing the plumbago or in its location with respect to other cargo in the No. 2 hold.
Coming now to the question of sweat, its presence in the hold of a ship has been held to be a peril of the sea and consequently within the exception of Sec. 4, subsection (2) (c), of the Carriage of Goods by Sea Act. Even so, 'the carrier remains liable if it fails to provide, without excuse, sufficient ventilation, or if its improper stowage contributed to the sweat, or if it is otherwise negligent in handling the cargo. Sweat, then, can be regarded as a peril of the sea only when all available and reasonable precautions are taken to avoid it.' Wessels v. The Asturias, 2 Cir., 126 F.2d 999, 1000.
The ship's officers testified fully as to what was done on the voyage to avoid excessive sweat. Both were thoroughly experienced in carrying cargoes of plumbago, having made the run from Ceylon to this country with such cargo on many prior occasions.