for interpretation; hence, also for reasonable disagreement in borderline instances. Thus, claimant-respondent's analyst conceded the presence of sulphates and chlorides, but in such minor quantities that the U.S.P. standard was nevertheless fulfilled. The libellant's analyst reached the opposite conclusion
There are available, however, the results obtained by two independent, disinterested analysts, Wiley and Company and Lauro. But these, too, are contradictory. Nevertheless, the evidence warrants the full recognition and credit by the Court of the Wiley and Company reports. Wiley and Company tested twelve samples. Those samples were carefully selected under the supervision of the surveyors for both parties while the powder was in its original containers. They were a fair representation of the caked material. On the other hand, there is no such evidence as to the fairness of the representation of the sample tested by Lauro. Indeed, it was not clearly established that the sample was taken from the caked powder, for Wagner stated that the sample was sent to him, while Gunn stated that it was taken by Wagner 'or his principals'. Moreover, that sample was taken after the separation process, and is open to the criticism, in absence of contrary evidence, that it may have included uncaked powder as well in such quantities as to affect the outcome of the analysis.
Accordingly, the Court concludes that the caked powder contained sulphates and chlorides, and accepting Millard's testimony, that they were present in sufficient degree to constitute a variation from the U.S.P. standards. The libellant was therefore justified in rejecting the caked material.
The issue next to be determined is the responsibility of the claimant-respondent for the damage. The evidence, it is conceded, establishes the receipt of the casks of powder on board the 'Norte' in apparent good order and condition, and the discharge of 124 of them in a damaged state. The damage was caused by contact with the salt water or brine which came from the barrels of olives. The brine was the principal contaminating factor insofar as the contents of the casks are concerned.
On the evidence, claimant-respondent's liability is admittedly governed by Section 4(2)(q) of the Carriage of Goods by Sea Act, 49 Stat. 1210, April 16, 1936, 46 U.S.C.A. § 1304(2)(q).
The burden of exoneration according to the terms of the statute rests upon the claimant-respondent. Navarro v. The Ciano, D.C.E.D. Pa., 1946 69 F.Supp. 35. Whether the damage was caused or contributed to by the fault or neglect of the carrier, its agents or servants, is the subject of the present inquiry
Claimant-respondent's surveyor, Bryant, testified that the barrels of olives were stowed properly in 'bilge and cantline' fashion. But the detailed description of the stowage as given by the chief mate refutes that conclusion. The 'bilge and cantline', sometimes referred to as 'bung up and bilge free', method of stowing barrels has as its basic principle that the 'bilge' of a barrel, its widest and weakest part should never bear the weight of the barrel itself or the tier above. Properly, the barrels in the first or bottom tier should rest bung up on dunnage placed at the quarters; the barrels in the second tier are laid in the 'cantlines' of the lower tier, that is, the 'dip' made by four barrels in the lower tier.
The result is that each barrel rests on its quarters, 'bilge free,' and each in the upper tiers rest on the quarters of the four barrels beneath it
In the instant case, dunnage was placed between each tier of barrels; each barrel rested on chocks under its quarters on the 'floor' thus made. It is obvious that this method effectively destroyed the advantage and overlooked the fundamental principle of 'bilge and cantline' stowage: the floor of dunnage necessarily rested on the bilges of the barrels beneath it; the barrels in the lower tiers thus supported the entire weight of the dunnage and the upper barrels on their bilges, exactly where there should have been as little pressure as possible
this was unmistakably bad stowage.
The method of stowing the olives is of particular importance in view of the weather conditions the 'Norte' encountered on its transatlantic voyage. The weather may have been severe, but it was expectable during the winter season and did not amount to a 'peril of the sea.' The Vizcaya, D.C.E.D. Pa., 1946, 63 F.Supp. 898. Proper stowage requires recognition of weather conditions which may be anticipated. Giving to claimant respondent the benefit of the assumption that a reasonable amount of leakage from the barrels of olives may be expected even under the best stowage as a result of the working of the ship during rough weather, nevertheless, the manner of stowage here employed rendered the barrels subject to inordinate pressure at their weakest point. Undoubtedly excessive leakage resulted, and this is attributable to fault. Indeed, the record discloses that water in the bilges increased markedly during storms and this was attributed to the leakage from the barrels of olives.
Moreover, no solace for the claimant-respondent derives from the twice broken steering gear. There is no evidence as to the nature of the inspection made at the commencement of the voyage. Since the weather did not amount to a 'peril of the sea' on either occasion when the breakage occurred, it can only be concluded that fault existed here also. And if, as may be reasonably assumed, the breaking of the steering gear rendered the vessel more amenable to the elements, with increased working of the cargo and concomitant enhancement of leakage, the claimant-respondent is responsible. The Vizcaya, supra.
Fault is also manifest in the stowage of the casks of powder. Again granting the assumption of reasonable leakage from the barrels of olives, particularly in view of the weather, dunnage was necessary and desirable in sufficient quantities to raise the powder from the floor of the hold to allow the water in the hold to run clear of the cargo into the bilges. Crediting the chief mate, for the benefits of the claimant-respondent, and assuming that there was some dunnage under some of the casks of powder in the bottom tier, the evidence fails as to sufficiency. Sawdust is inadequate as was testified because it absorbs and holds moisture in addition to threatening the freedom of the rose-boxes. In any event, no attempt was made, most likely because of impossibility, to separate those casks resting on dunnage from those admittedly short of that protection. The Vallescura, 1934, 293 U.S. 296, 55 S. Ct. 194, 79 L. Ed. 373. Of course, it is well-settled, that dunnaging is the responsibility of the carrier. Section 3(2), Carriage of Goods by Sea Act, 49 Stat. 1208, April 16, 1936, 46 U.S.C.A § . 1303(2).
All of the casks of powder in the bottom tier were stained, the stains varying from two to six inches up the sides of the casks. The damage was caused by the failure of sufficient dunnage under the casks of powder and by excessive leakage from the barrels of olives as a result of their faulty stowage. The evidence of fault, as so far developed, forces the Court to place responsibility upon the claimant-respondent. It is hardly necessary to rely on those cases holding that negligence as an inference of fact is established when dry cargo is damaged by liquid goods. See The Schickshinny, D.C.S.D. Ga., 45 F.Supp. 813.
In addition, it may be noted that the 'Norte' lacked proper and sufficient ventilation in the No. 1 hold. There were three 10 inch ventilators, two forward and one aft. The aft ventilator was not in use because of the deck cargo. Of the two forward ventilators, only one was fitted with a cowl, which was kept trimmed into the wind. The prevailing winds were westerly and southwesterly, blowing from bow to stern. The other ventilator was a mere stump, intended to act as an air exhaust for the hold. The evidence is that the ventilation was insufficient. Also, it was improperly managed. Generally, the lee ventilators should be trimmed into the wind and the weather ventilators against the wind, since the natural flow of warm air in an enclosed compartment is opposite to the direction of the wind. Ford, Handling and Stowage of Cargo (2nd ed. 1944) 218. Captain Perry, the libellant's surveyor, testified to phenomenal sweat in the hold as a result of this condition. Evidence of sweat was admitted by the chief mate. Naturally, the sweat contributed to the amount of water in the hold and bilges
combining with the brine from the olives.
Accordingly, in the opinion of the Court, the evidence affirmatively reveals fault on the part of the carrier, its agents or servants, which actually caused and/or contributed to the damaging of the powder. Claimant-respondent must be held liable therefor. Carriage of Goods by Sea Act, supra; The Vallescura, supra; Navarro v. The Ciano, supra. Consequently, it is not necessary to discuss the contention of the libellant relating to deviation.
Only a word need be said with respect to damages. Expenses incurred by the libellant, for its surveyors, tests, etc., amounted to $ 334.87. Expenses of separation amounted to $ 1,784.08. These are not contested. The market value of prime tartaric acid powder, admittedly, was 83 cents per pound, duty paid. 7,434 pounds, which if in prime condition would have been worth $ 6,170.22, were damaged and lost. 6,797 pounds
of damaged powder were sold at 63 cents per pound, or at a total of $ 4,282.11. The libellant is entitled to recover its loss of $ 1,888.11, in addition to the expenses above, or a total of $ 4,007.06.
In accordance herewith, I state the following
Conclusions of Law.
1. This Court has jurisdiction over the subject matter and the parties herein.
2. The claimant-respondent, its agents or servants, was guilty of fault or neglect in the handling, stowing, carrying, keeping and caring for the cargo here involved, which fault or neglect actually caused, or contributed to, the damage to that cargo.
3. The libellant is entitled to recover in this action against the claimant-respondent its loss and damage in the amount of $ 4,007.06.
An order may be entered pursuant hereto.