The opinion of the court was delivered by: KALODNER
This libel arises out of the discharge in a damaged condition of part of a shipment of tartaric acid powder transported aboard the steamship 'Norte' from Barcelona, Spain, to Philadelphia, the port of discharge. The responsibility for the alleged damage is the ultimate issue, and attending it is the question common to cargo damage actions, the propriety of the handling, stowing, carrying, keeping and caring for the cargo, but here, the claimant-respondent also raises a question relating to the existence of damage for which recovery may be had.
The cause having been heard by the Court without a jury, on the basis of the pleadings and the evidence, I make the following
1. At all material times, Emerson Drug Company, the libellant herein, was a Maryland corporation, and was the owner of the tartaric acid powder involved in this action.
2. At all material times, the steamship 'Norte' was a general ship engaged in the common carriage of merchandise upon the high seas for hire between ports in Spain and the port of Philadelphia.
3. At all material times, claimant-respondent Domingo Mumbru was and is a citizen and resident of Spain and owned, operated, managed and controlled the steamship 'Norte.'
4. The 'Norte' is a vessel of Spanish registry, 321'1' in length, 39'4' in beam and 25 feet 7 inches in depth. It was build in 1893. In 1943-44 a tweendeck was constructed in the No. 1 hold. Steel tanks constituted the floor of the No. 1 hold.
5. On November 16, 1944, at Barcelona Spain, La Productora de Borax y Articulos Quimicos S.A. delivered to the steamship 'Norte' and claimant-respondent 250 casks of tartaric acid powder to be transported to Philadelphia.
6. The tartaric acid powder was packed in wooden barrels or casks about 3 feet high and 1 1/2 to 2 feet in circumference at the widest point. Each cask had a double paper lining. Each cask contained 224 pounds of tartaric acid powder.
7. The casks of tartaric acid powder were in apparent good order and condition when received aboard the 'Norte'. No notations or exceptions were made on the bill of lading.
8. The casks of tartaric acid powder were stowed at the extreme forward end in lower No. 1 hold, athwartships, in two rows, two tiers high. The casks in the bottom tier were upright, some resting on dunnage over the floor, or tank top, of the hold; those in the second tier were laid on their sides over dunnage. Tartaric acid powder is dry cargo.
9. Above the casks of tartaric acid powder were cases of cigarette paper, bags of briar wood and bags of almonds, in that order upwards.
11. Between the casks of tartaric acid powder and the barrels of olives there was a wall of baled cork, about 30 inches in thickness, running athwartship.
12. After loading the tartaric acid powder at Barcelona, the 'Norte' proceeded to Tarragona, Alicante, Malaga, Centa, Cadiz, Seville and then to Cadiz again. The 'Norte' departed Cadiz for Philadelphia on December 22, 1944; she arrived at Overfalls Light on January 14, 1945, took on a pilot and moved to Richmond on the Delaware River, where she was anchored until January 29, 1945, when she was berthed at Philadelphia.
13. On December 31, 1944, the sea reached force 8 on the Beaufort scale; on January 1, 1945, the wind force was 8 and 9, and the sea 7 and 8. On the latter day the steering gear broke down necessitating use of the hand steering gear for about five hours. On January 2, 1945, the wind and sea force was 6; on January 6, 1945, wind force 6 and 7, sea force 5 and 6; on January 9, 1945, wind force was 8 and sea force 7, both decreasing to 3. On January 11, 1945, the steering chain broke again and was out of operation for two and one-half hours; wind and sea force was 5. The weather and the breaking of the steering chain caused the ship to roll and pitch heavily.
14. The 'Norte' had two ventilators with 10 inch shafts at the forward port and starboard corners of hold No. 1, and one ventilator aft which did not service the lower hold and was kept closed because of the deck cargo. During the voyage from Cadiz to Philadelphia, only one of the forward ventilators was fitted with a cowl which was kept trimmed into the wind; the other forward ventilator, being a stump, was intended to act as an air exhaust for the hold. The ventilators were closed during bad weather. The prevailing winds were westerly and southwesterly, blowing from bow to stern.
15. The forward draft of the 'Norte' was 19.6 feet; aft, it was 21 feet. The bilge tanks in No. 1 hold, located along the sides and covered with new limber boards permitting water to run into the bilges from the hold, were connected with the bilge tanks in the No. 2 hold. Water in the bilges was measured twice daily; in No. 1 hold it reached 4 inches and in No. 2 hold, 12 inches during bad weather. Excess water was pumped off.
16. On discharge at Philadelphia, 124 casks of the tartaric acid powder, all from the bottom tier, were found to have been stained. The stains, grey and light green in color, appeared on the ends of the casks, rising up the sides for 2 to 6 inches. The paper lining was stiff and stained and the acid caked in the areas of the stains. The metal hoops at the lower ends of the casks showed rust. ...