1923 A. M. C.

The owners were released from all the consequences of the stoppage order. Now to hold that the owners may not collect hire during the period between June 5th, when the agreement was signed, and when the orders were actually received by the masters of the vessels to proceed, would seem to impose an obligation on the owners which was never contemplated by the parties on June 5th. For this reason, I dissent.

THE LAKE FONTANET.

UNITED STATES OF AMERICA, Appellant,

vs.

M. LEVY'S SONS, ET AL., Appellees.

United States Circuit Court of Appeals, Fifth Circuit, April 3, 1923. Before: WALKER, BRYAN and KING, Ct. JJ.

Opinion by WALKER, Ct. J. Cargo DAMAGE-Sweat-USUAL METHOD OF STOWING COFFEE INADEQUATE FOR VOYAGE.

1. Although damage results to cargo from an excepted cause (assumed but not found), yet if it could have been avoided by the exercise of proper skill and vigilance, the carrier is liable.

2. If, under the circumstances, the manner of stowing and dunnaging cargo is faulty and negligent, the existence of a custom so to do is not a good excuse.

3. It is negligent to stow coffee with "usual" battens and matting, for a voyage from warmer to colder climates, when sweating of the ship's holds could have been anticipated, and other and safer methods of stowage could have been used.

EDOUARD F. HENRIQUES, Special Assistant in Admiralty to U. S. Attorney, GEORGE H. TERRIBERRY, FRAZER L. RICE, W. W. YOUNG, JOSEPH M. RAULT, WALTER CARROLL, for Appellant.

PHILIP S. GIDIERE (WALKER B. SPENCER, PHILIP S. GIDIERE, ESMOND PHELPS and CHARLES E. DUNBAR, JR., on the brief), for Appellees. WALKER, Ct. J.:

This was a libel filed by the appellees against the steamship Lake Fontanet to recover for damages to coffee shipped by that vessel from the Brazilian ports of Rio Janeiro and Victoria to New Orleans. The libel charges that the coffee was damaged by sweat and water by reason of it not having been stowed with proper dunnage, and by reason of the master, his officers and crew not taking proper precautions in the custody and care of the coffee.

500.

When the vessel was loaded and sailed from the Brazilian ports in December, 1919, the weather was warm and damp. During the period between the date of the arrival of the vessel in the port of New Orleans, January 18th, and February 2nd, 1920, the date when it began to discharge cargo, the weather was cold and foggy. A result of the ship passing from the warm waters of the Gulf of Mexico into the much colder waters of the Mississippi River was that water formed inside the ship below its water line on its metal sides and beams. The entire cargo was coffee, which was in sacks. The ship's holds were arranged for loading coffee in them by bolting on to its upright steel ribs, which were 24 inches apart, wooden battens, which are planks 6 inches wide and 2 inches thick, with spaces of 9 inches between them. As the sacks of coffee were loaded into the vessel, mats made of long dried reeds were laid between the wooden battens and the sacks, the ends of such mats overlapping as one was laid next above another against the battens. The pressure of the coffee sacks against the mats caused the mats, particularly their ends, to come in contact with the steel sides of the ship, which was 8 inches from the inside surface of the battens, with the result that moisture was conveyed from the ship's steel skin or side to the coffee sacks next to the battens. Such mats were also used to cover the coffee stowed in the holds. That covering did not keep the moisture dripping from the steel beams above from reaching the top layer of coffee sacks. The coffee which was damaged was that which was in sacks next to the battens and that which was in the top layer of sacks.

The liability for the damage caused as above indicated is resisted on the grounds that under a provision of the bills of lading the carrier is not liable for loss or damage occasioned by sweat, and that the ship was battened, dunnaged and matted in the manner usual and customary in the Brazilian Coffee trade.

The following is the provision in the bills of lading which is relied on:

"It is mutually agreed, that the carrier shall not be liable for loss or damage occasioned . . . by heating, decay, putrefaction, rust, sweat, change of character, drainage, leakage, breakage, or any loss or damage arising from the nature of the goods or the insufficiency of the package; . . . nor for any loss or damage caused by the prolongation of the voyage."

1923 A. M. C.

Counsel for the appellees contend that the word "sweat" in the just quoted provision means only moisture exuding from goods shipped, and not moisture arising in the way above indicated. There is some basis for this contention, as the language chosen by the carrier is to be construed most strongly against it, and the other words in immediate connection with which the one in question was used are descriptive of loss or damage arising from the nature of the goods shipped. But, in view of the conclusion stated below, it may be assumed, without being decided, that the sweating which caused the damage to the coffee was within the meaning of the quoted provision of the bill of lading.

Though the damage resulted to the coffee from an excepted cause, yet if it would have been avoided by the exercise of proper skill and diligence the carrier was liable. Cau vs. Texas & Pacific Ry. Co. (1904), 194 U. S. 427; Clark vs. Barnwell (1851), 12 How. 272; The Glenlochy (1915), 226 Fed. 971. Evidence adduced called for the conclusion that if the stowing and dunnaging of the cargo had been done in a different and entirely practicable manner the damage complained of would have been avoided. As the cargo was loaded in a summer month in Brazil and was due to arrive at its destination in mid-winter, it was to be expected that the steel vessel would sweat excessively upon its coming from the warm waters of the Gulf of Mexico into the cold waters of the Mississippi River. What happened was the result of an ordinary contingency of such a voyage undertaken at the time the one in question was made. The vessel and its owner are liable for damages resulting from a negligent failure so to stow cargo as to protect it from injury by the ordinary contingencies of the voyage. 27 Ruling Case Law, 1303. There was testimony to the effect that the cargo was stowed and dunnaged in the manner which is customary on vessels engaged in the Brazilian coffee trade. If under the circumstances the manner of stowing and dunnaging adopted was faulty and negligent the existence of a custom so to do was not a good excuse. What ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. Texas & Pacific Ry. Co. vs. Behymer (1903), 189 U. S. 468; Charnock vs. Texas & Pacific Ry. Co. (1904), 194 U. S. 432. A ship cannot lawfully contract against liability for loss or damage arising from negligence, fault, or failure in proper loading, stow

500.

age, or care of its cargo. U. S. Comp. St. Section 8029. It was negligence to subject the coffee to damage which under the circumstances was to be anticipated and which was avoidable by the exercise of proper care. We are of opinion that the evidence adduced called for the conclusion that the coffee was damaged as a result of a negligent failure to properly stow and protect it. The Court did not err in holding the ship liable for that damage. The decree to that effect is affirmed.

THE IMPERATOR.

ANDREAS JENSEN, Appellant,

VS.

STEAMSHIP IMPERATOR, JOHANNES SVENSEN, MASTER AND CLAIMANT, Appellee.

United States Circuit Court of Appeals, Fifth Circuit, April 3, 1923. Before: WALKER, BRYAN and KING, Ct. JJ.

MARITIME LIEN-BRITISH LAW-PERSONAL INJURIES, SEAMAN

UNSEAWORTHINESS.

Under the British Law, as set out by the Supreme Court of the United States in the case of The Osceola, 189 U. S. 158, a seaman on board a vessel within the confines of a British port, injured through the unseaworthiness of his vessel, is entitled to a maritime lien.

W. J. WAGUESPACK, HERBERT W. WAGUESPACK, for Appellant.

GEORGE H. TERRIBERRY, W. W. YOUNG, FRAZER L. RICE, JOSEPH M. RAULT and WALTER CARROLL, for Appellee.

Appeal from the District Court of the United States for the Eastern District of Louisiana.

BRYAN, Ct. J.:

This is an appeal from a decree in admiralty dismissing appellant's libel upon exceptions.

The appellant was a seaman on the steamship Imperator, and alleges that while that vessel was entering the harbor of Belize, British Honduras, he was injured while engaged in the performance of his duty by the breaking of a rope in the rigging; that the rope was unsafe, and that the ship was therefore unseaworthy.

The libel, after alleging that the admiralty law of England is in force in British Honduras, pleads sections 7 and 35 of the English Admiralty Act of 1861, which provides:

1923 A. M. C.

"Sec. 7. The High Courts of Admiralty shall have jurisdiction over any claim for damages done by any ship.

"Sec. 35. The jurisdiction conferred by this Act in the high Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam."

and section 5 of the Merchant Shipping Act of England of 1876, which provides:

"In every contract of services, expressed or implied, between the owner of a ship and the master, or any seaman thereof, and in every instrument of apprenticeship on board any ship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the owner of the ship that the owner of the ship and the master and every agent charged with the loading of the ship or the preparing thereof for sea or the sending thereof to sea, shall use all reasonable means to insure the seaworthiness of the ship for the voyage at the time when the voyage commences and to keep her in a seaworthy condition for the voyage during the same; Provided that nothing in this Section shall subject the owner of a ship to any liability by reason of the ship being sent to sea in an unseaworthy state where, owing to special circumstances, the so sending thereof to sea, is reasonable and justifiable."

The District Court held that no lien on the vessel was created by the acts above quoted.

It is contended in behalf of the appellant that a lien is created by the act of 1861 upon the ground that the damage was done by the ship. But the Supreme Court, in reviewing this language, which is also found in a Wisconsin statute, held otherwise, in The Osceola, 189 U. S. 158. However, it is not essential to the exist ence of an admiralty lien that it be created by statute. In The Corsair, 145 U. S. 335 and 347, it is said:

"In much the larger class of cases, the lien is given by the general Admiralty law."

In The Bold Buccleugh, 7 Moore P. C. 267, a leading English case, arising out of a tort, it was held that a maritime lien exists in cases where a proceeding in rem is in the proper course. In The Osceola, supra, after reviewing the English and American authorities, it is held: