The Helen Barnet Gring

SOPER, District Judge.

This libel against the schooner Helen Bar-net Gring is based upon a claim for cargo damage. The schooner is a vessel 202 feet in length by 40 feet beam, and was engaged to carry some 1,800 tons of fertilizer from Baltimore to Searsport, Me. The contract was covered by a general charter party for sailing vessels, under which the Gring was tendered to the Davison Chemical Company, the libelant, in the early part of February, 1929. She docked on February 12th at Baltimore, yras loaded during the 13th, 14th, and 15th, issued a bill of lading for the cargo on the l^th, sailed on the 17th, and arrived at her destination on or about Mareh 9th. When she reached Searsport it was discovered that ^bere was damage to her cargo, which has not been described in detail in the evidence, but ls estimated to have affected from 5 to 10 per cent, of the goods. The top of the cargo was dry, but in the lower hold the bags of fertili«F. ^ere- ™\toJ bei^ of four or five feet, ^“reached the fourth tier of bags. There was also a comparatively small damage affecting only 100 or 150 bags which were stored on the starboard side of the ship in the ^veen-decks.

There 310 two general theories advanced by tlle respective parties as to the causes of the damage. The libelant claims that the ship was leaky and unseaworthy, and that her ™rs fail®d to e™e that degree of due dlllgenee undCT charter party, they were re(3ulred to USe m °rder to relleve tW selves of liability for damages arising from a defective ship. The libelant says that by reason of certain defective seams and leaks • ,, , „ „ ,, , , , , , m tbe bul1 of the ,vess01 she took water m§> Y07a^e'j "witli the consequent damage te her cargo. On the other hand, the ship owner and claimant of the vessel contends that the vessel was seaworthy in every partieular, but that on this particular voyage she met with particularly heavy weather, high winds, and rough seas, whereby she took only that amount of water which every wooden vessel must take at sea, and that in the rolling and straining of the vessel in the heavy seas, caused by high winds, she blew her bilges; that is to say, the water in her bilges was forced up, due to the rolling of the ship, through the crevices in the ceiling of the ship, and came thence in contact with the cargo.

The court is' convinced that, whatever may be said in regard to the tendency of a ship of this sort to blow her bilges and injure her cargo in heavy weather, the preponderanee of the evidence shows that the ship was not seaworthy when she sailed. A number of circumstances contribute to this eonelusion. The vessel had laid at Newport News or Norfolk idle for some six weeks before the voyage in question. She was surveyed by Surveyor Leach on February 8, 1929. His testimony shows that to some extent, certainly so far as the interior of the vessel is eoneemed, he accepted the statements of the mate or engineer as to her condition, but he personally examined the hull of the ship, acting for the Boston Insurance Company. He wired that company on February 8th after his survey that the firing was satisfactory, but her seams must be searched between the light and load lines before loading, and that her owners should attend to this matter. His more formal survey report, of the same date, shows that the condition of the vessel was good in other respects, but under the heading of “Caulking” states that the seams and butts between the light load and the load line in places showed that the cement was broken and the oakum soft; that this condition was not serious, but was one which the owners should attend to before loading the next cargo. He reported that the deck and top side seams were in good condition. Notwithstanding this warning from the surveyor, which was communicated verbally to the captain of the ship, no searching of the seams was made and no caulking was done. When the ship got to Searsport and the damage to the cargo was discovered, she was visited by a representative of the shipper and also by a representative of the consignee. . Their testimony shows that the hold of the vessel was wet, that it was stained with the cargo to a height of four or five feet, and also that there was some damage to the cargo stowed in the ’tween-deeks on the starboard side. Their • testimony also shows that the captain complained that he had had no time to caulk the vessel before she sailed, and that he said he had not been able to secure a certificate of seaworthiness. He also stated that there was a defective steam pipe beneath the main deck underneath which the damaged cargo in the ’tween-deeks was found,

A further examination of the ship was" made as to her seams by the surveyor Stein 0n April 3d, after the vessel had returned to Baltimore with a portion of the damaged goods. He found that the seams between the %]•Ioad “d the deck were in bad f ape, and_ that they required caulking be-f™® ,the Jf** f twenty-one P , m ^at Part hull; he found the wood “ tm?era of tbe bold ^’e water-logged; ^at the steam ppe ref erred to was rasty and Plated with pinholes, and be offered the °Pmion aa* tbe vessel must have had, during ™yage to Searsport as much as a foot of water over eellmS of tbe hold-

d'he testimony on the other side as to this question of seaworthiness should also be referred to. There was a survey by the Suryoyor Schilpp on February 14th, before the vessel sailed. This survey seems to the court to have been quite casual and superficial. It was undertaken under a general contract between the surveyor and his insurance eompan7 and without particular reference to any repairs that, if necessary, should be made to the ship, or with reference to any particular contract or • proposed contract of freight movement. At that time the vessel was part-loaded so that a portion of her hull was nc|t opposed for examination, and she ■ was tying on the starboard side close to the pier upon which the surveyor stood to examine the hull. He could see only the starboard s^e °i the vessel and that imperfectly by reason of the conditions. He made no examination of the port side. His testimony is supported by a report which he made at that time to the insurance company that the vessei’s condition was good, and that she was sa^e ■®<>r the carrying of her cargo,

This testimony does not convince the court that the ship was in good condition, particularly as the surveyor Leach, employed, it would seem, by the same insurance company, had found the defects above described when the vessel was lying in the water at Norfolk, and he had access to her hull. There is also a survey made at Searsport after the vessel arrived with her damaged cargo by Concord 'and Gilkie. There is the unusual cireumstanee that two surveys are offered to the court, one by the libelant and one by the owner of the ship, signed by the same surveyors and contradictory in terms. One of these surveys is undated, but refers to the fact that the surveyors went on board the ship on March 16th and March 19th to survey the •damage to the cargo. The report shows that the cargo was badly damaged from water whieh, according to the report, apparently came down through the thick work at the beam ends, owing to the heavy rolling and straining of the schooner. The report states that the schooner seems staunch, sound, and in every way fit to make the voyage, and in the opinion of the subscribers the damage to the cargo was due to the unusual violent gales encountered in the passage.

On the other hand, there is the report offered by the libelant under date of March 21, 1929, referring to the same two visits of March 16th and March 19th. This report shows the quantity of damaged goods then noticed and concludes with the statement as follows: “As the survey was intended only to cover the cargo damage, we did not inspeet the hull of the vessel or examine the caulking.” This report is supported by an affidavit of the surveyors before a notary.

tj. ,. ,, . ,, , ,, . . , It seems to the court that the contrast be- , ,, , , . .... , tween these two reports is so striking, and , , ’■ - the statement m the second report mentioned ,, , ... „ , . that no examination of the hull was made is . „ ., , so definite, that it is impossible for the court , ,, . , • . to conclude that there was no damage to the , „ . , „ , . ,, ... . ,, hull or defect m the caulking observable. &

Finally evidence was offered by the. captain that there was no leak in the vessel during the early part of the voyage before the rough weather was encountered, and he accounts for the water which the vessel took entirely by reason of the violence of the storm, Reference was made during the testimony and during the argument of the case to some eyidenee of the surveyor Stein that the seams in the vessel at two or. three places were so wide apart that it was possible to insert a %g-inch ruler through the - shell planking, and, indeed, through the seams of the ship. It is argued that this is an extravagant statement at least, because it would have been impossiMe for the vessel, after having been loaded and after going to sea, to proceed without taking substantial quantities of water through these openings. It is not necessary to conclude that the openings in the seams were so very large that the vessel needed to be pumped all the time in order to find that there was defective caulking. It must also be borne in mind that the log of the ship; whieh. has been produced in court, has very little, if any, information in regard to the amount of water in the ship during the voyage, and it may well be that, before the rough weather was encountered, the pumps were adequate to keep the water in the hold within bounds, notwithstanding the defective eaulking. It is also most important in the opinion of the court that after the vessel returned to Baltimore she was caulked, and that she then went to Newport. News where the caulking was continued. There is also evidence that the steam pipe referred to was renewed. The testimony as to the caulking is verified by the captain of the ship, and that as to the renewing of the steam pipe was given by the purveyor Stein and not denied by the captain, N,° °ne has been P^dneed to show precisdy ^at repairs were made by the ship No bills ^ave been offered No survey on the part of the ship seems to have been made.

_ Under all these circumstances it seems to eourt conservative to state that the great preponderance of the evidence is that the S^P was leaky when she sailed, that the own-notice of her defect, but failed to take ^™-e remedy it.

It is, nevertheless, the theory of the own- ’. ers of the ship that under the terms or the . , , .. . . ,, . . „ charter party the shipper took the risk of , f ,/ 1 L. , ,. damage to the cargo, and that the cargo was , , ,, , • , , . „ , . ,, damaged through no inherent defect m the , ,, . , „ ,, ,, ship, but through the violence of the weather, T, ’ . ? , „ ,, , . It seems also to be the theory of the ship- ... . , , , owners that, even though there might have been some unseaworthiness of the ship, nevertheless, there would have been the same damage in a seaworthy ship if the violent winds which are recorded for the dates in -question had been encountered. The weathea? reports show that the wind ranged from 35 to 55 miles an hour at various points on the voyage.

One of the terms of the charter party relates to the loading of the ship, and this is re-Red on by the shipowner in this case. This eiaus0 provides: “The cargo is to be loaded, trimmed and discharged free of expense to the vessel, the vessel providing free use of her tackle and other equipment as on board. Cargo tobe shipped on the vessel’s skin at the risk and expense of the cargo. Dunnage, if required, to be for vessel’s account.” The shipowner claims that by the true construetion of this language the cargo owners assumed all the risk when they put the cargo on the ship; amongst other risks it took that which has been described as the blowing of the bilges in rough weather, such an oeeurrenee as was noticed in the opinion of this court in the Charles Rohde, 8 F.(2d) 506, 1925 A. M. C. 1594. It may be assumed for the moment that the cargo was shipped at the cargo owner’s risk. There are two matters to be considered in this respect, and tbe first one is whether any dunnage placed on the ceiling of the ship would have been adequate to protect the cargo in such a storm. The testimony of Mr. Vane, one of the shipowners’ experts, is that no wooden ship is safe for the shipment of cargo, no matter how seaworthy she may be if she meets a violent storm; that no amount of dunnage will protect the cargo from the water which will be blown from her bilges. There is uniformity of testimony that all wooden ships leak more or less, no matter how seaworthy they may be, and it was Mr. Vane’s opinion that water so taken would necessarily be blown through the crevices of the ceiling, so that no dunnage* would protect a cargo unless it was at least three feet high, and that such dunnage would be impracticable. The other witnesses in the ease do not go so far, but content themselves with saying that wooden ships generally will leak, but the burden of their testimony is that dunnage will protect the cargo. The court is unable in this case, upon the testimony referred to, to reach the conclusion that all wooden ships are to be condemned as ineffieient carriers of goods in rough weather, The preponderance of the evidence is the other way.

There remains in this connection the other question, whether the dunnage in this ease was adequate. It consisted of boards or timbers of some four inches thickness which were placed upon the ceiling over the-bilges. It is the testimony of Surveyor Stein that, if the ship was tight, the dunnage was sufficient; of Mr. Vickers, the head stevedore superintendent for the shipper, that in his experience dunnage of this sort was adequate and there is the further persuasive circumstance that the dunnage that was actually_ used was furmshed by the ship, and it would be a fair mference, if there were no testimony to the contrary, that the ship would not furnish m-adequate and insufficient protection to the cargo.

On the other hand, there is the testimony of several witnesses, the captain of the ship, Surveyor Leach and Surveyor Schilpp, to the general effect that dunnage should be more than four inches in height and should run from five to eight inches, varying according to the witness. There need be no citation of authority that the burden of proof as to this excuse for the damaged condition of the cargo is upon the ship, and, after a careful consideration of the evidence on the point, the court is unable to say that the dunnage in this case was not adequate. There is testimony to the contrary. But it seems to tbe court that it is sufficiently offset by the testimony of ex-perieneed men who gave evidence for the libelant which, when taken with the fact that the ship furnished the dunnage in question, makes the court unable to say that the charge of inadequacy of dunnage has been proved,

Moreover, it is the opinion of the court that the clause in question does not have the meaning for which the ship contends. It is said that the important sentence is this: “Cargo to be shipped on the vessel’s skin at the risk and expense of the cargo.” This is said to be an all-inclusive phrase, and i'ndieates that any damage to the cargo from the placing of the cargo on the vessel’s skin is to be borne by .the shipper. This sentence, it is contended, should influence the interpretation 0f the following one, which is, “Dunnage, if required, should be for vessel’s account,” and from this combination of sentences it is urged that the shipper takes all the risk of shipping 0n the skin or of determining what kind of dunnage should be used and of seeing that it js furnished, and, if the shipper fails to require the proper dunnage, then the loss is at his risk..

It seems to tbe court tbat it is reasonable to apply to the interpretation of this clause the rule .which was laid down in the Caledonia, 157 U. S. 124, 15 S. Ct. 537, 543, 39 L. Ed. 644, where the court, speaking of exeeptions in a bill of lading, exempting the shipowner from certain liabilities, said: “As the exceptions were introduced by the shipowners themselves in their own favor, they are to be construed most strongly against them.”

Th¡g charter d is on a p.rinted foIm fumished by the ship’s brokers. The exeeptions referred to are in typewriting. But there geemg nQ a reason to the eourt why these exceptions, having been put in by the brokers for the benefit of the vessel, should-not be eonstrued strictly against the vessel, To the mind o£ the court tliese sentences indieate an alternative option offered to the-shipper: The cargo may be shipped upon the skin of the ship, and, if so, the' shipper takes-the risk; the cargo may be deposited upon dunnage, if the shipper prefers, and, if so, thedunnage is to be furnished by the vessel and charged to the vessel’s account. Under this, interpretation it is the duty of the vessel to furnish the dunnage, and it seems unreasonable to charge .the shipper with the responsibility for getting the proper kind of drnnage. While the shipper in this case happens to be an experienced one, certainly it had i o particular knowledge of the requirements of this-particular ship, and when the shipper gave notice, as he did in this ease, that dunnage would be required, it was the vessel’s duty to furnish adequate dunnage, and, if such was not furnished, the risk was the vessel’s, and not the shipper’s. There is a difference, it seems to the court, between the circumstances of the case at bar and that of the Harry F. Hooper (D. C.) 42 F.(2d) 758, 1930 A. M. C. 1071, and in the ease of the Elizabeth Edwards (C. C. A.) 27 F.(2d) 747, 1928 A. M. C. 1281, for in these eases it is clear that the risk of the particular stowage was taken by the cargo owners, ahd there was no such alternative clause as that referring to dunnage in the charter party in this suit.

It is the conclusion of the court that the libelant is entitled to a decree, crediting, how-over, thereon the amount of freight money retained, and that the cross-libel of the owner of the ship for freight should be dismissed.