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The evidence introduced on the question includes a protest made by the master of the Nith, the first and second mate, and the carpenter, at the British vice-consulate in this city, on September 17, 1887, and a report of the port-warden of this district, appointed under the act of June 3, 1859, of a survey of the vessel and cargo, made by him at the request of the consignees of the former on September 20, 1887. The protest was introduced by the claimant, subject to the objection of the libelants, and the report was introduced by the latter without objection.

The protest is an ex parte statement, not required or authorized by any statute that I am aware of. It is made by the agents of, and in the interest of, the owners; and on general principles it is not competent evidence for them, though it may be used against them. It purports to be written by a third person, and not one of the "appearers." It is said to be made from the log, but the book is not produced. 1 Greenl. Ev. § 495; 1 Whart. Ev. § 648. See, also, 2 Conk. Adm. 338. However, on their examination, the master, mate, and carpenter each swore that the protest was correct, and it will be considered as a part of their testimony. The report is made, pursuant to a statute, by a public officer acting under oath. The survey was made at the request of the consignees of the vessel, and the statute required the warden to keep a record of it, open to the inspection of persons interested in the same, and to furnish a certified copy thereof, under his "hand and seal," to any person requiring it. In my judgment this record, or a copy thereof, is prima facie evidence of the pertinent facts contained therein, for or against the parties of this suit. 1 Whart. Ev. §§ 640-643.

The paper introduced is under the hand and seal of the warden, and purports to be a triplicate original. It is neither the record, which the statute requires to be kept in a "book," nor a copy thereof. But the warden, who was called as a witness by the libelant, testified that it was in fact the report of his survey, and it was so accepted by the parties. There is no conflict in the testimony as to the place and manner of stowing the iron and anvils. The bundles and bars are from eight to fourteen feet long. They were stowed "grating fashion" on the floor of the vessel, properly dunnaged, on either side of the mainmast. The anvils were stowed around the mast on either side of the kelson. On top of these were placed three tiers of earthenware crates, and over all eight or ten tiers of the salt in sacks. Between the mast and this cargo there was a mat and an inch board.

On taking out the cargo it was found that sea-water had gone down the mast in such quantity as to wash out or drain away several sacks of salt, leaving a hole around the mast and next to the deck two feet wide on either side. Going down, the damp and wet from this inflow spread out through the straw in the crates 12 feet on each side of the mast, and as far aft, but less forward; but the floor was dry. The straw in many of the crates, when discharged, was still wet or moist, and in some it was soaked and rotten. It also appears that in a blow off Cape Horn the vessel shipped considerable water, and that during the night of April 20, 1887, a rent was made by some means in the mast-coat, down which

the sea-water poured when the decks were flooded for a number of hours. Undoubtedly this was the way the salt around the mast was filled with water and sluiced out into the crates below, where the brine thus formed gradually found its way along and through the straw and ware in the crates downward and outward to the iron and anvils, where it was arrested by its affinity for the metal and converted into dry rust.

The protest, evidently written up in high colors for effect on shore, is filled with florid accounts of almost continual high winds and rough seas, from the river La Plata to the Pacific ocean, during a period of six weeks, in which the vessel is represented as straining and laboring as if on the verge of shipwreck. The casualties, however, are not material, except the breaking of the mast-coat, which the claimant attributes to the straining of the vessel in the heavy seas and high winds. But this is absurd. An iron vessel does not strain or work as a wooden one may. If it did, the rivets which hold the plates together would soon be cut off and the vessel go to pieces or to the bottom. Neither did the rolling and laboring of the vessel cause the iron mainmast to spring or work so as to tear the coat. The mast is wedged tight in the timbers where it passes through between the decks, and has four inches play where it 'passes through the main deck. If the coat was broken by the working of the mast, it would most naturally be torn from its fastening on the mast or the deck, but the evidence is that it was not so torn, but the seam which runs up from the deck to the mast, and on the after side of the latter, was ripped, so that a hand could be thrust in the opening. How it took place does not appear, but it probably was caused by the water carrying something that got adrift against it, or it may be the direct result of a blow from a volume of water thrown on the deck by the shipping of a sea. However, this latter supposition is not very probable, unless the coat was rotten, to which effect there is some evidence. But, however this is, it may be admitted that the ripping of the coat, whatever caused it, was a peril of the sea, within the exception of the bill of lading. And then the question arises, did the misconduct or negligence of the carrier contribute to the injury resulting therefrom to the cargo; or, in other words, would the exercise of proper skill and diligence in the stowage of the cargo or the repair of the coat have prevented this injury, notwithstanding the accident?

From the evidence it appears that the break in the mast-coat occurred some time in the night. The mate says it was repaired next morning. The carpenter says:

"It was my place to go around in the morning and evening, and sound the ship. The mast-coat is near the pumps, and that is where I noticed it when I sounded the ship in the morning. The seam was between five and six inches on the aft part of the mast, and the hole was in the seam."

He adds that it was all right when he sounded the ship in the evening; and in the morning he discovered the break, and repaired it immediately by tacking a piece of lead over it.

During this period it appears that the deck was flooded with water, which may have been running down this hole for at least 12 hours.

This, in my judgment, was negligence. According to the evidence of the claimant, the breaking of the mast-coat may be expected under such circumstances; and particularly if the material is rotten or decayed, as this probably was. Under the circumstances, it should have been discovered before it was. But in the protest, which is signed and sworn to by these witnesses, and which they now swear is correct, it is stated: “At 4 P. M. (April 20th) discovered seam of mainmast coat gone, caused by the heavy rolling and straining; a large quantity of water must have gone down into the hold."

And the master who made this protest, and thereby declared, what is apparent, that “ a large quantity of water must have gone down into the hold" in this way, in his answer to the libel, as well as his deposition, gingerly admits that "some water was precipitated into the hold" by this means, but “is almost certain" that it did not reach the iron. The protest also states that on April 12th "sounded pumps, and found eight inches of water in the forward hold, and six and one-half in main hold;" while the carpenter in his deposition says: "We had no occasion to pump her, [the Nith.] She made no water. An inch or an inch and a half is what we have taken out of her."

But even admitting that the water going into the hold through this rent in the mast-coat is a peril of the sea that could not by ordinary skill and diligence have been prevented or remedied sooner than it was, still, in my judgment, the carrier is liable to the libelant for the injury thereby done to the iron, because it was improperly stowed. There are some things that one person of common sense and ordinary intelligence can understand and have an opinion about as well as another, be he ever so expert; and, in my judgment, one of them is that salt and iron, unless it may be pig, should not be stowed contiguous to one another, and particularly that the former should not be stowed over the latter, when there is any chance for water or drainage to come through or from the salt to the iron.

In Stevens on Stowage, an English work (1869) of admitted authority, it is said, (page 478, § 849:)

"Salt, from its moisture, should be divided by bulkheads from other goods; even crates should not come in contact, for the straw will rot, and breakage ensue. * * * The evaporation from salt, which settles against the under parts of the decks, will, when it falls, prove very injurious to some descriptions of perishable goods below,-iron and machinery especially."

But it is said that this was dry salt; and so, I suppose, is the salt of commerce generally. But, however dry it may be when shipped, it will absorb the moisture around it; and if any water falls on it from above, it will drain out below in the form of brine, and corrode and destroy whatever iron it comes in contact with.

Of course, the master says it was properly stowed. The mate avoids giving an opinion on the question, and says the iron was in the ship before the salt was offered, and the master had to take it. But the stevedores, who know more about the matter than the mate, speak of this salt as a part of the cargo while yet the iron was unstowed. And the

mate is mistaken as to the law. A carrier is not bound to take goods which are likely to injure goods already received for carriage. 2 Pars. Cont. 174.

But it is not likely that the master had anything to do with receiving or stowing the cargo. The owners put the Nith up for Portland, and the freight clerk received the freight as it came on the quay, and gave receipts for it, which were afterwards extended into formal bills of lading, and signed by the master as the agent of the owners; and in the mean time the cargo was stowed by the stevedores, who were especially employed by the owners for that purpose.

On the trial, the claimant produced six witnesses who testified as experts that the stowage was good. Three of them are British ship-masters temporarily in this port. One of them, the master of the Roscrana, undertook to emphasize his testimony on this point by saying that on his voyage out from Liverpool he had brought a cargo of salt and iron, in which the latter was stowed in the hold under the salt. But on being presented with his own bill of lading for 520 bundles and bars of Swedish iron, noted, "Stowed in 'tween-decks," he was taken back, and tried to get out of the dilemma by saying there was some pig iron stowed in the hold.

On the other hand, the libelants produced five witnesses who testified as experts that this iron was badly stowed, and that salt should never be stowed over iron, except pig, unless a tight deck or bulkhead is put between them, which will carry the drainage, if any, to the sides of the vessel. These witnesses are all persons of good standing in this community. They are not sea-tramps, here to-day and gone to-morrow, but men of substance and permanence, who are responsible for what they say. They are all seamen now living ashore. Four have served as masters for many years, and the other, who rose to the rank of first officer, is now engaged in the hardware business.

Their testimony, under the circumstances, far outweighs that of the claimants on this question. But, as I have said, it needs no expert testimony to show that this stowage was bad. The fact is apparent to any person of common sense and ordinary intelligence.

But the error of this stowage can be demonstrated on another ground, beyond cavil. Admitting, for the present, that the salt might have been safely stowed over this iron, as it was, still it should not have been stowed so near the mast. One of the most candid and considerate of the claimant's seafaring witnesses, C. C. Planch, admitted that in this particular the stowage was bad, and that the dunnage between the salt and the mast ought to have been at least four or five inches, instead of one or two; and in my judgment he might well have said one or two feet, and included the crates and iron as well as the salt. Had this been the case, the water that went down the rent in the mast-coat would have run off to the bottom of the vessel without touching the cargo. The fact that the mast-coat is liable to break in such weather as may be expected off the Horn in the passage to the west during the winter, is a circumstance which proper skill and diligence in stowing cargo will take

into consideration, and provide against. This was certainly not done in this case, when at least four or five feet of salt was stowed over crates and iron, within an inch or so of the mast. And so, when the peril came, and the water went down the mast in a stream of some inches in quantity, it necessarily came in contact with the salt, which carried it downward and outward, on either hand, in the form of pickle, to the straw in the crates, which naturally conducted it still further in the same direction, until, as I have said, it was arrested by its affinity for the iron, and converted into rust.

And this gives occasion to notice the argument or suggestions of some of the claimant's expert witnesses, that the presence of the salt added nothing to the peril, as the sea-water that went down the rent was sufficient to have rusted the iron anyway. But the difference between the corrosive power of simple sea-water, which contains only four ounces of salt to the gallon, and water drained through a bank of salt, and containing probably 33 per centum of the same, is something material. Besides, if the salt had not been there, the water would not have been diverted from a direct line, and at most would only have wetted the ends of the iron, and the injury would have been comparatively small. But, in my judgment, it was bad stowage to place either of the articles so near the mast, where they were liable to become wet, or even moist, from the passage of water down the same.

If the salt, crates, iron, and anvils had been dunnaged away from the mast one or two feet, the water that went through the rip in the mastcoat would have passed down to the bottom of the vessel without touching either of them; and the cargo would have reached its destination, so far as this peril is concerned, in good condition.

Admitting that the cargo was properly stowed in every other respect, it was faulty in this. It was the duty of the carrier to guard against this peril of the sea by leaving a sufficient space between the cargo and the mast to allow any leakage at this point to pass directly down the latter, without coming in contact with the former, into the bottom of the vessel, and within the suction of the pumps.

In The Reeside, 2 Sum. 571, Mr. Justice STORY says:

"Dangers of the seas, whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevitable accidents upon that element, must still, in either case, be clearly understood to include such losses as are of an extraordinary nature, or arise from some irresistible force or some overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence.”

In Richards v. Hansen, 1 Fed. Rep. 61, Mr. Justice CLIFFORD, after citing this passage from the opinion in The Reeside, supra, says:

"Hence it is that if the loss occurs by a peril of the sea that might have been avoided by the exercise of any reasonable skill or diligence at the time when it occurred, it is not deemed to be, in the sense of the phrase, such a loss by the perils of the sea as will exempt the carrier from liability.'

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