DECISIONS OF THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES, FOR THE NINTH CIRCUIT. MORRIS SPEYER V. THE MARY BELLE ROBERTS. DISTRICT COURT, DISTRICT OF CALIFORNIA. 1. CARRIER, WHEN LIABLE FOR WHOLE DAMAGE ARISING FROM DIFFERENT CAUSES.-Where goods arrived in a damaged condition, and it appeared that the damage was in great part caused by the carrier's fault, but that damage, to some extent, would probably have been caused by perils of the sea encountered by the vessel, but to what extent the carrier was unable to show; held, that he was liable for the whole. Before HOFFMAN, District Judge. The facts appear in the opinion of the Court. McAllisters & Bergin, for claimant. HOFFMAN, J. The libels in the above cases, which by consent were tried together, were filed to recover damages for injuries to goods shipped on the above vessel to be transported from Hamburg to this port. The injury to the goods being proved, the carrier offered evidence tending to show that it was occasioned by perils of the sea. Opinion of the Court--Hoffman, J. [February, The libellant then produced testimony tending to prove as averred in the answer, that the damage was caused I. By careless and negligent stowage of the cargo. II. By the reason of the insufficient and defective condition of the scuppers when the vessel commenced her voyage. III. By sweat and moisture arising from insufficient ventilation, and the neglect of the master, while at Falmouth, (a port of refuge he had sought to escape a gale during which the vessel had made a great deal of water) to remove the hatches or take any measures to dry the cargo, and, also, by his neglect during the voyage from Falmouth to take off his hatches in order to dry and ventilate the cargo. The evidence shows beyond controversy, that shortly after leaving Hamburg, the vessel was exposed to sea perils of an unusual character. The severity of the gale, the ugly, cross-sea, the straining and leaking of the ship, the long and ineffectual pumping by the crew, and their exhausted condition in consequence, their application to the master to seek a port of refuge, and his final determination to do so, after consultation with the mate, are established by the concurrent testimony of all on board. It is also, I think, evident that the vessel was well provided, and in a seaworthy condition, when she left Hamburg, with the exception that there was a hole in one of her scuppers. It was strenuously urged at the hearing that, as the scupper, at the place where this hole was found, passed through solid timber, but little water could have reached the cargo, and that, therefore, no considerable part of the damage can be attributed to this defect. And such would seem to be the fact, if the statements of the witnesses, as to the precise position of the hole in the scupper, be accepted. On the other hand, the master, in his protest, seems to ascribe the greater part of the damage to this very cause. His statement is, "On this day had an examination, found the port scupper had been broken off at some time in the severe weather encountered, and that the sea had free access to the vessel through this scupper." This statement contains two errors: First, The hole in Opinion of the Court--Hoffman, J. 1871.] the scupper was discovered, not after the arrival of the vessel at Falmouth, but some time previously, and during the gale; Second, There is no reason to believe that it was made during the gale, or at any time after the departure of the vessel. Its origin was ascribed by the master and officers, either to an injury inflicted while clearing the scupper of ice, or else made by a boat hook in the hands of some lighterman along side the vessel at Hamburg. In the view I take of the case, it is not necessary to attempt to determine (if that were possible) how much of the injury to the cargo is to be attributed to this cause. That some of it was due to it, cannot, I think, be denied; but probably no very considerable amount when compared with the total damage. Some attempt was made to show that the leak under the grub-beam was caused by defective caulking. I think, however, under the proofs, that the straining and working of the ship in the very severe storm she encountered, may be accepted as the cause of this leak. But the most important allegation of the libel with regard to the stowage of the cargo and the insufficiency of the dunnage, appear to be clearly established by the proofs. A large number of witnesses, including the port warden and other experts, concur in the statement that the dunnage to the cargo, especially at the bilges, was wholly insufficient. The master himself seems to admit that the cargo was not stowed as he directed, nor, we may infer, as he considered properly. He states that when the stevedores were stowing the cargo he was down with them as often as he could be-perhaps, one third of the time. That he gave orders to break out cargo when he did not think it was stowed properly" This happened at least a dozen times, probably many more, my orders were obeyed whilst I was there. I am satisfied from the breaking out of the cargo here that the cargo was stowed back as it originally was. I mean that after I had left the hold they put things back as they were before." I do not deem it necessary to recapitulate the names of the numerous witnesses who confirm the conclusion which would naturally be drawn from these admis |