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plates was a plank flooring, which formed the bottom of the lower hold. At the sides of the tanks were water-ways leading from forward and aft to a well below the engine-room. In the water-ways at the bulk-heads were sluices so arranged that they could be opened and closed from the engine room. The tanks were filled from the sea through an opening in the side of the ship, under the engine-room, and from this opening intermediate pipes led to the separate tanks, and the tanks could be filled altogether or separately. The ship arrived in Boston on April 7, 1884. The whole cargo consisted of 1698 hogsheads. On the evening of the 8th, 1606 hogsheads had been landed in good condition. The remaining 92 hogsheads formed the ground tier in the after-hold. The ship being lightened by the discharge of cargo, it became necessary to run up the ballast tanks to keep her steady, and prevent her from listing in the dock. The seacock was accordingly turned on, and the water was allowed to run into all the tanks simultaneously during the night. The next morning it was found that the tanks had filled, and that the water had leaked through the tops of two of them into the after-hold. The sluices in the water-ways at the bulk-heads having been kept shut, the water had accumulated in the hold, and risen above the dunnage, and flooded the sugar.
It was ascertained on subsequent examination that some of the rivets in the water-ways had become loosened, and the water had leaked into the hold through the rivet holes and seams. The tanks were sound at the commencement of the voyage, but had been strained in a storm of unusual severity which the ship had encountered off Cape Hatteras. The leak was unknown to the officers of the ship when the water was let into the tanks at Boston. The consignees paid all the freight money except $1,975.67, and for this amount the owners of the Gwalia libeled the cargo. The consignees, who appeared as claimants, claimed a deduction of $1,005.97, that being the amount of the damage to the cargo by the water. Both the charter-party and the bills of lading contained the usual exception exempting the ship from liability for damage arising from the perils of the sea. The claim of the owners was that the damage was caused by a peril of the sea, within the exceptions. Whether this would be the case if the ship had been free from fault, I have not found it necessary to consider. I think it is clear, upon the admitted facts, that those in charge of her were guilty of negligence. Their negligence consisted in allowing the water to run all night into the ballast tanks with the sluices at the bulk-heads closed. Had the sluices been open, the water would have run off into the well below the engine-room, and done no injury, or, at least, the presence of the leak would have been disclosed. As I understand the construction of the ship, as described in the depositions in the case, the water-ways and sluices were for the express purpose of draining off any water which might leak into the holds from the tanks when filled, and preventing just such acci
dents as this. One excuse offered for the omission was that it was not usual on the Gwalia to open the sluices when the tanks were being filled. This, certainly, was not a justification, as it showed an habitual failure to use the means and appliances furnished by the ship to prevent damage to cargo by water. Another excuse is that the ship lay by the stern, and the water would not have run off if the sluices had been open. I doubt if this was so, in point of fact; but if it was, the difficulty could easily have been remedied by filling the forward tanks first.
The evidence showed that the weak point of vessels of this class was in the tops of the ballast tanks. In heavy weather, especially when supporting cargo, these are likely to become strained, thus starting the rivets and opening the seams between the iron plates. After the severe gale experienced during the voyage, it was the plain duty. of the master to use extreme care in filling the tanks; and as he used no care at all, I must hold the ship responsible for his negligence. I am of opinion that the claimants are entitled to have deducted from the freight the damage to the cargo.
Decree for the libelants for $969.70, with interest from the filing of the libel, without costs.
POST V. THE GUILLERMO.
(District Court, S. D. New York. March 11, 1886.)
PERSONAL INJURY-OPEN HATCH-NARROW AND DARK PASSAGE-NEGLIGENCE. Where libelant, who was acting as roundsman to see that the night-inspectors were at their post, went aboard the ship G., and fell across an open hatch of the ship, which led to the coal-bunkers, and which was in a comparatively narrow passage-way where it was perfectly dark, and for his injuries brought suit against the vessel, held, that such leaving of the hatchway open was negligence on the part of the ship, in respect to the libelant, whose duties called him there; but negligence of a minor character, which, under other circumstances of doubt, did not warrant the allowance to the libelant of more than his actual loss, which was fixed at $400.
Guy C. H. Corliss, for libelant.
BROWN, J. On the twenty-eighth day of September, 1885, the libelant was acting as roundsman, whose duty it was to see that the nightinspectors on board ship were at their posts. On visiting the Guillermo
1Reported by Edward G. Benedict, Esq., of the New York bar.
during the evening, the night-inspector not answering to his call, the libelant went on board to find him. In passing along a covered passage-way that was quite dark, he stumbled upon the coamings of a hatch leading to the coal-bunkers, and fell across it upon his left side, breaking four ribs and fracturing the fifth, upon one side of the coamings, and suffering considerable injury to his head from striking the coamings on the other side. His left hand and arm, as he testified, went down the open hatch, touching nothing, and his right arm extending across one side of the coamings prevented his falling through. On the part of the vessel there is evidence that at 3 or 4 o'clock P. M. the hatch was covered. There was no further occasion for opening it, so far as known; and the claimants contend that it was closed and not open at the time of the accident. The coamings were about 18 inches high. Although it would be possible that the libelant's arm might have projected outside of the coamings and thus have seemed to him to go down the opening, his testimony is to the contrary, and the severe injuries received by him would, it seems to me, be much less likely to have arisen from a covered hatch, where the coamings were 18 inches above the deck, than from an open hatch. I must hold, therefore, to his account of the accident, although not without some doubt.
The libelant went upon the ship lawfully and in discharge of his duties. The open hatch was not in the situation of the ordinary open hatches for a discharge of cargo, such as may be expected to remain open in port, and which persons going upon the ship must avoid at their peril. This hatch was in a comparatively narrow passage-way along the side of the ship. To leave it open in a covered passageway, which was perfectly dark, I must hold negligence in respect to the libelant, whose duties called him there. The Helios, 12 Fed. Rep. 732. The negligence, however, was of a minor character; and, under the various circumstances of doubt that attend the case, I do not feel warranted in allowing more than the actual loss to the libelant, which I fix at $400.
A decree for that sum may be entered, with costs.
THE HENRY SUTTON.1
MANSON and others v. NEW YORK, N. H. & H. R. Co.
(District Court, D. Connecticu
March 16, 1886.)
1. DEMURRAGE-PLACE OF DISCHARGE NAMED IN ILL OF LADING.
Under the bill of lading the vessel was obliged to discharge her cargo at the Consolidated docks, New Haven. As the company had several docks at New Haven, the consignee had the right to select therefrom the one that he preferred, provided that the dock selected was accessible in a reasonable time, by reasonable means.
2. SAME-DELAY CAUSED BY ACCIDENTS OF NAVIGATION.
Under a bill of lading which requires delivery to be made at a named dock, arrival of the vessel at the dock is ordinarily a prerequisite to demurrage, and delays of the vessel within the port, for a considerable time, from accidents of navigation, without the fault of the consignee, do not require him to receive the freight at another place than that named in the bill of lading.
3. SAME-RECIPROCAL RIGHTS OF MASTER AND CONSIGNEE.
When an accessible dock has been designated, it is the duty of the vessel to employ a tug, or to use such reasonable means as may be necessary to enable her to arrive at the place of discharge; but if a delay takes place at the request of the consignee, he takes upon himself the risks incident to change of weather, and is liable for demurrage if the discharge is not effected within the time stipulated for in the bill of lading, provided the designated dock has become inaccessible, unless by the use of unreasonable means, for an unreasonable time, and the vessel is prevented by the consignee from unloading at its accessible dock.
John H. Whiting and Wm. K. Townsend, for libelants.
SHIPMAN, J. This is a libel in personam for demurrage. On January 21, 1885, the West Virginia Central & Pittsburgh Railway Company shipped, at Baltimore, on board the schooner Henry Sutton, of which Gilbert Manson was master and managing owner, and the other libelants were co-owners, 980 tons of coal of 2,240 pounds each, to be delivered to the New York, New Haven & Hartford Railroad Company at the "Consolidated Road Docks," New Haven, for a specified freight. The said railroad company is very commonly called the "Consolidated Road."
The bill of lading contained the following provision in regard to demurrage:
"And 24 hours after the arrival at the above-named port and notice thereof to the consignee named, there shall be allowed for receiving said cargo at the rate of one day, Sundays and legal holidays excepted, for every hundred tons thereof, after which the cargo consignee or assignee shall pay demurrage at the rate of eight cents per ton a day, Sundays and legal holidays not excepted, upon the full amount of cargo, as per this bill of lading, for each and every day's detention, and pro rata for parts and portions of a day beyond the days above specified, until the cargo is fully discharged, which freight and demurrage shall constitute a lien upon said cargo."
1 Reported by Theodore M. Etting, Esq., of the Philadelphia bar.
The Henry Sutton reached Morris cove, within the entrance to New Haven harbor on Friday, January 30, 1885, at 12 o'clock midnight. On January 31, 1885, at 2 o'clock P. M., the captain reported to William A. Waterbury, who was then the freight agent of the consignee:
The consignee has three docks, Belle dock, the Middle dock, and the Pocket dock, close to each other, at which coal is delivered. Belle dock is the largest. These docks are near the steam-boat docks, where large steam-boats daily land, and are upon the main channel of the harbor.
The coal on board the Henry Sutton was bought for the use of the locomotive engines of the consignee. The largest part of this class of coal is received at the Shop dock, a small wharf south-west of the passenger depot, and connected with the main channel, three-fourths of a mile distant, by an artificial channel, which has been dug out within the last five or six years, and which is about 10 feet deep at low tide, and 80 feet wide. At this wharf are facilities for rapidly discharging a cargo by day and by night. One vessel only, at a time, can lie at the wharf and be discharged. Two vessels can lie at the same time in the basin. Another portion of the coal for the engines of the consignee is delivered at a dock above the draw-bridge. A portion of the same class of coal is delivered at Belle dock.
At this time, on January 31st, the consignee had three cargoes of this class of coal in the port; one, a small cargo, on board the George Aery, which reported on January 30th, and was then discharging at Belle dock; another, on board the Crescent, which reported on January 31st, at 11 o'clock A. M.; and the third, on board the Sutton. The Wm. O. Snow was then lying light at the Shop dock, having discharged her cargo.
At the conversation on January 31st said Waterbury told Capt. Manson that he must go to the Shop dock and discharge. The captain replied that he did not think the channel was deep enough for his vessel. Waterbury thought it was. The captain replied that he would try and take his vessel there on the first tide, which would be that night. Waterbury replied that he could not take her in then, as the Crescent was to go in first, and they did not want two there at once, as they had had some trouble with two vessels in the basin at the same time. This conversation was of such importance that I think it desirable to state the reasons for the finding that it took place. Manson testifies positively that he reported to Waterbury on the 31st, was assigned to the Shop dock, and was prohibited from going there then, and is supported by George Hills. The first conversation which Waterbury remembers he says took place on February 2d, when Manson apparently knew that he had been assigned to the Shop dock. It is manifest that he had been assigned there previously, and that he knew it. The only other person who could have made the assignment was the dockmaster, who testifies that he took the bill of lading on the 31st, made