Warner Barnes & Co. v. Kokosai Kisen Kabushiki Kaisha

• Decision Date: 06 March 1939
• Docket Number: No. 222,223.,222
• Citation: 102 F.2d 450
• Parties: WARNER BARNES & CO., Limited, et al. v. KOKOSAI KISEN KABUSHIKI KAISHA. COMPANIA GENERALE DE TOBACOS DE FILIPINAS v. SAME. THE GLASGOW MARU.
• Court: U.S. Court of Appeals — Second Circuit

102 F.2d 450 (1939)

WARNER BARNES & CO., Limited, et al. v. KOKOSAI KISEN KABUSHIKI KAISHA.^* COMPANIA GENERALE DE TOBACOS DE FILIPINAS v. SAME. THE GLASGOW MARU.

Nos. 222, 223.

Circuit Court of Appeals, Second Circuit.

March 6, 1939.

Hill, Rivkins & Middleton, of New York City (Robert E. Hill, and Barton P. Ferris, both of New York City, of counsel), for appellants.

Crawford & Sprague, of New York City (George C. Sprague, Roy W. Chamberlain, Nicholas J. Healy, III, all of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This is the usual case for cargo damage: it concerns certain parcels of "centrifugal" sugar, shipped in bags in the Philippines, and delivered by the respondent's ship, "Glasgow Maru", at Philadelphia and Savannah in the month of May, 1934. The issues, as finally limited by the parties, are whether the sugar was shipped in good condition; and if so, whether it was properly ventilated — wind and sea permitting — during the voyage. A subsidiary question is whether the ship was overloaded; but this is relevant only so far as it might be thought to add to the probability that the hatches and ventilators could have been more often opened than they were. The parties do not differ about the law: they agree that the shipper must show that the sugar was in good condition when delivered; that the ship must bring the damage within an exception in the bills of lading; and that if she does, the shipper must show negligence. While the shippers do not agree that the damage fell within the exception for "sweat" or for "inherent vice", it is entirely plain that it did, and we may confine ourselves to the first and third of the questions just stated. The district judge has carefully stated the facts in extenso, and since the decision will not have any general importance, we shall not repeat what he said, but assume a familiarity with it. The S. S. Glasgow Maru, D. C., 19 F.Supp. 530.

He did not find whether the sugar was in good order when shipped, contenting himself with saying that, if it was, the damage arose from sweat in the holds, which was not shown to have been caused by the ship's neglect. So far as the condition of the sugar is an essential element in the shippers' recovery, it therefore comes to us as res nova. It is true that the libellants made no proof beyond the recital in the bills of lading that the bags were in apparent good order — which told nothing of the inside — but we may consider the out-turn itself as evidence. The Africa Maru, 2 Cir., 54 F.2d 265; The Matilde Peirce, 2 Cir., 32 F.2d 688. The ship lifted about 128,000 bags at three Philippine ports, of which all turned out good except about 11,000; less than nine per cent. The best conclusion which can be drawn from the testimony is that some of the bags in the bottom tiers away from the turn of the bilges were among those damaged. This is implied in Theus's and Buckingham's testimony, although it is not without some ambiguity. At Philadelphia the number of damaged bags in the bottom tiers was nearly one in six of the whole, which seems too much if the damage was confined to the turn of the bilges. These inside bags on the bottom tiers could not have been damaged by sweat; the damage to them, if any, must have been from "inherent vice", and have come from "migration" of syrup by gravity. Horn, a distinguished expert, thought that the vapor moisture might also "migrate" to the edges of the stow, leaving the inside unaffected, but that was plainly a speculative conclusion. Besides, it is impossible to see why in that case the top tiers, as well as those which faced the bulkheads, were not affected. We cannot of course suppose that all the sugar was in good condition except that which chanced to have been stowed in the bottom tiers inside the turn of the bilges; on the other hand it is not necessary to say that all was shipped in bad condition because syrup gathered in the bottom tiers. The most reasonable solution seems to us to be that the sugar was all in fairly transportable condition, but not altogether immune to the generation of some syrup which sank to the bottom, and injured bags not exposed to the ship's sweat.

The most serious evidence to the contrary is the difference in damage between the Manilla parcels and those lifted at Nasugbu and Bais. The average loss upon the first was only four per cent; upon the the second, ten, which certainly suggests very strongly that the Manilla parcels were of better quality. This is not, however, as conclusive as appears at first blush. For example, one Manilla parcel — "C.A.T.L." — was stowed in the after end of hold two, just forward of about three-fourths of that parcel, shipped at Bais, marked "C.A.B.", which filled hold three. The damage to "C.A.T.L." was not far from six per cent, and that to the whole of "C.A.B." averaged eight; so that it is entirely possible that "C.A.T.L." was damaged to about the same degree as the part of "C.A.B." which was in hold three. Again, all of the other Manilla parcels — "C.A.T." — was stowed in hold four just abaft the engine room. The rest of this hold was filled by 13,000 bags of — about a quarter of that mark — but since we do not know how much those bags were damaged, we can make no comparison between them and "C.A.T." Thus the deduction to be drawn from the difference in damage is not reliable: it is possible that it resulted from differences in exposure to sweat. It is true that the master, the chief officer and the third officer testified that the sugar loaded at Nasugbu had been brought to the pier during heavy rains, inadequately protected, and that they had refused to accept the cargoes of three lighters because they were wet. The master also...