Doherr v. The Etona
| Decision Date | 24 November 1894 |
| Citation | 64 F. 880 |
| Parties | THE ETONA. v. THE ETONA. DOHERR |
| Court | U.S. District Court — Southern District of New York |
Wing Shoudy & Putnam, for libelant.
Convers & Kirlin, for claimant.
The above libel was for damage to hides shipped at Buenos Ayres on board the British ship Etona in the lower hold, No. 2 hatch, above which was stowed a quantity of Pernambuco sugar the drainage from which was found on arrival of the ship at New York, to have injured the hides beneath.
The evidence shows that the deck where the sugar was stowed, was a perfectly tight iron deck; that the shipment of hides in January, 1894, was under a bill of lading, which permitted the taking of cargo at other ports, excepted damages arising from negligence, provided that in no case should the steamer be liable for any damage to the goods, and that all damage claims should be 'settled direct with the owners according to English law to the exclusion of proceedings in the courts of any other country'; an evidently invalid stipulation as against these consignees, and as to transportation between Brazil and New York. Slocum v Western Assur. Co., 42 F. 236; The Guildhall, 58 F. 796 and cases there cited. The drainage in question arose under the following extraordinary circumstances:
After the loading of the hides at Buenos Ayres in the lower hold the ship proceeded to Rio, and thence to Pernambuco, where she took in sugar between decks. Thence, by a passage of about 7 days, she went to Para, a port about 100 miles up the river Amazon, where she was taken to an anchorage by a local pilot, and anchored by him near other shipping with first 45 fathoms of chain out, and afterwards 60 fathoms, and proceeded to unload certain cargo shipped for that port. On the fourth day after anchoring, and while unloading, the anchor dragged, probably from the great force of the current on the flood tide, which there rises about 12 feet, and from being somewhat outside of the ordinary anchorage ground. Before she could be brought to a stand, by the second anchor, which was then thrown over, the ship grounded upon a sand bank, which caused her to take a strong list, and some of the drainage of the sugar in consequence of this list ran down over the coamings of the hatch upon the hides beneath, notwithstanding all efforts to prevent it.
It is evident that the efficient cause of this damage was the stranding on going adrift. This was wholly unexpected, and could not have been anticipated. It was a sea-peril within the exception of the bill of lading. Montoya v. Assurance Co., 6 Exch. 451. The burden of showing negligence in the ship was on the libelant. Transportation Co. v. Downer, 11 Wall. 129; The Glendarrock (1894) Prob. 226; The Neptune, 6 Blatchf. 183, Fed.Cas.No. 10,118. Other vessels in that vicinity did not drag. If negligence is to be imputed to any one, it...
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