Duche v. Thomas and John Brocklebank, 199.
| Decision Date | 07 April 1930 |
| Docket Number | No. 199.,199. |
| Parties | DUCHE et al. v. THOMAS AND JOHN BROCKLEBANK, Limited, et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Harry D. Thirkield, of New York City, for appellants.
Lord, Day & Lord, of New York City (James S. Hemingway, of New York City, of counsel), for respondents.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The appellees' steamship Makalla left Colombo, Ceylon, in December, 1925, bound, via Port Sudan, Port Said, Oran, and Boston, for New York. Part of her cargo consisted of one thousand cases of desiccated cocoanut consigned under five bills of lading to the order of the appellants at New York. It was stored in her No. 2 hold. The weather was alternately mild and rough until January 24th when a ten-day period of squalls, strong winds of moderate to fresh gale velocity, reaching hurricane violence on January 30th, were encountered. The ship was subjected to continuous buffeting, from which she frequently took heavy seas fore and aft. Considerable minor damage was done and one seaman fatally injured. On January 29th, in the middle of the afternoon, a huge wave broke over the ship and tore the coaming of the No. 1 starboard ventilator from the deck, ripped off the No. 2 ventilator, allowing sea water to pour into No. 2 hold where the cocoanut was stored, and did considerable damage to railing, doors, and pipe casings. It is claimed that this sea came over the lee side, but the only man who is said to have seen it did not testify, and all the support we find in the record for this claim may be traced to statements made by him. Besides, it is not made apparent, and seemingly could not be, that the force of the wave upon the ship was at all enhanced by its coming over one side rather than the other, although it is true that a different part of the vessel may have for that reason been made to bear the brunt of it. However this may be, it was shown to be a wave of such damaging proportions that not only was one ventilator coaming broken, but another ventilator was pushed up and off its coaming, to say nothing of its other destructive results. We think such uncertain and unpreventable action of the elements falls within the peril of the sea exception to the bill of lading as that phrase is defined in The Rosalia (C. C. A.) 264 F. 285.
True, it is there said of a peril of the sea "that the peril which forms a good exception in a bill of lading means something so catastrophic as to triumph over those safeguards by which skillful and vigilant seamen usually bring ship and cargo to port in safety." With this we are quite in accord. This statement,...
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THE SCHICKSHINNY
...in Philippine Sugar Centrals Agency v. Kokusai Kisen, etc., 2 Cir., 106 F.2d 32, 34, 35, and of Judge Chase in Duche v. Thomas & John Brocklebank, 2 Cir., 40 F.2d 418, 419, 420, as to what constitutes a "peril of the sea", the evidence as to the peril in this case remains unsatisfactory. Ap......
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Cont. Ins. v. Lone Eagle Shipping Ltd. (Liberia), 94 CIV. 3306 (DLC).
...The Second Circuit has explicitly distinguished such cases, including several on which Thyssen relies such as Duche v. Thomas & John Brocklebank Ltd., 40 F.2d 418 (2d Cir.1930) and The Giulia, 218 F. 744 (2d Cir.1914). See Allen N. Spooner & Son, Inc. v. The Connecticut Fire Ins. Co., 314 F......
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National Grocery Co. v. Olsen
...Adams case, supra. It will be recalled that the definition which we have accepted and quoted is from the latter case. The opinion in the Duche case then proceeds with this significant which might well be made with reference to the case at bar: 'A multiplication of definitions will result on......
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THE VIZCAYA
...1896, 74 F. 413, 415; The Giulia, 2 Cir., 1914, 218 F. 744, 748; The Rosalia, 2 Cir., 1920, 264 F. 285; Duche v. Thomas & John Brocklebank (The Makalla), 2 Cir., 1930, 40 F.2d 418; Philippine Sugar Centrals Agency v. Kokusai Kisen, etc., (The Naples Maru), 2 Cir., 106 F.2d 32, 1939 A.M.C. 3......