Gough v. Hamburg Amerikanische Packetfahrt Aktiengesellschaft

• Citation: 158 F. 174
• Parties: GOUGH et al. v. HAMBURG AMERIKANISCHE PACKETFAHRT AKTIENGESELLSCHAFT.
• Decision Date: 13 November 1907
• Court: U.S. District Court — Southern District of New York

158 F. 174

GOUGH et al. v. HAMBURG AMERIKANISCHE PACKETFAHRT AKTIENGESELLSCHAFT.

United States District Court, S.D. New York.

November 13, 1907

Black &amp Kneeland, for libellants.

Convers & Kirlin and Charles R. Hickox, for respondent.

ADAMS District Judge.

This action was brought by Richard Gough and another, composing the firm of Richard Gough and Company, against the Hamburg Amerikanische Packetfahrt Aktiengesellschaft, the charterer of the steamship Neebing, to recover the damage received through the wetting of 239 bags of rice, while being transported by that steamer from Hamburg to Montreal, Canada in September, 1903. It is alleged by the libellant that the damage 'was due to the improper, defective and insufficient condition of the hatch covers of said vessel which permitted water to leak through said hatches upon the libellants' cargo. ' The respondent denied that the damages were caused by defective or insufficient hatch covers and alleged that they were due to a peril of the seas or to sweat, both being excepted causes in the bill of lading.

It is suggested by the respondent that the court should not entertain jurisdiction of the action but remit the parties to the Hamburg Courts, respecting which they have provided in the bill of lading: 'All disputes regarding this bill of lading are to be settled according to the law of the Empire of Germany and decided before the Hamburg law court. ' Apart from the terms of the bill of lading, no reason has been advanced for a refusal by the court to proceed with the matter and that it will entertain jurisdiction in such a case has been settled by abundant authority. Prince Steam-Shipping Company v. Lehman et al. (D.C.) 39 F 704, 5 L.R.A. 464; Slocum v. Western Assur. Co. (D.C.) 42 F. 235; Mutual Reserve Fund Life Ass'n v. Cleveland Woolen Mills, 82 F. 508, 27 C.C.A. 212; Fairgrieve et al. v. Marine Ins. Co. of London, 94 F. 686, 37 C.C.A. 190. In view of the authorities and the admission in the answer of the court's jurisdiction, I conclude that the action should be decided upon its merits.

It appears that the Neebing was a new ship built in England by contractors of experience and reputation under the classification of the British Corporation and when finished received from the latter the mark of the highest class. She was designed for use on the Great Lakes and was 256 feet long, about the limit of length to pass through the canal. She was of the usual lake type, with the engine aft, with six hatches and no bulwarks, so that in bad weather the seas necessarily washed over her hatches. There was no criticism upon the vessel save with respect to the sufficiency of the tarpaulins that covered the hatches. The material thereof was hemp or jute, which are so much alike that it is difficult to distinguish them. There were two tarpaulins for each hatch, well tarred, which made them water tight for all ordinary purposes considering the type of the vessel and the fact that they were constantly exposed in bad weather to being washed by the sea. They were of proper material and well looked after with respect to fastenings upon starting and during the voyage. After the arrival in Montreal, the hatches were taken off and the tarpaulins examined. One set of them, that of No. 3 hatch, where the libellants' rice was stowed, was found to be damaged by a cut received on the night of the 15th, through a derrick, fastened to the main mast, getting adrift. This cut was not of great dimensions but sufficient to somewhat impair the efficiency of the tarpaulins, but, apart from the cut, they were found by subjecting them to a severe water test to be sound and water tight. This test was made by putting water in the tarpaulins and keeping it there for several hours. The tarpaulins were subsequently used on a voyage of the vessel through the Lakes when she met with several heavy storms, including rain, and they proved to be in all respects sufficient.

The vessel met with extraordinarily heavy weather on the voyage during which the libellants' rice was damaged. It can best be described by extracts from the testimony of the chief officer, himself a master mariner, and experienced in taking new vessels from England and Scotland across the Atlantic. He said:

'By Mr. Kirlin: Q. Are you a master mariner? A. Yes, sir.

Q. Where is your home? A. London.

Q. Have you come over here on purpose to give your testimony in this case? A. I have.

Q. How long have you been a master mariner? A. Since 1888, with one or two breaks for illness, etc.

Q. What length of time have you seen service on steam vessels? A. Twenty-eight years.

Q. Have you had considerable experience in taking over vessels from builders, and have you taken them and delivered them at the end of their trial trips and first voyages? A. Yes, sir.

Q. How many ships have you taken over from builders for owners' account in that manner? A. Eight or nine altogether.

Q. How many first voyages have you made? A. About twelve altogether.

Q. Have you done some of those as master and others as chief officer? A. Yes, sir.

Q. Have you had experience in taking over the equipment of vessels, such as ropes and tarpaulins? A. Yes, sir, I have had great experience in that.

Q. In this case, was it your particular duty for the owner of the vessel to examine and pass upon the sufficiency of the equipment that was furnished to the ship? A. Yes, sir.

Q. Did that include the tarpaulins? A. That included the tarpaulins.

Q. Did you make a special examination of the tarpaulins before you accepted them for the ship? A. I did, sir.

Q. What office did you discharge on the Neebing? A. Chief officer. * * *

Q. Tell us what you did and what examination you made in connection with taking over the outfit, particularly the tarpaulins? A. One of the outside foremen asked me if I was ready to take the tarpaulins over, and I said 'yes.' He had them all stowed away in the fore end of the ship, and with that he got some men and spread the tarpaulins all over the hatches, and when they were all stretched over the hatches, I examined them all.

Q. How many were there for each hatch? A. Two for each hatch.

Q. Were they new? A. Perfectly new, yes.

Q. What was your object in having them spread out over the hatches? A. So that I could see that they fitted properly and also the quality, the thickness.

Q. How did you have them spread over? A. Two tarpaulins on each hatch. The reason I had them all spread over was more to see that they all fitted properly.

Q. Did they fit properly? A. Yes, sir.

Q. What examination did you make as to their quality and sufficiency in regard to weight and water proofness? A. I took hold of the corners of each tarpaulin, lifted them up and tested them that way, I could tell by the closeness of the weaving that they were sufficiently water-tight.

Q. Did you examine the weaving? A. I examined the tarpaulins thoroughly.

Q. Were they tarred? A. Yes, sir, well tarred.

Q. What is the practice as to tarring tarpaulins on vessels of this class? A. In most cases they dip them in and hang them up and let them dry-- in the tar.

Q. What do you say as to the reasonable adequacy of the tarring of these tarpaulins for their purpose? A. They were quite good enough for their purpose.

Q. What do you say as to the sufficiency of the number of tarpaulins that were provided for each hatch? A. Two new tarpaulins is quite sufficient, and it is recognized on the other side to be sufficient for any ordinary bad weather.

Q. In your experience, what has been the usual number provided for new ships? A. Two new tarpaulins for each hatch; and no more.

Q. What do you say as to whether these are or not of the usual quality provided for ships of this class? A. They are of the usual quality.

Q. And weight? A. And weight; I have had experience from being on board--when I have been in ships belonging-- that is, I have been on board of ships when their outfits have been taken on, and the quality of the tarpaulins was the same.

Q. Were they canvas? A. They were canvas, yes. What they call tarpaulin canvas.

Q. What number were they? A. I didn't see the mark, but judging from the weight of it, I consider it the No. 3 canvas, which is the usual thickness of canvas that they use for tarpaulins.

Q. You then accompanied the ship from where she was delivered over by the builders to her owners, to Hamburg, and came on the voyage to Montreal? A. I did.

Q. Did you go on with her from there? A. I went on up the Lakes with her, yes sir.

Q. Through the Canal? A. Through the Canal, yes.

Q. How long did you remain with her? A. I think it was-- I went up as far as Port Arthur and looked after the discharging of that cargo and the loading of another cargo, and back to Buffalo, and left the ship in Buffalo.

Q. During the entire time that you were with her were these tarpaulins in use? A. They were.

Q. Were any other tarpaulins used? A. I don't remember any other.

Q. Who overlooked the loading and stowage of the cargo in Hamburg? A. I did.

Q. What do you say to the manner in which that work was done? A. It was done in a proper manner.

Q. Who did the loading? A. The stevedore, under my supervision.

Q. What stevedore? A. The Hamburg stevedores.

Q. Stevedores of the Hamburg-American Packet Company in Hamburg? A. Yes sir. * * *

Q. What was done with regard to battening down the hatches after the completion of the loading in Hamburg? A. They were all stretched out and battened down...