Norris Grain Co. v. Great Lakes Transit Corporation, 4891.

• Decision Date: 30 March 1934
• Docket Number: No. 4891.,4891.
• Parties: NORRIS GRAIN CO. v. GREAT LAKES TRANSIT CORPORATION.
• Court: U.S. Court of Appeals — Seventh Circuit

70 F.2d 32 (1934)

NORRIS GRAIN CO. v. GREAT LAKES TRANSIT CORPORATION.

No. 4891.

Circuit Court of Appeals, Seventh Circuit.

March 30, 1934.

Single & Hill, of New York City, and Ekern & Meyers, of Chicago, Ill. (Douglas D. Crystal, of New York City, and Luther F. Binkley, of Chicago, Ill., of counsel), for appellant.

Brown, Ely & Richards, of Buffalo, N. Y., and Mayer, Meyer, Austrian & Platt, of Chicago, Ill. (Laurence E. Coffey, of Buffalo, N. Y., and David F. Rosenthal, of Chicago, Ill., of counsel), for appellee.

Before SPARKS, FITZHENRY, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing the libel of appellant brought to recover $9,861.71 damages occasioned by failure of appellee to deliver a shipment of 160,000 bushels of corn in as good condition as when received. The defense is that the damage resulted from a "peril of the sea." When appellee's steamship Chicago, that left Chicago at 4:50 p. m., November 8, 1926, was out about 100 miles, it ran into a severe storm.

Captain Ebisch of the Chicago testified that for twenty-four hours after 2 o'clock on the morning of the 9th the wind went up and down with varying velocity and as high as sixty to seventy miles per hour, and that the deck that was about twenty feet above the water line was continuously awash. The captain had sailed the inland lakes for nearly thirty years and said it was the heaviest sea he had seen on Lake Michigan, but that he had seen storms that bad on other lakes. He testified that in the month of November they generally got pretty rough weather and there were many serious storms so that loaded boats very frequently had their decks awash. The effect on the ship Ebisch said was: "She strained and labored hard, trembled at times. There was no damage to the upper works but a water tank was carried away — some windows in the fore and aft cabins were blown in and some rivets in the butts were started in the straining of the ship."

When other witnesses from the Chicago were called, counsel said appellant did not intend to call any witnesses to contradict the testimony of Captain Ebisch, but his testimony was not anywhere admitted to be a true statement of the conditions existing during the storm.

Although Captain Ebisch testified that he knew what a marine protest was and that it was his idea that a protest was entered by a master when he had traversed a sea and sustained weather because of which there was likely to be some damage to the cargo, yet when he tied the Chicago to the dock in Buffalo on the night of November 12th and notified the representative of appellant thereof, he says he inspected the cargo and found no evidence of water or other damage, and that although he notified appellee that he had sustained rough weather he said nothing about it to appellant, and filed no protest until something like twelve days later and after he had been told that the cargo was damaged.

The captain seems to have been honest but careless in his examination, because nearly 10 per cent. of his cargo was then damaged by water.

Appleton & Cox, New York, wrote to appellee on November 15th saying:

"We insured a considerable quantity of grain on board the SS `Chicago' on her last voyage from South Chicago to Buffalo. We shall continue to insure this cargo during the winter storage period.

"Would you please advise us whether the vessel met with any peril during this last voyage, and whether a protest has been extended or is to be extended covering this voyage. We desire this information in order that we may take steps to minimize damage to the cargo, if any."

Appellee received that letter on November 16th but made no answer until November 23d, when appellee wired Appleton & Cox as follows: "Please see your letter November fifteenth about storage cargo of corn loaded to our Steamer Chicago Stop Vessel encountered heavy weather on the down voyage and we have report from grain inspectors representing consignee that considerable cargo has been damaged. Advise."

Appellee's contract was to carry and deliver the cargo in good order and condition (dangers of navigation, fire, and collision excepted). Dangers of navigation are said to mean "perils of the sea." A "peril of the sea" is that danger that comes when wind and wave in their fury work their will with ship and cargo after the owner has used all reasonable effort to make the ship seaworthy and well qualified to withstand those hazards and perils that the owner knows or has reason to believe must be encountered. The language of Admiral Smyth's Sailors Word-Book is even stronger. He says it "does not mean danger or hazard but comprises such accidents as arise from the elements and...