Philippine Sugar C. Agency v. KOKUSAI KISEN, ETC.

• Decision Date: 26 July 1939
• Docket Number: 350.,No. 349,349
• Citation: 106 F.2d 32
• Parties: PHILIPPINE SUGAR CENTRALS AGENCY et al. v. KOKUSAI KISEN KABUSHIKI KAISHA. COMPANIA GENERAL DE TABACOS DE FILIPINAS v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

106 F.2d 32 (1939)

PHILIPPINE SUGAR CENTRALS AGENCY et al. v. KOKUSAI KISEN KABUSHIKI KAISHA.

COMPANIA GENERAL DE TABACOS DE FILIPINAS v. SAME.

Nos. 349, 350.

Circuit Court of Appeals, Second Circuit.

July 26, 1939.

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

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

Before L. HAND, CHASE, and PATTERSON, Circuit Judges.

L. HAND, Circuit Judge.

These are appeals from decrees in the admiralty dismissing libels for cargo damage. The libellants are the owners of certain parcels of sugar which were shipped on October, 1933, in the Philippine Islands on the respondent's vessel, "Naples Maru", bound for Philadelphia and Brooklyn. The sugar was in about 122,000 bags, distributed throughout the ship's cargo-spaces; and on the outturn at Philadelphia and Brooklyn about 11,500 bags were found to have been injured. This injury was of three kinds: salt water, fresh water and molasses stains. Most of the salt water damage was in holds one and two: in hold one it included sugar in both of the two 'tween decks and in the lower hold; in hold two, only in the two 'tween decks. A little damage was found in the 'tween decks of hold four. The sweat damage was on the wings, and on the top tiers in all holds and 'tween decks. The bags in the bottom tiers of all lower holds and 'tween decks were molasses stained, but this was worse in the holds than in the 'tween decks. Throughout the stow were scattered at random bags stained with molasses, surrounded by unstained bags. The ship justified under an exception for perils of the sea, contained in the bills of lading. She alleged that she had encountered extremely heavy weather in the Pacific between November 28th and December 2d, during which it was impossible to ventilate the cargo, although the storm was accompanied by a severe drop in temperature; and that while it was raging, the tarpaulins covering hatches one and two were either torn or got loose; and that the iron hatch combings were broken, admitting sea water. As for the "molasses damage" throughout the stow, she relied upon the inherent vice of the sugar itself. Finally, she asserted that the libellants had not proved the condition of the cargo when delivered.

As to the sea water damage, the libellants answered that the tarpaulins were old and unsound, and would not have withstood a storm of ordinary violence for the season. As to the sweat, they said that the cargo had not been properly ventilated at any time between Manila and Philadelphia, not only because the ship had an improper ventilating system, but also because the cowls had been stowed in the 'tween decks, and had never been shipped on the voyage. They further alleged that the ship was loaded below her marks which made her more readily take seas aboard during heavy weather. They said that the damage to the bottom tiers in the 'tween decks was due to the clogging of the scuppers, which had not been properly cleaned when the ship broke ground; and they attributed the damage to the bottom tiers in the hold to the accumulation of sweat and salt water in the bilges, which swashed up against the bags with the movement of the ship.

First, as to the salt water damage. We are satisfied that the storm which the ship met between November 28th and December 2d was a "peril of the sea" within the meaning of the bill of lading. By the evening of the 28th it was blowing from the northeast with a force of nine on the Beaufort scale, and this kept up until the next morning, when it increased to ten. The wind continued at this velocity until the evening of the 30th, when for a few hours it went back to nine, but by midnight it again reached ten, after which, however, the weather began to moderate until by the early hours of December 2d it had fallen to four. Thus for a period of over three days it was blowing at between fifty and sixty miles an hour — between a "strong" and a "whole" gale. The ship was blown about 160 miles south of her course, and three times had to get back on the original great circle, which apparently she did; her normal run of about 230 miles a day was cut to eighty, sixty and forty-four. One life-boat was crushed, and a good deal of the steel superstructure was twisted, broken or carried away. We need not resort to the somewhat rhetorical description of this storm by the officers to believe that it was one of unusual severity. True, it was no more than was to be expected in those waters at that time; but in some waters at some seasons, even hurricanes are not infrequent. Although this was not a hurricane, it was bad enough to damage the gear and superstructure of a seaworthy ship. The phrase, "perils of the sea", has at times been treated as though its meaning were esoteric: Judge Hough's vivid language in The Rosalia, 2 Cir., 264 F. 285, 288, has perhaps given currency to the notion. That meant nothing more, however, than that the weather encountered must be too much for a well-found vessel to withstand. Duche v. Brocklebank, 2 Cir., 40 F.2d 418. The standard of seaworthiness, like so many other legal standards, must always be uncertain, for the law cannot fix in advance those precautions in hull and gear which will be necessary to meet the manifold dangers of the sea. That Judge Hough meant no more than this in The Rosalia, supra, is shown by his reference to the definition in The Warren Adams, 2 Cir., 74 F. 413, 415, as the equivalent of what he said. That definition was as follows: "That term may be defined as denoting `all marine casualties resulting from the violent action of the elements, as distinguished from their natural, silent influence.'" It would be too much to hope that The Rosalia, supra, will not continue to be cited for more than this, but it would be gratifying if it were not.

The libellants say, however, that the ship was not well-found, particularly as to the tarpaulins on hatches one and two. There were four on each — an American tarpaulin being put on the outside to act as a protection, or "chafer". The testimony as to the quality and condition of these was in conflict, as in the case of nearly all the issues; but the judge heard all of the witnesses except the officers and crew, and found that the tarpaulins were fit and sound. There is certainly no such overriding balance of proof against this finding as would justify our reversing it. The fact that one of the American tarpaulins tore does not mean that it was rotten or outworn; the force of the seas may well have been such as to make any tarpaulin yield. To meet this the libellants rely upon the testimony of one of the ship's own witnesses, Narbeth, as to a declaration made to him by the chief officer, soon after the ship docked at Philadelphia. It was known at that time that the cargo might be damaged (the ship had by cable reported that possibility before reaching port) and in explanation the officer said that after the weather had moderated enough on December 2d, the master had sent forward some of the crew to repair the damage to the tarpaulins, which it had been impossible to do before, because she had been shipping seas all the time. While they were at work with the tarpaulins off, she took aboard another sea which went through the hatches. Narbeth...