Standard Brands v. Thos. & Jno. Brocklebank

• Decision Date: 27 July 1948
• Docket Number: No. 124-46.,124-46.
• Parties: STANDARD BRANDS, Inc. v. THOS. & JNO. BROCKLEBANK, Limited. THE MARKHOR.
• Court: U.S. District Court — Southern District of New York

81 F. Supp. 670

STANDARD BRANDS, Inc. v. THOS. & JNO. BROCKLEBANK, Limited THE MARKHOR.

No. 124-46.

United States District Court S. D. New York.

July 27, 1948.

Harry D. Thirkield, of New York City, for libellant.

Lord, Day & Lord, Franklin B. Lord, Jr., and Edmund P. Rogers, all of New York City, for respondents.

BONDY, District Judge.

This suit was brought to recover for loss resulting from ship sweat to a cargo of tea which was received in cases in apparent good order and condition November, 1939 at Calcutta aboard the respondent's steamship Markhor. It was transported by way of the Cape of Good Hope and discharged at Boston in a seriously damaged condition in the early part of January, 1940 after a voyage of about fifty-seven days.

The tea was stowed in tiers in the forward part of No. 2 'tween-deck together with jute and gunnies. The No. 2 hold had four cowl ventilators, rising from twelve to fifteen feet above the deck, two forward and two aft, which led through the weather deck into the 'tween-deck and down to the lower hold, and were from two and one-half to three feet in diameter where they led through the weather deck. It was conceded that throughout the voyage all four ventilators were trimmed with their backs to the wind and the evidence discloses that whenever the weather permitted the hatch covers were raised. For purposes of ventilation, trunkways, openings in the cargo, from eighteen inches to two feet square, led vertically from the corners of the hatches on the weather deck through the 'tween-deck to the lower hold.

During the fifty-seven days of the voyage the ship experienced the usual North Atlantic winter weather. The seaworthiness of the ship and the construction and sufficiency of her ventilators were not questioned.

The libellant contends that the respondent was negligent in stowing the tea with jute and in trimming the ventilators leading through the No. 2 'tween-deck away from the wind from the beginning to the end of the voyage. The respondent urges that keeping the ventilators trimmed back to the wind was proper, that from the start of the voyage and until the vessel left the Gulf Stream the temperatures of the atmosphere and in No. 2 'tween-deck were substantially the same, that after the vessel left the Gulf Stream it became necessary, on account of heavy seas and spray, to keep the hatches battened down and that, notwithstanding all that could done, most of the heavy sweat was caused by a drop in temperature of twenty to thirty degrees upon emerging from the Gulf Stream forty-eight hours or more before arriving at Boston.

The record presents only questions of fact, the law applicable thereto being well settled. Although the bills of lading provided that the shipowner shall not be responsible for damage arising from sweat, such limitation is subject to the provisions of Section 3(8) of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303(8). By Section 4(2) of that Act, 46 U.S.C.A. § 1304(2), it is provided that "neither the carrier nor the ship shall be responsible for loss or damage arising or resulting" from "perils, dangers, and accidents of the sea" or from "any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage." It has been held that sweat is a peril of the sea only when the carrier has not been guilty of negligence in handling the cargo, and the carrier has the burden of proof. Wessels v. The Asturias, 2 Cir., 126 F.2d 999, 1000, affirming The S. S. Asturias, D.C., 40 F.Supp. 168; Eppens, Smith Co. v. Silver Line, 5 Cir., 128 F.2d 882. In Wessels v. The Asturias, supra, Judge Frank stated the rule as follows: "In our view, the carrier remains liable if it fails to provide, without excuse, sufficient ventilation, or if its improper stowage contributes to the sweat, or if it is otherwise negligent in handling the cargo. Sweat, then, can be regarded as a peril of the sea only when all available and reasonable precautions are taken to avoid it."

In the "Report on Homeward Cargo" made by the chief officer of the Markhor on February 17, 1940, it is stated: "Wide range of temperatures experienced-20°-30° within 48 hours of arriving at Boston. During this period the hatches were unable to be opened owing to weather...