THE FERNCLIFF
| Decision Date | 29 March 1938 |
| Docket Number | No. 2155.,2155. |
| Citation | 22 F. Supp. 728 |
| Parties | THE FERNCLIFF. |
| Court | U.S. District Court — District of Maryland |
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George W. P. Whip, of Baltimore, Md., and Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Charles R. Hickox, of New York City, of counsel), for libelant.
George Forbes and Henry L. Wortche, both of Baltimore, Md., and Hunt, Hill & Betts, of New York City (George Whitefield Betts, Jr., of New York City, of counsel), for respondent.
In this admiralty case a libel in rem has been filed by H. J. Baker & Bro., against the motor vessel "Ferncliff" for damage occurring to a very large cargo shipment of fish meal from Japan to Norfolk and Baltimore. The damage is alleged to have been caused by improper stowage. The respondent denies negligence and attributes the damaged condition of the fish meal to its inherent characteristics. The case has been submitted upon voluminous testimony partly by depositions but principally by examination of witnesses in court. On the main facts with regard to the stowage, carriage and discharge of the fish meal, the case is very like The Nichiyo Maru in this court, 14 F.Supp. 727; affirmed on appeal, 4 Cir., 89 F.2d 539 (), in which three Japanese ships carrying fish meal from Japan to Baltimore were held at fault in stowage. Other cases of like nature are The Willfaro, The Willsolo, D.C., 9 F.2d 940, and The Niel Maersk, D.C., 18 F.Supp. 824 () 2 Cir., 91 F.2d 932, certiorari denied Bradley v. The Niel Maersk, 302 U.S. 753, 58 S.Ct. 281, 82 L. Ed. ___, December 6, 1937.
This case must, of course, be decided on its particular facts appearing from the testimony which has taken an even wider range than in the Wellman Cases with respect to the characteristics of fish meal as viewed both scientifically and commercially. It is probable that all presently available knowledge upon the subject has been covered by the testimony in the case. The primary question is one of fact, whether there was negligence in stowage. But in addition this case presents some important questions of law, arising on the provisions of the bills of lading, which were not involved in the Wellman Cases. The important and controlling facts here are as follows.
The libellants are engaged in a large way in the purchase and sale of feed and fertilizer goods, their main office being in New York City with branches in Baltimore and Norfolk. On December 13, 1935, they made a contract with the New York branch of a Japanese corporation, Mitsubishi Shoji Kaisha, Ltd., for the purchase, under c. i. f. contract, of from 4,000 to 5,000 tons of Japanese fish meal for delivery at certain Atlantic ports in the United States, including Norfolk and Baltimore. In the negotiations for making this contract Mitsubishi was represented by the witness Feigenbutz, and Baker & Bro. by the witness Sherry. The ship for carriage of the fish meal was not designated in the contract but the "Ferncliff" was declared by Mitsubishi shortly thereafter. The vessel was loaded at Kobe, Japan, on January 23 to 26, 1936, and a few days later additional cargo was taken on at Hakodate. In all 3,905.2 short tons of fish meal were stowed in the 'tween decks of the ship and in Nos. 2 and 4 lower holds. The other holds of the ship were fully loaded with beet pulp by Mitsubishi, which had chartered the whole ship for the particular voyage (see stowage chart filed by the respondent as Exhibit no number — with Uyeki's deposition). In due course on March 11, 1936, before the arrival of the ship, Mitsubishi tendered to Baker & Bro. an invoice for the whole cargo of fish meal in the total amount of $126,919, accompanied by the bills of lading and other documents; and the amount of the invoice was then paid by Baker & Bro. The bills of lading issued by the ship's master were "order" bills of lading and were endorsed by Mitsubishi. They made no reference to the charter party and no reference to the Harter Act, §§ 1, 5, United States Code, title 46, §§ 190, 194, 46 U.S.C.A. §§ 190, 194.
The vessel sailed from Hakodate on February 5, 1936, and arrived at Tampa, Florida, on March 16, 1936, where she discharged 20,122 bags of fish meal in good condition; and on March 20, 1936, she arrived at Pt. Everglades, Florida, where she likewise discharged 7,982 bags of fish meal in good condition. On March 24, 1936, the vessel arrived at Wilmington, North Carolina, where she discharged 14,000 bags of meal, all substantially undamaged. On March 26, 1936, she arrived at Norfolk where she discharged 20,000 bags of the meal, of which, according to libellants' testimony, 18,252 bags were damaged; and at Baltimore, March 28, 1936, the balance of the cargo of fish meal totalling 15,927 bags were discharged, 14,367 of which were alleged to be damaged. The undamaged portion of the fish meal discharged at Tampa, Florida, Pt. Everglades and Wilmington had been stowed "'tween decks" and in the upper portion of lower holds Nos. 2 and 4. The damaged portion of the fish meal discharged at Norfolk and Baltimore evidently came from the lower part of holds Nos. 2 and 4.
In the course of the trial the libellants submitted affirmative testimony that all the fish meal was delivered to the ship in good merchantable condition in Japan and was fit for export; and in this respect the case differs from that of The Niel Maersk, 2 Cir., 91 F.2d 932. Libellants also submitted testimony to the effect that the meal discharged at Norfolk and Baltimore was damaged to the extent mentioned. The respondent ship then took up the burden of proof to exempt itself from the presumption of negligence in carriage and submitted testimony to show that the damage was much less than that indicated by libellants' testimony; that there had been no negligence in stowage; and that such damage as had occurred was due to the inherent nature of the fish meal when shipped. Some rebuttal testimony was then offered by the libellants. But most of the facts with regard to stowage and discharge are to be found in the respondent's testimony.
From the whole testimony I find as ultimate facts that there was negligence in the stowage of the fish meal and substantial damage as claimed by the libellants on discharge at Norfolk and Baltimore. The "Ferncliff" is a Norwegian motor vessel with length of 381 feet, 6½ inches; beam of 53 feet, 3 inches; depth of 36 feet, 9 inches, gross tonnage 4333.06, net tonnage of 2493.59 and dead weight capacity of 7890. She has four cargo lower holds with five hatches, No. 2 hold being accomodated with two hatches; with a 'tween deck running from stem to stern, making a compartment over each lower hold. No. 2 lower hold is 105 feet long, 51 feet wide and 25 feet deep. None of the fish meal carried 'tween decks was damaged; all the damage occurred in the lower part of lower holds Nos. 2 and 4. No other cargo was carried in these two lower holds. The bags were tiered from the ceiling (bottom) of lower No. 2 hold, on dunnage 26 to 30 bags high to within about 5 feet of the 'tween deck. In all No. 2 lower hold contained 44,833 bags which completely filled the hold with the exception of about five feet air space at the top and 18 inches at the sides and ends of the hold, three aisles of 18 inches athwartship, and a net work of rice ventilators arranged substantially as described in the Wellman Cases.1 A generally similar condition existed in No. 4 hold which, however, was of smaller capacity. In general I find that the relative proportions of cubic contents of fish meal to air space were much the same in the case of the "Ferncliff" as in the case of the three Japanese vessels involved in the Wellman Cases, although the respondent's testimony in this case is to the effect that somewhat greater care was used in this case in the arrangement of the rice ventilators and provision for alleyways of air space. Nevertheless the fundamental fact is the same in both cases, the amount of ventilation being quite inadequate for the amount of fish meal closely stored in the lower holds and particularly the lower portion of the holds. The conclusion on the facts seems to me inescapable that the general plan of stowage was fundamentally wrong in placing such a large quantity of fish meal in these lower holds, and that merely providing rice ventilators as described in the respondent's testimony, was totally inadequate provision for ventilation. The fixed ventilators of the "Ferncliff" emerging on deck, as in the Wellman Cases, were quite adequate for general cargo in the lower holds, but of themselves not sufficient for a cargo of fish meal filling these holds. And the rice ventilators although doubtless somewhat helpful as an auxiliary ventilation were in large part dependent for their operation on the discharge of air through the hatches which often, due to weather conditions, must be kept closed.
In view of the very full discussion of the generally similar conditions in the Wellman Cases, it seems unnecessary to review the testimony in this case in further detail. The conditions are well summarized by Judge Parker on the appeal in those cases, and the applicable law is there stated and applied. I will, however, refer to the principal contentions of counsel for the respondent who again in this case so earnestly contend that negligence in stowage has not been shown. It is insisted that the deterioration of the fish meal during the voyage must have been due to inherent defect existing when delivered to the ship. And in this connection reference is made to the certificate of inspection in Japan which showed that the percentage of moisture content of the several lots of fish meal loaded at Kobe ranged from 8.9 to 10.51, it being contended, based on the testimony of...
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