THE FLORINDA

• Decision Date: 04 March 1929
• Docket Number: No. 187.,187.
• Citation: 31 F.2d 262
• Parties: THE FLORINDA, and three other cases.
• Court: U.S. Court of Appeals — Second Circuit

31 F.2d 262 (1929)

THE FLORINDA, and three other cases.^*

No. 187.

Circuit Court of Appeals, Second Circuit.

March 4, 1929.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (L. De Grove Potter, of New York City, of counsel), for appellant.

Joffe & Joffe, of New York City (Joseph Joffe, of New York City, of counsel), for appellees.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

Upon a finding of unseaworthiness of the ocean carrier's vessel and negligence in the stowage of a cargo of onions, the appellees recovered damages below. The vessel Florinda had a net tonnage of 1,300 tons and was classed 100 A-1 in Lloyds, was about 290 feet long, 42 feet wide, and 20 feet 7 inches deep, having two decks, three cargo holds, and five hatches. The onions were packed in crates and placed in No. 2 lower hold over bags of almonds. An air space of about one foot was left between the 'tween-decks and the top of the stow, and three air shafts of about one foot in width running athwartships and spaced about equidistant fore and aft were left in the stow. Cases of onions were stowed in the No. 2 'tween-decks in the after part over barrels of grapes, stowed two or three tiers high in the forward part of the hold. There were vacant spaces left in the square of the hatch and the forward part of the hold, and a space of about one foot above the stow. Two air shafts were left in the stow, running athwartships at about the forward and after end of the hatch opening. No. 3 'tween-decks was loaded in the same manner, with vacant space in the square of the hatch and similar air shafts at the forward and after ends of the two hatches in this compartment. No onions were loaded in the forward part of the hold. In No 3, the onions were loaded in approximately two-thirds of the compartment over tins of canned goods, and some almonds stowed above them, with an air shaft running from the bottom of the stow to the after end of the hatch. There were also air spaces between the stow and the sides of the ship, provided by permanent battens, and free space of about one foot left between the stow of the onions and the bulkheads in the various compartments. The cases were piled up pyramid fashion to prevent falling out of the stow.

The No. 2 hold extends from the bulkhead to the engine room bulkhead, and has two hatches, equipped with four telescopic ventilators; No. 3 extends from the machinery space to the after end of the vessel, with two hatches equipped with six ventilators. The ventilators were on the main deck and were from 16 to 18 inches in diameter; 'tween-decks they were 9 inches in diameter. There was no finding below that the vessel or the equipment was in any way structurally defective or that she was not well supplied with ventilators. Before the onions were loaded in the vessel, the holds were swept clean; sawdust and dunnage were laid. The vessel had permanent side battens, which prevented the cargo from coming in contact with the sides of the ship, and also provided air space for the ventilation between the side of the ship and the stow. She was not fully loaded, having a freeboard of 6 feet, 9½ inches; her assigned freeboard was 3 feet, 9½ inches.

Leaving Valencia on October 25, 1923, she arrived in New York November 13, 1923. During the voyage she experienced heavy weather, and as a result it was necessary to keep the hatches battened down and covered with tarpaulins much of the time. During part of seven days, the weather permitting, the officers opened some of the hatches. During the entire voyage, the ventilators were left open and kept properly trimmed. There were no leaks in the vessel. When she arrived in port, in discharging the cases of onions, it was observed that some were stained with grape juice, and a part were found to be diseased and condemned by the inspector of the Board of Health.

The bills of lading contained a provision exempting the vessel from leakage, breakage, heat, decay and deterioration of the onions, but the appellees base their right to recover upon the claim of unseaworthiness of the vessel and negligence in stowage. The theory of unseaworthiness of the vessel seems to be that she was not equipped with sufficient ventilators and that she did not have enough freeboard, so that the hatches might be opened during the voyage. There is ample testimony in the record that, during the North Atlantic voyage at this season of the year, even a larger vessel would expect to have her decks a wash and be unable to open her hatches at times. The freeboard of the vessel was in excess of Lloyds' requirements for a winter voyage on the North Atlantic. It would increase during the voyage as coal, water, and supplies were consumed. The credible testimony clearly establishes that she was seaworthy and fit for the...