THE NORTE

• Citation: 1947 AMC 381,69 F. Supp. 881
• Decision Date: 10 February 1947
• Docket Number: No. 21 of 1945.,21 of 1945.
• Parties: THE NORTE.
• Court: U.S. District Court — Western District of Pennsylvania

69 F. Supp. 881

1947 AMC 381

THE NORTE.

No. 21 of 1945.

District Court, E. D. Pennsylvania.

February 10, 1947.

Krusen, Evans and Shaw, by Thomas E. Byrne, Jr., all of Philadelphia, Pa., and Hill, Rivkins & Middleton, by Arthur O. Louis, all of New York City, for libellant.

Rawle & Henderson, by Harrison G. Kildare, all of Philadelphia, Pa., for claimant-respondent.

KALODNER, Circuit Judge.

This libel arises out of the discharge in a damaged condition of part of a shipment of tartaric acid powder transported aboard the steamship "Norte" from Barcelona, Spain, to Philadelphia, the port of discharge. The responsibility for the alleged damage is the ultimate issue, and attending it is the question common to cargo damage actions, the propriety of the handling, stowing, carrying, keeping and caring for the cargo, but here, the claimant-respondent also raises a question relating to the existence of damage for which recovery may be had.

The cause having been heard by the Court without a jury, on the basis of the pleadings and the evidence, I make the following

Findings of Fact.

1. At all material times, Emerson Drug Company, the libellant herein, was a Maryland corporation, and was the owner of the tartaric acid powder involved in this action.

2. At all material times, the steamship "Norte" was a general ship engaged in the common carriage of merchandise upon the high seas for hire between ports in Spain and the port of Philadelphia.

3. At all material times, claimant-respondent Domingo Mumbru was and is a citizen and resident of Spain and owned, operated, managed and controlled the steamship "Norte."

4. The "Norte" is a vessel of Spanish registry, 321'1" in length, 39'4" in beam and 25'7" in depth. It was built in 1893. In 1943-44 a tweendeck was constructed in the No. 1 hold. Steel tanks constituted the floor of the No. 1 hold.

5. On November 16, 1944, at Barcelona Spain, La Productora de Borax y Articulos Quimicos S. A. delivered to the steamship "Norte" and claimant-respondent 250 casks of tartaric acid powder to be transported to Philadelphia.

6. The tartaric acid powder was packed in wooden barrels or casks about 3 feet high and 1½ to 2 feet in circumference at the widest point. Each cask had a double paper lining. Each cask contained 224 pounds of tartaric acid powder.

7. The casks of tartaric acid powder were in apparent good order and condition when received aboard the "Norte". No notations or exceptions were made on the bill of lading.

8. The casks of tartaric acid powder were stowed at the extreme forward end in lower No. 1 hold, athwartships, in two rows, two tiers high. The casks in the bottom tier were upright, some resting on dunnage over the floor, or tank top, of the hold; those in the second tier were laid on their sides over dunnage. Tartaric acid powder is dry cargo.

9. Above the casks of tartaric acid powder were cases of cigarette paper, bags of briar wood and bags of almonds, in that order upwards.

10. Aft of the casks of tartaric acid powder were 1012 barrels of olives in brine going across the hold and from the aft bulkhead forward to about midway under the hatch, and rising eight or nine tiers high. Under the bottom tier, there was sawdust about one inch thick and each barrel in that tier rested on chocks at the quarters. Between each tier there was a double layer of dunnage and each barrel in the upper tiers also rested on chocks at the quarters over the dunnage. Olives in brine are wet cargo.

11. Between the casks of tartaric acid powder and the barrels of olives there was a wall of baled cork, about 30 inches in thickness, running athwartship.

12. After loading the tartaric acid powder at Barcelona, the "Norte" proceeded to Tarragona, Alicante, Malaga, Centa, Cadiz, Seville and then to Cadiz again. The "Norte" departed Cadiz for Philadelphia on December 22, 1944; she arrived at Overfalls Light on January 14, 1945, took on a pilot and moved to Richmond on the Delaware River, where she was anchored until January 29, 1945, when she was berthed at Philadelphia.

13. On December 31, 1944, the sea reached force 8 on the Beaufort scale; on January 1, 1945, the wind force was 8 and 9, and the sea 7 and 8. On the latter day the steering gear broke down necessitating use of the hand steering gear for about five hours. On January 2, 1945, the wind and sea force was 6; on January 6, 1945, wind force 6 and 7, sea force 5 and 6; on January 9, 1945, wind force was 8 and sea force 7, both decreasing to 3. On January 11, 1945, the steering chain broke again and was out of operation for two and one-half hours; wind and sea force was 5. The weather and the breaking of the steering chain caused the ship to roll and pitch heavily.

14. The "Norte" had two ventilators with 10 inch shafts at the forward port and starboard corners of hold No. 1, and one ventilator aft which did not service the lower hold and was kept closed because of the deck cargo. During the voyage from Cadiz to Philadelphia, only one of the forward ventilators was fitted with a cowl which was kept trimmed into the wind; the other forward ventilator, being a stump, was intended to act as an air exhaust for the hold. The ventilators were closed during bad weather. The prevailing winds were westerly and southwesterly, blowing from bow to stern.

15. The forward draft of the "Norte" was 19.6 feet; aft, it was 21 feet. The bilge tanks in No. 1 hold, located along the sides and covered with new limber boards permitting water to run into the bilges from the hold, were connected with the bilge tanks in the No. 2 hold. Water in the bilges was measured twice daily; in No. 1 hold it reached 4 inches and in No. 2 hold, 12 inches during bad weather. Excess water was pumped off.

16. On discharge at Philadelphia, 124 casks of the tartaric acid powder, all from the bottom tier, were found to have been stained. The stains, grey and light green in color, appeared on the ends of the casks, rising up the sides for 2 to 6 inches. The paper lining was stiff and stained and the acid caked in the areas of the stains. The metal hoops at the lower ends of the casks showed rust. 126 casks of tartaric acid powder were discharged in good condition and accepted by the libellant.

17. A joint survey of No. 1 lower hold was held on February 15, 1945. The limber boards, the dunnage then in the hold, and the tank tops were wet with salt water, as were the stained casks of tartaric acid. The salt water came principally from leaking barrels of olives. There was also evidence of pronounced sweat.

18. Wiley and Company, a firm of analytical chemists, was engaged, upon joint agreement of the libellant's and the claimant-respondent's surveyors, and twelve samples of the caked tartaric acid powder from the stained casks were submitted for chemical analysis. Duplicate samples were retained for analysis by the libellant and for the claimant-respondent.

19. The reports of Wiley and Company disclosed that of the twelve samples, sulphates were faintly positive in all; chlorides were faintly positive in nine and clearly positive in three. Sulphates and chlorides were clearly positive as to the stained paper lining in each instance.

The libellant's chemist found excessive moisture, sulphates and chlorides, which were sufficient to warrant rejecting the acid for failure to meet the specifications prescribed in the Pharmacopoeia of the United States, 11th revision.

The claimant-respondent's analyst found sulphates and chlorides, but not to such an extent as to constitute a variation from the standards of the Pharmacopoeia of the United States, 11th and 12th revisions.

20. By joint agreement, the claimant-respondent's surveyor arranged with a New York firm to take the 124 stained casks and to separate the caked from the uncaked acid powder.

21. 20,342 pounds of uncaked acid powder were packed in 91 new casks; 6,797 pounds of caked acid powder were packed in 30 new casks; 637 pounds were lost in the process of separation. Nothing was done to remove any impurities.

22. Claimant-respondent's surveyor took samples of both portions of the tartaric acid powder. The report of the analysis of the sample from the uncaked acid powder was sent to the libellant. Libellant accepted the 91 casks.

23. Claimant-respondent's analyst found that the samples from the 91 casks and from the 30 casks met the official Pharmacopoeia standards and that they were the same as the samples which were duplicates of those submitted to Wiley and Company.

24. By agreement, claimant-respondent's surveyor arranged for the sale of the 30 casks of caked acid powder at the rate of 63 cents per pound, duty paid, or a total of $4,282.11. This acid was not "prime goods" because of its caked condition. A sample of tartaric acid powder was tested at the request of the purchaser by an independent chemist and found to satisfy the specifications of the Pharmacopoeia of the United States, 12th revision.

25. The tartaric acid powder herein involved was purchased by the libellant as meeting the standards of the Pharmacopoeia of the United States, 11th revision, and would have accepted such of the shipment as met the specifications therein stated. The 12th revision of the Pharmacopoeia became official in November, 1942, but any difference between the two revisions is not pertinent here.

26. The market value of tartaric acid powder of the kind and quality herein involved, in good condition, at the date of delivery, was 83 cents per pound, duty paid.

27. The libellant incurred separation expenses in the amount of $1,784.08, and surveyors' expenses, etc., in the amount of $334.87.

Discussion.

Three grounds are asserted by the libellant as a basis for the liability of the claimant-respondent: (1) Improper and faulty stowage, (2) inadequate ventilation, and (3) deviation. Denying these, the claimant-respondent counters with the assertion that there was no damage for which recovery may be had, or alternately,...