Toyo Kisen Kabushiki Kaisha v. Willits & Co.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 17 F.2d 762 |
| Docket Number | No. 4906.,4906. |
| Parties | TOYO KISEN KABUSHIKI KAISHA v. WILLITS & CO., Inc., et al. |
| Decision Date | 14 February 1927 |
Thomas B. Dozier, C. F. Kimball, Thomas B. Dozier, Jr., and Dozier, Kimball & Dozier, all of San Francisco, Cal., for appellant.
S. Hasket Derby, Joseph C. Sharp, and Derby, Single & Sharp, all of San Francisco, Cal., for appellees.
Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.
Decree in this case was for libelants, and the respondent appealed. The proceeding was in personam.
The appellees were the consignees of merchandise which formed a part of the cargo of a ship owned by appellant which arrived in the port of San Francisco in May, 1924. It was found upon discharge of the cargo that the merchandise of appellees had been damaged by seawater. As a secondary cause of damage, it appeared that a lot of arsenic acid belonging to the appellee Pacific Orient Company had, after being wet by the seawater, contributed to contaminate and injure other of the merchandise for which libel was brought. As to the cause and character of the damage, no dispute arises in the case. It was claimed for the ship that it was seaworthy in all respects, and that no reasonable precaution had been neglected to keep it so during the voyage.
Not only was it undisputed that seawater produced the damage, but it was unquestioned that the water gained ingress through two holes in the side of the ship, which were there placed to receive bolts used to make fast to the steel sides, or "skin," of the ship certain baffle plates. These plates were not a part of the protective sides of the ship, but were raised plates covering apertures through which waste water from toilet rooms was discharged. Their purpose was to turn the course of such water and prevent it from being projected outward. These plates were located at different heights above the water line. The bolts fastening the plates to the ship were about four inches in length, and there were eight in number to each plate. They were threaded, as were also the holes in the steel shell of the ship through which they were screwed.
The ship had been dry-docked at Yokohama and had there been inspected. According to the testimony of a Japanese ship officer, the baffle plates had been examined and a hose played over them to see that no leaks were present. When the ship arrived in San Francisco, one bolt from each of two plates was missing. The ship stopped at Honolulu and there discharged cargo, which was dry and uninjured by water. The captain in charge on the voyage testified that some rough weather was encountered between Yokohama and Honolulu, and that on the voyage between Honolulu and San Francisco there was more rough weather, causing the ship to roll heavily, and some water came on board. There was no evidence that the stormy weather occurring during two or three days of the trip between Honolulu and San Francisco was of an unusual character, or other than was to be expected in those waters.
It will not be necessary to detail the evidence with great particularity. Conceding that under storm stress the baffle plates might, in connection with the shell of the ship, move or work loose because of the strain, it appears here that all of the bolts that remained in each baffle plate were intact and in good order. Upon the theory of reasonable probabilities, it is logical to conclude that the bolts which left their fastenings were either of improper size when placed in position or were not tightly secured. Where a ship's cargo is damaged by the entry of water through apertures...
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