United States v. CIA. LUZ STEARICA., 12510.

• Decision Date: 24 January 1951
• Docket Number: No. 12510.,12510.
• Citation: 186 F.2d 594
• Parties: UNITED STATES v. CIA. LUZ STEARICA.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F.2d 594 (1951)

UNITED STATES v. CIA. LUZ STEARICA.

No. 12510.

United States Court of Appeals Ninth Circuit.

January 15, 1951.

As Amended January 24, 1951.

J. Charles Dennis, U. S. Atty., Seattle, Wash. (Bogle, Bogle & Gates, Claude E. Wakefield and M. Bayard Crutcher, all of Seattle, Wash., of counsel), for appellant.

Lane Summers, Charles B. Howard and Summers, Bucey & Howard, all of Seattle, Wash., for appellee.

Before HEALY, BONE, and POPE, Circuit Judges.

HEALY, Circuit Judge.

This suit in admiralty against the United States, as owner and operator of the motorship Sweepstakes, involves a claim of damage by sea water to a shipment of flour. The trial court found that 3,087 bags out of a total of 10,500 contained in the shipment were in an extensively damaged condition from sea water when the flour was delivered to appellee as consignee at Rio de Janeiro. The question we shall consider is whether in the condition of the proof this finding is justified.

The parties are agreed that the problem is for determination do novo, the evidence bearing on the point being entirely by deposition or by exhibits. The Ernest H. Meyer, 9 Cir., 84 F.2d 496.

The flour was loaded at New York aboard the Sweepstakes on January 31, 1946, in apparent good order and condition. The Sweepstakes is a Wilmington-type C-2, a modern fully-welded cargo vessel of five holds, with forced-draft ventilation from the top of the king posts, and steel pontoon hatch covers on the weather decks. The testimony is that at the time of loading three tiers of criss-crossed dunnage were laid on the floor of each hold where this and certain other flour was stowed, bottom tiers being laid fore and aft to allow drainage of water into the scuppers. Heavy dunnage paper was laid over this, and over exposed metal and wood, for the protection of the sacks. Cargo battens covered all longitudinals and stringers. The flour was given top stowage for quick discharge as priority cargo, being stowed in Nos. 1, 2, 3, and 4 'tween decks, and No. 4 lower 'tween deck. In addition to appellee's shipment, the flour cargo included 13,357 sacks consigned to others.

There was no rain during loading. The vessel's chief officer testified that on January 31, at which time less than 2,000 bags of the flour had been loaded, he inspected all the hatches, examining each hold personally. Everything appeared in good order, and he found no indication of moisture or dampness or water in the hatches. When the loading was completed the vessel's weather hatches were battened down, three new tarpaulins, each inspected and found without tears or defects, were laid properly over each hatch cover and fastened with strongbacks, and ventilation blowers were put in operation. Captain Lane, master of the Sweepstakes, described the weather experienced during the voyage to Rio as "quiet, moderate breeze, moderate seas." Nothing appears in the log to contradict this characterization of the trip. The ship was light-loaded, about two feet above her marks. The only port of call en route was Trinidad, where the vessel discharged mail from the No. 5 hatch, took bunkers, and shortly departed. The hatches containing the flour were not opened.¹

The vessel arrived at Rio February 19 and the following day she docked at a deepwater berth. Discharge of the cargo commenced on February 21. While the log indicates that the unloading of all Rio cargo was completed on the morning of the 25th, it definitely appears that the unloading of the flour was completed on the 23d. There were occasional rains during unloading, but as required by customs and is in accord with general practice the work was stopped and the hatches covered during these periods. Lighters were not used. The flour destined for appellee and others was discharged under mixed marks and appellee's flour was loaded directly on open flat cars, sometimes referred to as wagons, provided for appellee by the docks administration. There appears to have been no detailed inspection, but it is undisputed that the bags were tallied by customs men, Moore-McCormack tally clerks, and dock tally clerks. So far as the record shows, nobody engaged in the work observed any of the bags to be wet or discolored. The flour, being priority cargo, did not pass through customs, but there is competent and undisputed testimony that observed damage would nevertheless normally be called to the attention of the customs officials and noted by them to avoid future doubts with reference to the duties. Customs' records show no damage of any kind to this shipment.²

Several persons whose testimony was taken saw portions of the flour as it was unloaded from the vessel. Chief Officer Parsons testified that he was on duty when the hatches were opened up and that he "sighted" them and looked at the general condition of the cargo, his purpose being to see if there was any sweat damage. He observed none. During the course of discharge the officer frequently entered the compartments to see if there was any damage. After discharge he made a further inspection to see if any cargo had been overlooked. He observed no water-damaged flour, received no report of any, and saw no evidence of moisture or water in the holds. He testified further that he saw no possibility of the flour having come into contact with salt water during the voyage. The master, too, received no report of any water damage to the cargo. The local claims agent for the Moore-McCormack people, who was on the scene much of the time during the unloading, testified to having no knowledge of any damage to the flour either by water or in other visible form at the time of discharge, and he says that "such damage would have to come to my attention through the records in the customs house register and by verbal advice from stevedores or our own employees." He further thought it "extremely unlikely" that any extensive water damage could have escaped his attention and that of the stevedores, tally clerks and dock and customs personnel.

So much for the evidence bearing on the condition of the consignment as far as observed at the time of its delivery to the consignee. For the discharge of the latter's burden of proving damage existent as of that time, it relies, as it must, on an inspection and tests made after the flour had reached its premises in a manner now to be stated.

As already observed, all the flour was off the ship by the night of February 23. It was to be taken by rail in the flat cars direct to consignee's warehouse or mill in Rio, some 1800 meters (a...