William A. Higgins & Co. v. Anglo-Algerian S.S. Co.

• Decision Date: 30 June 1915
• Citation: 242 F. 568
• Parties: WILLIAM A. HIGGINS & CO. v. ANGLO-ALGERIAN S.S. CO.
• Court: U.S. District Court — Southern District of New York

242 F. 568

WILLIAM A. HIGGINS & CO. v. ANGLO-ALGERIAN S.S. CO.

United States District Court, S.D. New York.

June 30, 1915

This is a libel in personam by the assignee of a bill of lading for damage done to part of a cargo of dates shipped on board the steamship Armiston from Bussorah, Persia, for New York during the first days of November, 1911. The steamer lay in the Bussorah Roads, and the dates were brought alongside in lighters, wrapped in oil paper and packed in wooden cases made of three-eighths inch boards. While the loading was going on, heavy tropical rains fell on Bussorah for several nights, drenching the lighters and wetting some of the dates so much that the master refused to take them and sent the lighters back. Some 25,000 cases, nevertheless, were shipped among which were the 3,000 afterwards sold to the libelant. When they came over the side, the mate gave receipts, and in every case noted upon the receipt that the cases were stained by their own contents or were discolored, or the equivalent. Whether the cases were actually wet by the rain on the lighters does not appear from the testimony of the ship's crew.

When the loading was complete, the ship's agent, at the request of the shippers, gave them a 'clean' bill of lading, which read, 'Apparently in good order and condition. ' In the fine printed portion of the bill of lading, however, there appeared this clause: 'Mate's receipts to be conclusive evidence of the quantity of and condition in which goods are received by this company from river steamers and craft. ' In order to procure this 'clean' bill, the shippers gave to the ship's agents at Bussorah a contract of indemnity holding them harmless for all consequences arising therefrom.

When the dates arrived in New York, they were placed upon the pier, and it was there found that out of 3,000 cases about 2,000 had been damaged. Of these 2,000 the casings of 440 were stripped, and it was finally ascertained that some water damage had happened to about 500 in all; but whether the damage was from salt or fresh water is in dispute. More than 1,000 of the cases were removed by the libelant without notice of damage, the bill of lading containing a provision that such removal should be a waiver of all claims.

The master, carpenter, and the mate of the Armiston were examined, and testified without contradiction that the hatches were closed during the heavy rains at Bussorah, and that they had examined the holds and found them clean and dry before the loading began. At Muscat more cargo was taken in fine weather, and the ship had no trouble till she passed Gibraltar. In the Atlantic she experienced unusually heavy weather even for December, and for some days labored heavily and took on board large sea; but no hatches were broken open and there was no evidence of damage to the cargo. The weather was very cold, and when the hatches were opened in New York it transpired that the holds had sweat, but the sweat did not appear to be enough to cause the damage to the dates although some cargo was damaged in each of the holds except No. 3.

James A. Martin, of New York City, for libelant.

John M Woolsey, of New York City, for respondent.

LEARNED HAND, District Judge (after stating the facts as above).

In spite of the very reasonable skepticism with which courts regard the proof of a ship's crew in such cases as this, there is no just reason to disregard their testimony, which stands quite unimpeached and which is not contradicted by any inferences necessarily to be made from the evidence touching the dates before they came aboard. Whether they got wet in the lighters while alongside, or whether they were wet before the lighters got them, does not appear; but that they were damaged is certainly the case, and that they were damaged by the rain is certainly favored by all the probabilities. Upon the issue of whether they were wet by salt water I find against the libelant; that is, if they were wet by salt water I think it was not on the ship. The only reason to suspect salt water is that Kemp found a salt reaction by nitrate of silver, but a trace would be enough for that, and salt may grow in the dates or it may get on them in the lighters. All the other witnesses say that the damage was not from salt water, and Kemp was not very certain upon cross-examination. Therefore I find that the dates were not injured by sea water while on the ship.

The only other possible water damage which could have reached them is from the sweat of the holds, but the libelant lays little stress upon this. That the holds did sweat is true enough, and some of the water may have fallen on the cargo but it is hard to see why, if this was the cause, the Muscat dates should all have come off uninjured, while the Bussorah dates which came aboard discolored and after exposure to foul weather should be injured. Certainty is perhaps not possible, but the likelihood is very strong that the damage did not happen from sweat. I therefore find that the damage...