Edwin I. Morrison Bradley Fertilizer Company v. Lavender

This was a libel by the Bradley Fertilizer Company against the schooner Edwn I. Morrison for damages to cargo. The district court rendered a decree in favor of libelant. to the circuit court, the decree was reversed, and the libel dismissed. 40 Fed. 501. The cause is now brought by appeal to this court.

This was a libel filed by the Bradley Fertilizer Company in the district court of the United States for the southern district of New York against the schooner Edwin I. Morrison to recover for the damage done to a cargo of guano by sea water taken aboard on January 10, 1884, on her voyage from Weymouth, Mass., to Savannah, Ga. The libel set up the charter, the loading, the bills of lading, the sailing from Weymouth, the arrival at Savannah, and the delivery of the cargo in a damaged condition; and also alleged that the schooner, when she left Weymouth and before, 'was not tight, stanch, strong, and every was fitted for said voyage as agreed;' 'and that the cap was gone from off the bilge-pump hole on the port side of said schooner, or was then so loosely, insecurely, and negligently fastened and screwed that the same worked and came off without any danger of the sea intervening, whereby said vessel was unseaworthy and unfit for said voyage, or, after leaving port, said cap was ren oved, and not properly and securely replaced and screwed down, or was negligently and improperly loosened and left insecure by those in charge of said schooner, so that by the unseaworthiness of said schooner, or by the negligence and improper navigation of those in charge of her, said cap came off from said pump hole without any danger of the sea,' and that about seven feet of water was admitted through it into the hold and upon the cargo.

The answer admitted the charter, shipment, bills of lading, sailing, arrival, and delivery of the cargo in a damaged condition, and in excuse thereof alleged: 'That on said voyage the said vessel encountered very rough and tempestuous weather, in consequence of which she shipped large quantities of water, and was greatly damaged by the seas, and it was found on the arrival of the said vessel at Savannah that her said cargo, or a portion thereof, was damaged by the said perils of the seas encountered on the said voyage, or from causes excepted in the said contract or contracts of affreightment.'

The district court found that nine-tenths of the damage to the cargo was occasioned by sea water taken in through the bilge-pump hole on the port side, and that the vessel was not seaworthy in respect of the proper security of this port cap and plate, and rendered a decree in favor of libelant. The opinion is reported in 27 Fed. 136.

The schooner sailed on the 5th of January, and, according to the log, on the afternoon of January 9 met a very strong gale and heavy seas, and shipped great quantities of water. The log of January 10 read as follows:

'This day begins with a strong westerly gale and sea still running very high. At 8 a. m., set two-reefed foresail; set storm-try-sail, and hove vessel to, heading about south; find that the vessel is making water faster than we can pump it out with both pumps, the men not being able to work at pumping steadily because of heavy seas sweeping her decks.

'(Note. The words in italics are inserted on margin of log in lead pencil.)

'Sounded pumps and find that she has 7 ft. of water in the hold.

'(Note. The figure 7 is written over an erasure.)

'Cut the boat lashings and got all ready to leave the vessel, when found that the cap had washed off the bilge-pump hole on the port side; nailed a piece of sheet lead over it, and started both pumps agoing; pumped two hours, and sound again, and find that we are freeing her very rapidly. So ends this day. No latitude; no longitude.'

The bilge-pump hole referred to in the above extract was a hole in the port side in the waterway, a short distance only in front of the poop, and ran down through the waterway between the ceiling and the skin of the ship. It was from three to four inches in diameter, and covered by a brass plate about four inches square, countersunk into the timber, through which was a hole, covered by a brass cap, which screwed into the plate, and the plate was fastened into the waterway by screws. There was a similar hole on the starboard side. The district judge was of opinion that these holes, which had never been used, were dangerous unless the caps and plates to cover them were kept perfectly tight and secure; that 'the obligation to keep watch of their condition was as stringent as the danger from weakness in them was extreme;' and that there was no satisfactory evidence that there had been more than a casual examination of them since the schooner was built, some 11 years previous.

The theory of the defense was that the plate and cap were perfectly tight, but that, through the many seas taken aboard, they were knocked off by accident or by some blow from floating articles. The district judge held that this was possible, but, for reasons which he gave, that its probability was exceedingly small; and that, even if it could be supposed that the plate had been knocked off through the blow of some object washed across the deck, it would still be incumbent on the claimant to show that the cap and plate were so made and fastened as not to be knocked off by ordinary collisions of that kind, which had not been done; that, while there could be scarcely any doubt that the cap and plate were carried off through the action of the sea, yet that the evidence indicated clearly that this was done before the vessel was subjected to any extraordinary conditions, aside from her deep loading, and that there was no indication of any such violence about the woodwork in that quarter as would be necessary to knock away such a cap, if properly secured; and that the only reasonable conclusion was that, after 11 years' service, the fastenings had become weak, and that the plate had been carried away from that cause, and not from any extraordinary contingencies.

The case having been taken to the circuit court, the testimony of one Candage, an expert, was given to the effect that these bilgepump plates in the waterways were regarded as permanent fixtures, not requiring to be removed for examination; that, by taking hold of the cap, one could judge of the firmness of the plate; that he had sometimes unscrewed the cap, but usually could judge of condition by the eye; that, by unscrewing, one could judge of the condition of the wood slightly better; that he never thought it necessary to unscrew the plate. which, if done frequently, would have a tendency to weaken the fastenings; that if the plate of the Morrison had been there for 10 or 11 years, and never removed, and had been painted over from time to time with the ways, no examination was necessary other than by the eye; that he would say, as matter of opinion, there would be no gradual weakening of the fastenings of the plate; that, upon the details stated in a hypothetical question, it was his opinion that the loss of the bilgepump plate was attributable to the fact that some hard substance had been dashed against it by the force of the waves and the rolling of the vessel, though the force of the water alone could not have ripped it out and carried it away. The circuit judge was of opinion (40 Fed. 501) that 'the vessel was not originally unseaworthy because she had bilge-pump holes covered as these were. The presumption of continuing seaworthiness in respect to this part of the ship is not rebutted by the single fact that no special test was made as to their condition, in view of the testimony (especially that taken in this court) as to what is the usual examination given to such structures.' And he concluded that the inference to be drawn from the testimony was 'that there was no defect, patent or latent; that the fastenings were sufficient, and were knocked out by a blow such as could not reasonably have been anticipated, and which was caused by a danger of the sea.'

The circuit court made its findings of fact and conclusions of law, which are given in the margin (and to which, in whole or in part, and to certain refusals to find, libelant filed 27 exceptions), and rendered a decree reversing the decree of the district court and dismissing the libel, with costs, whereupon the cause was brought by appeal to this court.

George A. Black, for appellant.

Geo. Bethune Adams, for appellees.

I. The findings of the Ciruit court are conclusive as to the facts.

[Argument of Counsel from pages 207-209 intentionally omitted]

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.