Gulden v. Hijos De Jose Taya S. En C.

LEARNED HAND, District Judge

(after stating the facts as above). [ 1 ] The appellant’s first point is that the libelants have not shown that the cargo was shipped in good condition. The bill of lading recites that they were received “in apparent good order and condition,” and there is no qualification to this admission, except that the ship shall not be “responsible * * * for the contents of the parcels.” The appellant contends that under The Lyra (D. C.) 231 Fed. 250 , and Vanderbilt v. Ocean S. S. Co., 215 Fed. 886 , 132 C. C. A. 226 , this qualification of the admission makes the libelants’ proof insufficient. We do not agree. In both these cases, as in The Ismaele (D. C.) 14 Fed. 491 , and Henderson v. 300 Tons of Iron Ore (D. C.) 38 Fed. 36 , the qualifying language was “weight unknown,” or “weight and contents unknown.” The phrase “not responsible for contents” is not an equivalent.. It affects to relieve the ship for the cpndition of the contents; but the contents are not here in question, at least not its condition at the time of shipment. The material question is of the condition of the hogsheads themselves, since the proof makes it clear that the condition of the contents resulted from the injury to them, and, if they were sound when shipped, so were the contents. *579 Admitting that the hogsheads were apparently in good order, the condition of the contents at that time necessarily followed. The exception touching the contents did not qualify that admission at all, assuming, indeed, that it qualified the existing quality of the contents in any event.

[2] The case therefore turns simply upon whether the libelants succeeded in proving bad stowage. That is a question on which we are not disposed to disturb the ruling of the District Judge, who saw the three witnesses concerned. It is true that the two witnesses for the libelant did not go down into the hold; but they saw the cargo from the deck before it was discharged, and they testify absolutely that some of the bungs were not upright, which is conceded by both sides to be bad stowage, and the only thing in contradiction is the certificate of the port warden, upon which we think the District Judge propgrly laid small weight, and the testimony of Deisegang, whose recollection was obviously uncertain, and whose testimony we do not feel to be wholly unambiguous, even if taken literally.

The main strength of the respondent’s position really lies in the fact that so few of the casks were injured; but, while the stowage of casks with bungs at an angle to the perpendicular was improper, we cannot say that it inevitably involved a crushing in of the staves whenever it is practiced. Whether these hogsheads were of unusual strength, or whether it is only in a small percentage of cases that bad stowage will result in breakage, we do not know. There is no evidence in the case which would excuse the respondent, upon the theory that bad stowage must have resulted in a higher percentage of injury. Moreover, although the witnesses for the libelants do say that many of the casks were improperly stowed, they do not profess to give the number. Out of the 600 we have no means of knowing whether 20 per cent., or more or less, were badly stowed.

Seeing no reason to disturb the finding of the District Judge on this question of fact, we think the decree should be affirmed.

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