Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The appellee shipped its cargo of radio receiving sets and equipment on the steamship J. L. Luckenbach, which sailed from Boston in September, 1929, for San Francisco, Cal. The cargo in question was loaded at Philadelphia in No. 8 shelter deck, filling it up, and the hatches were battened down on the morning of September 15, and the vessel sailed that day. She called at New York, and, after taking on more cargo, none of which was stowed in No. 8 shelter deck, sailed for the West Coast on September 18th. While the vessel was in Boston, she made repairs and there was some chipping and scraping of the paint work in the cargo compartments preparatory to repainting.
When the ship arrived at San Francisco, it was ascertained that a lead pipe in the aftermost part of No. 8 shelter deck, at the extreme stern of the vessel, had been punctured. This pipe was the discharge conduit from the firemen's toilet and shower room, located on the port side of the weather deck directly above the after part of No. 8 shelter deck. The pipe came down through the weather deck into the No. 8 shelter deck space and then it turned outward under the deck head to the side of the vessel, where it followed the ship's skin downward behind the cargo battens for several feet and then made another turn through the ship's side, discharging through a non-return valve fitted to the hull plating. It was found that the hole had been punched through the lead pipe by a member of the crew in an attempt to clear it from obstructions which had accumulated there in a way to stop the flow of water from the toilets. Nos. 7 and 8 shelter decks were fitted with two scuppers located in the port and starboard corners forward. Investigation made later, while the vessel was making her Puget Sound ports, showed that the scuppers were clogged with paint scrapings and other debris which produced an accumulation of water in the cargo compartments a foot and a half deep.
The after part of No. 8 shelter deck is separated into a special cargo locker by means of a slat bulkhead which consisted of planks about six or seven inches wide with one-inch space between them secured to the beam overhead and at the bottom to an angle bar riveted to the deck. The angle bar was six inches high with a three-inch flange to the deck and tightly fitted between the face angle of the two frames on each side of the vessel and in the wings where it was made watertight by cement. Thus constructed, it formed a dam six inches high and acted as a watertight obstruction preventing any water which accumulated in the after part of the shelter deck from finding its way to the scuppers until it had reached a sufficient depth to overflow the angle bar and then flow to the scuppers in the forward wings. The No. 8 shelter deck is cambered toward the sides which would permit less accumulation of water than if it had been level, but, with its measurements as they were given, the accumulation would extend inboard from the side of the ship a distance of 16 feet and a like distance aft. This accumulation would flow over the angle bar into the cargo forward as the vessel pitched. Such an accumulation of water, occurring in the manner described, would cause damage to the lower tiers of cargo stored in this special cargo locker.
The commissioner found that the absence of limber holes in the angle bar made it possible for water to be dammed up behind the bar; that it was improper to have the angle bar built in as described in the shelter deck unless it was provided with limber holes to secure adequate drainage of the water. There is ample evidence to support this finding and liability therefore follows. The Willdomino, 300 F. 5 (C.C.A. 3); May v. Hamburg, etc., Line, 63 F.2d 248 (C.C.A. 2); Hartford & N.Y. Transp. Co. v. Rogers & Hubbard Co., 47 F.2d 189 (C.C.A. 2); The Waalhaven, 36 F.2d 706 (C.C.A. 2); Secv. of State v. Dreyfus & Co., 8 Lloyd's List Law Reports, 92; Micks Lambert & Co. v. U.S.S. Bd., 16 Lloyd's List Law Reports, 277.
The scuppers were three-inch pipes located in the forward wings of Nos. 7 and 8 shelter decks, and the commissioner found that they were clogged up in such a way as to prevent drainage of the water and cause it to accumulate in both compartments to a depth varying from a foot to a foot and a half. There was contrary testimony to the effect that they were clear and offered free drainage at the commencement of the voyage and it is said that at least due diligence was exercised in testing their drainage prior to loading cargo. The scupper pipes lead downward from the shelter deck following the curvature of the ship's side and then inboard to the shaft tunnel where they were fitted to another long pipe which ran some 90 feet forward to the engine room tank tops. The entire distance was between 110 and 120 feet. The tests claimed to have been made consisted of pouring a bucket of water through the opening in the shelter deck but no one stood at the opening of the line under the engine room floor to see if the water flowed freely. An adequate test would have been the use of a hose in forcing the water through. There was ample evidence to support the findings that the scuppers were clogged before the cargo was loaded in Boston and that due dilegence was not exercised. It was found that the workmen, who chipped and scraped the old paint in Boston, failed to remove paint chippings thoroughly, and that this and other debris from the preceding voyage caused the clogging. There was very considerable accumulation of such paint peelings on the deck in the cargo compartments after the surfaces had been cleaned and scraped and this sufficiently explains the cause of the stoppage in the scuppers.
The scuppers were placed in the cargo compartment to care for any accumulation of water for the purpose of draining it off before it reached a depth equal to that of the dunnage in the compartment and before it came in contact with the cargo. They were intended for more than mere drainage of the ship's sweat. Scuppers were intended to take away any water entering the vessel at least up to their capacity whether such water came from leaks, sweat, broken pipes, or whatever source. The findings below that the scuppers were clogged before the ship sailed and that due diligence was not exercised were sufficiently supported by the evidence. It was the duty of the shipowner, in providing a cargo-worthy vessel, to make it fit for the car go carriage undertaken. The Southwark, 191 U.S. 1, 24 S. Ct. 1, 48 L. Ed. 65; The Edw. I. Morrison, 153 U.S. 199, 215, 14 S. Ct. 823, 38 L. Ed. 688; The Thomas P. Beal, 11 F.2d 49 (C.C.A. 3).
The commissioner found that the damage to the soil pipe was due to an act of negligence of a seaman occurring after the ship left port -- an error of management -- and that section 3 of the Harter Act (46 USCA § 192) exempted the vessel from liability for damage resulting from such fault or error. If the hole was there before the voyage, it would be a breach of warranty of seaworthiness. The Newport, 7 F.2d 452 (C.C.A. 9); The Manitou, 127 F. 554 (C.C.A. 2). If it occurred after the commencement of the voyage, it is an error of management. Kalbfleisch Corp. v. United States (D.C.) 53 F.2d 867; The Touraine, 29 Lloyds List Law Reports, 265. We agree with the finding below that the damage to the soil pipe was caused after the sailing of the vessel and that it constituted an error of management and no liability may be predicated on this act.
The bill of lading contained the following provision:
"22. Shall make all claims for damage to cargo, misdelivery or delay in delivery thereof, or shortage of packages or portions of packages of the herein described cargo, fully disclosing the nature and extent thereof in the presence of the captain and/or agent of this company and/or the delivering carrier at destination before the cargo is removed from the carrier's custody or final receipts signed. Unless written demand for payment of claims for damage, misdelivery or delay in delivery, or shortage of portions of packages of the herein described cargo shall be made upon the carrier liable therefor, or upon the carrier that actually delivered the goods, within ten (10) days after delivery, all claims for damage of whatsoever nature and extent shall be taken to have been waived. * * *"
Upon arrival, appellant's surveyor made an extensive examination of the damaged cargo on the dock at San Francisco and tried to estimate the extent and amount of the damage. Some of the cargo was removed from appellant's custody on October 9, 1929, and the balance on October 10, 1929. A receipt for each was signed on each day -- on October 9th at 10:30 a.m. and on October 10th, at 2:30 p.m. Appellee's officer sent a letter dated October 9th stating, "we hereby make formal claim upon you for the damage, amount to be determined later." The letter was mailed at San Francisco. The officer of the appellee testified that mail which he dictated was always mailed the same day as written, and he remembered this letter because of its importance.Although he did not personally deposit the letter in the mail box, he gave it to the mail clerk. The mail clerk was not called, but the proof sufficiently supports the finding that the letter was mailed October 9th, and received in the regular course of the mails on October 10th, before the last receipt for delivery of the goods was signed. This letter was answered October 12th, and we think it was timely to satisfy the notice clause.
The question is presented whether there was compliance with the requirement of the notice of claim "that all claims for damage * * * fully disclosing the nature and extent thereof in the presence of the captain and/or agent of this company and/or the delivering carrier at destination" should be made before removal of the cargo. The letter of October 9th did not state the damage, but merely said the cargo was more or less damaged and that details would be sent when ascertained. It was found below that, under the circumstances, the appellant knew the nature of the damage because its surveyor attempted to make an estimate of the damage, and, although no agreement was reached as to its extent, appellant approved the return of the goods to the factory for repairs. Since there was sufficient compliance with the requirement of the full disclosure of the nature and extent of the damage, we need not inquire whether or not this provision of the notice clause was unreasonable. Notice clauses containing ...