The opinion of the court was delivered by: BYERS
This cause involves damage to cargo, 2,000 cases of olive oil laden on the steamship Kawsar which sailed from Suez on July 29, 1941, bound for New York via the Cape of Good Hope. There were two shipments of 1,000 cases each, containing two 5-gallon tins to a case, and stowage was in lower hold No. 3 except as to about 45 cases which seem to have been carried in No. 3 'tween deck, although the stowage plan does not so disclose, and this aspect of the case is somewhat nebulous.
The ship arrived in New York on October 6, 1941, and when the hatchway was opened into lower hold No. 3, nine feet of water was discovered flooding the entire space and covering the olive oil shipments and also one layer or tier of cotton bales resting on top of the oil, separated therefrom by dunnage.
On the outturn many of the wooden cases were found to be broken, and many of the tins were leaking as the result of the opening of their seams; and some of the tins contained no oil whatever but were filled with dirty water, and others were filled partly with olive oil and partly with such water.
The evidence is not in substantial dispute as to the conditions existing wheh discharge was undertaken, but conflicting opinions were offered as to the effect of the presence of water upon the cases and tins as observed by those who were called in to survey the cargo at the time of discharge.
The evidence yields the following:
1. The libelant, Pompeian Olive Oil Corporation, is a Maryland corporation having its principal place of business in the City of Baltimore, Maryland, and was the owner of 2,000 cases containing two 5-gallon tins each of olive oil, laden on the steamship Kawsar at Suez on or about July 27, 1941,
2. The steamship Kawsar was a general ship of Egyptian registry, engaged in the common carriage of merchandise, and had six cargo holds. She is subject to the jurisdiction of this court.
3. Said 2,000 cases of olive oil consisted of two equal shipments of 1,000 cases each, known as the Ergas shipment and the A.R.B. & Co. shipment, respectively.
4. Said 2,000 cases were stowed in the bottom of lower hold No. 3, rising to a height of six or seven feet, except as to 45 cases which were stowed in the 'tween deck space above the said lower hold No. 3.
5. As to the Ergas shipment, a receipt on board in good order and condition is shown, but the receipt contains the following: "Some cases of oil stained by contents, some cases broken and repaired and some tins leaking and soldered and not responsible for contents. Some cases empty and some cases of oil have (sic) empty."
6. As to the A.R.B. Co. shipment, a similar receipt contains the following: "Some cases of oil stained by contents, some cases broken and repaired and some tins leaking and soldered and not responsible for contents. Some tins of oil empty and some have (sic) empty."
7. The libelant received documents entitled "Through Bill of Lading" issued by W.F. Henry Van Der Zee & Co. dated at Izmir May 29 and May 31, 1941, respectively, the Ergas one for 1,000 cases "Refined Pure Olive Oil", and the A.R.B. Co. one for 1,000 cases "said to contain two tins each Refined Olive Oil", which documents contained ...