The opinion of the court was delivered by: GODDARD
These actions were consolidated for the purpose of trial.
Libelants, as owners, shippers and consignees of a cargo of wheat shipped aboard the S.S. General Artigas, sue the ship, her owner, and her charterer for damage to a portion of the shipment.
On November 24, 1951, libelants, at New Orleans, delivered the wheat in good condition to the General Artigas for transportation to Salvador and Santos, Brazil. Part of the wheat was discharged at Salvador on December 16th to the 18th, the balance at Santos, December 28th to January 9th. On January 3, 1952, some of the wheat from No. 5 hold was discovered to be in a damaged condition, charred and blackened.
The contract of carriage incorporated the provisions of the Carriage of Goods by Sea Act, Title 46 U.S.C.A. §§ 1300-1315.
Libelants charge that the damage was caused by sea and rain water entering into the hold through uncovered ventilators and that the carrier is liable for improper care and custody of the cargo. 46 U.S.C.A. § 1303(2); Andean Trading Co. v. Pacific Steam Nav. Co., 2 Cir., 263 F. 559; The Jean Bart, D.C., 197 F. 1002; The S.S. Austurias, D.C., 40 F.Supp. 168, affirmed Wessels v. The Asturias, 2 Cir., 126 F.2d 999. Respondents admit the damage to the wheat but contend that the cause of damage was steam from the steam smothering line in the hold, the valve having been inadvertently opened, and that turning on the steam was an error in the management of the ship for which they are not liable. 46 U.S.C.A. § 1304(2)(a); The Newport, D.C., 3 F.2d 1017, reversed on other grounds, 9 Cir., 7 F.2d 452.
The S.S. General Artigas is a Canadian Liberty type vessel, 416 feet in length, 56 feet and 10 1/2 inches wide, and 37 feet and 4 inches deep.
The ship's five lower holds and tween decks were stowed with 9,975 tons of wheat, all in bulk, except 450 tons in bags, of which 61 tons, about 2,000 bags were stowed in the after part of No. 5 tween deck. Also in the tween deck, forward part, 263 tons of the bulk wheat were stored in bins, while the lower hold contained 1,407 tons of the bulk wheat.
No. 5 hold is 60 feet long, 50 feet wide at the forward end, 40 feet at the after and 28 feet deep from tween deck to tank tops. The hatch, beginning 20 feet from the after end of the hold, is 35 feet long and 20 feet wide, 10 feet on either side of the hold's center line. A center line longitudinal bulkhead extends out from the after end of the lower hold 20 feet, terminating at the after end of the hatch coaming.
There are four cowl-type ventilators, trunks about 2 feet in diameter, cowls about 3 feet, serving the after end of No. 5 hold, two to the tween deck and two to the lower hold, starboard and port. The openings of the ventilators in the top of No. 5 lower hold are 6 1/2 feet aft of the after end of the hatch or 13 1/2 feet forward of the after end of the hold, and about 12 feet out from the center line longitudinal bulkhead, or about 8 feet from either side of the hold.
From the engine room there are two steam lines to the weather deck aft of No. 5 hold; one furnishes steam for the mooring winch, the other is a smothering line to provide steam for No. 5 hold in case of fire. Both lines are controlled by valves about 7 feet apart on the weather deck. The valve on the line for the winch is generally open and the one to the No. 5 hold is closed except in the event of an emergency.
The steam smothering line is 2 inches in diameter and runs into No. 5 hold on the side of the center line bulkhead, a little more than 20 feet from the sides of the hold and about 1 foot aft of the hatch opening, after end, with an opening or outlet facing downward in the lower hold and no outlet in the tween deck. The outlet is 19 feet from the top of the lower hold, or 9 feet from the bottom. The outlet was in and surrounded by wheat.
The respondents' proof that the valve of the smothering line had been opened consists of the deposition of Ioannis Moustaka, the boatswain, a Greek, unemployed at the time of the trial, who testified that when the ship was all tied up at Salvador in the afternoon, as he went aft to obtain a ladder, he noticed that some steam was coming from the valve and that it was open; that he turned it off and reported it at once to the chief officer; and that he did not know how long it had been opened or by whom. Also the testimony of Foutoulakis, the first officer on the Artigas, who is still employed by the same owner but on another ship, and who testified in person that about an hour before they docked at Salvador on December 16th at 6:26 a.m., in preparing for unloading, he received word that the steam smothering line in No. 5 hold had been found open; that he went aft to look at it. It was then closed but a small wire on it had been broken and that from the condition of the packing and paint he could tell that it had been opened. He did not mention the open valve in his log book, nor did he tell the surveyors about the open valve when they came aboard on January 3rd at Santos. When confronted with the fact that no mention of that had been made by him in his log, he admitted that it was his duty to do so, but said that the master told him not to, and he obeyed the master's orders.
He was not a convincing witness, and I can give little weight to his testimony. It may be noted that Moustaka testified that it was in the afternoon after the ship had docked and that the first officer said that it was about an hour before 6:26 a.m. preparatory to docking that this occurred.
S. Spathis, master of the General Artigas, testified that the first time he heard about any valve being open was in July, 1952, which refutes the testimony of Foutoulakis, the first officer, who said that the master had told him not to mention the open valve in the log. The ship's smooth log written by the master, on January 3, 1952, when the damage to the wheat was discovered, states 'In my opinion the cause is that cargo became overheated out of warm weather and from the rough and boisterous weather we have experienced during the voyage' and includes a recommendation that Lloyd's agent appoint a surveyor in behalf of the vessel. On January 9th, after talking with Captain Scullard, who had completed a five day survey, the master added to the entry of January 3rd 'probably some sea water passed down the hold.' In his deposition, in answer to the question -- 'Is it your opinion that steam coming through that outlet (of the smothering line) in No. 5 ...