The opinion of the court was delivered by: DAWSON
This is an action in admiralty for cargo damage sustained by a shipment of cartons of tinplate shipped on board respondent's vessel 'Leerdam' on a voyage from Philadelphia to Antwerp in October, 1951. The damage consisted of staining which was caused by oil and turpentine which leaked from drums stowed in the same compartment of the vessel as the tinplate.
It was admitted that the tinplate was received by the ship in apparent good order and condition, and that 641 cartons of the tinplate were stowed by respondent in the after part of the No. 3 shelter deck in which there were also stowed 105 drums of a turpentine substitute and 75 drums of oil. It was also admitted that upon discharge of the cargo at Antwerp, the 641 cartons of tinplate had been in contact with the turpentine substitute and/or oil which had leaked from their containers and that such leakage had caused damage to the cartons of tinplate.
The issue is whether damage to the cargo was caused without the actual 'fault or neglect' of the agents or servants of the carrier within the meaning of 46 U.S.C.A. § 1304(2)(q), and also whether the damage was caused by the 'Perils, dangers, and accidents of the sea' within the meaning of 46 U.S.C.A. § 1304(2) (c).
The following facts appear without substantial dispute:
The 641 cartons of tinplate were stowed in three tiers in the after end of the port side of the No. 3 upper 'tween deck. The bottom tier of cartons rested on two layers of dunnage, each layer being one inch in thickness.
There were stowed on top of the cartons of tinplate eight layers of melamine powder contained in heavy paper bags. The two commodities were separated by a solid layer of dunnage and canvas.
The cartons of tinplate and the bags of melamine powder were secured against movement fore and aft, or athwartship, by dunnage and wood.
In the same compartment of the ship, the drums of oil and turpentine were stowed in the forward part in two tiers of 55-gallon drums. The bottom tier of drums was laid on two layers of dunnage, each layer being one inch in thickness, and there was also one layer of dunnage of one inch thickness laid between the two tiers of drums.
The drums were secured by stretching a one inch steel wire across each tier of drums. This wire was attached to a ring secured to the ship's rib and extended across the row of drums to a similar ring attached to the center line trunkway. Each wire was tightened with a turnbuckle. No dunnage was placed upright between the drums; no dunnage was placed between the wire lashing and the row of drums, and there was no tomming to protect against vertical movement of the drums while at sea.
The testimony of the second officer of the ship was that the voyage across the ocean encountered rough weather with high seas, resulting in pitching and rolling of the ship. The ship's log indicated that the wind reached a velocity of 8 on the Beaufort Scale, which would indicate a wind of about 39 to 46 miles per hour.
The testimony of the second officer was that one oil drum and one drum of turpentine leaked during the voyage. The leaking liquids flowed to the after end of the 'tween deck and lodged between and underneath the two layers of dunnage upon which libelant's cartons of tinplate rested. He stated that under normal circumstances, the liquid would have gone down the drain pipe, which was located in the after part of the 'tween deck. However, the bags of melamine powder had broken and the powder had sifted to the deck from the torn bags and the scupper pipe became clogged with a paste formed by the admixture of the oil and turpentine and the melamine powder, thereby blocking the drain pipe. Thus, the accumulated liquid rose above the two inch dunnage level and came in contact with the tinplate. Some of the cartons of tinplate were entirely saturated with the liquid and fell apart when handled.
It is well established that a carrier of goods by sea is prima facie liable for damage to cargo received in good condition but which is outturned in a damaged condition at the end of the voyage, unless the carrier can affirmatively show that the immediate cause of the damage is an excepted cause for which the law does not hold him responsible. Schroeder Bros., Inc., v. The Saturnia, 2 Cir., 1955, 226 F.2d 147.
The mere fact that rough seas were encountered did not constitute an excepted cause which in this case would excuse the vessel from the requirement of delivering the cargo in good condition. Here the evidence is not such as to show that the damage to the cargo resulted from a 'peril of the sea'. There was no evidence that the weather was so severe that any damage was done to the ship, or that it was worse than reasonably might have been anticipated on such a voyage at this period of the year. See The Rosalia, 2 Cir., 1920, 264 F. 285, 288; Philippine Sugar Centrals Agency v. Kokusai Kisen, 2 Cir., 1939, 106 F.2d 32, 34, 35. Unquestionably, rough weather and heavy seas were encountered, but where a vessel is subjected to no greater risk or damage than reasonably might have been anticipated in the voyage, 'peril of the sea' furnishes no immunity. The Schickshinny, D.C.S.D.Ga.1942, 45 F.Supp. 813, 817.
Thus, it has been held in this District that even if there were heavy seas and a wind force of 9 and 10 on the Beaufort Scale, damage to cargo would not be due to perils of the sea, for weather of such type should have been anticipated in the stowage of cargo. Middle ...