The opinion of the court was delivered by: WEINFELD
EDWARD WEINFELD, District Judge.
This prosecution arises out of an ill-fated shipment of eighty wild animals, giraffes, zebras, dik diks, gazelles and other types whose native habitat is East Africa. The shipment was made aboard the MS New Westminster City from Mombasa on the east coast of Africa, to the Port of New York, within this district.
The vessel set sail from Mombasa on October 12, 1969, and reached her destination at the Port of New York on November 13, 1969. During the course of the voyage around the Cape of Good Hope, across the South Atlantic and up the east coast of the United States, past Cape Hatteras, eight animals -- five zebras, two dik diks, and one giraffe died and were disposed of at sea. Upon arrival here, an additional four zebras were found dead in their crates. These four, together with the remainder of the shipment, were removed from the vessel and transferred to the United States Animal Quarantine Station at Clifton, New Jersey, where fourteen more died, either during processing or soon thereafter.
More than a year later, in February 1971, the indictment was returned against various defendants, charging them with having unlawfully, willfully and knowingly caused and permitted the shipment of the eighty wild animals to be transported to the United States under inhumane and unhealthful conditions, in violation of 18 U.S.C. section 42, and the regulations promulgated thereunder by the Secretary of the Treasury, to wit, 19 C.F.R., section 12.26(j) and (k).
The defendants on trial include the alleged owner, the charterer and the chartering agent of the MS New Westminster City, and the shipper of some of the animals. Also indicted were the master of the vessel and another shipper, but the indictment was severed as to them, since they were beyond the court's jurisdiction.
Specifically, the indictment charges unhealthful conditions in that the animals were shipped on the top deck of the vessel and subjected to heavy rain, cold and other inclement weather; the crates in which the animals were caged were unheated, too small, unsafe, improperly constructed, and otherwise unsuitable for their transportation, thereby causing them injury or death, and that feed given the animals was partially inedible.
The only eyewitness evidence offered by the government as to conditions and treatment of the animals aboard the New Westminster City was the testimony of James Cassidy, who was the junior engineer during the voyage, who then was 22 years of age and had been to sea only once before, and then for about nine or ten months.
Cassidy testified that the animals, caged in rough wooden crates or boxes, were loaded on the top deck of the vessel aft of the midship accommodations facing inwards. The crates were of varying sizes, depending upon the type animal, and were tightly lashed. They were so constructed that spaces of about an inch and a half between the slats permitted ventilation.
Cassidy's duties kept him in the engine room during his watch, from 8 a.m. to noon, and from 8 p.m. to midnight, and thus his observation of conditions and activities was limited, and further so since he went to the top deck where the animals were stowed on his off hours, and then only several times a week. Cassidy testified that two keepers or trainers, one an elderly man, who testified at this trial, and the other a lad of 17, were in attendance upon the animals. As part of his duties, Cassidy pumped water up every morning for the animals, and in the afternoon, whenever he was on the deck, he saw the animals fed.
As to weather conditions, he testified that after leaving Mombasa, it was sunny and warm, about 80 degrees, and continued so for the better part of the first week, when about the fifth day out a storm came up with heavy rain, with the ship pitching and rolling; that the animals were trying to keep their balance and were thrown around a bit.
He further testified that the crates which were lashed to the deck did not wobble from one side to the other; that tarpaulins placed over the crates sheltered the animals from the wind, rain and other elements; that the tarpaulins covered the tops of the crates; that those used for the giraffes had an opening that permitted them to move their necks above the top; and that the crates for the gazelles had wire mesh.
The storm subsided after a few days, and during the second and third weeks the weather was in the 80's, with the sea quiet and calm. Beginning with the fourth week, the weather gradually got colder; the sea roughened and the wind picked up, and upon arrival in New York on November 13, it was cold.
The first animal died about two days after the storm -- that is, about eight days after the vessel left Mombasa, and thereafter other zebras, dik diks and a giraffe met a similar fate -- in all, eight died during the voyage and were disposed of at sea. Pictures taken by Cassidy of some of the animals as they were being thrown overboard showed their bodies marked by abrasions and cut knees, and Cassidy so testified. Since he had never sailed with animals before, Cassidy had no opinion as to whether the crates were adequate, nor did he testify as to the quality and edibility of the food, except to say he only saw hay, and that the food which was stored on deck was covered by a tarpaulin. Finally, questioned as to why he thought the animals had died, he expressed the view they had just given up the will to live.
The government also relies upon the testimony of Dr. Keith Sherman, a veterinarian pathologist with the Department of Agriculture, who performed necropsies at the Clifton Quarantine Station upon the four zebras who were dead upon the vessel's arrival at the Port of New York, and on other animals who died at the Quarantine Station soon after processing there. The processing included tattooing an ear, drawing blood from the animal and forcing it into a vat for a chemical bath. The animals necropsied included zebras, a gerenuk (a small antelope), two dik diks, a wildebeeste and a Speke gazelle. Dr. Sherman found the zebras suffered superficial wounds and abrasions; that none of the animals had pneumonia or any infectious disease, but he did find all were emaciated, "whether the food was not presented or the animals just plain didn't eat, and I imagine this was the case." In his opinion, the cause of death was physical exhaustion, probably due to environmental stress in transit. The doctor acknowledged that ...