When it is agreed by a charter party, on the part of the vessel,
that she shall be tight, staunch, strong, and in every way fitted
for the voyage, the owner is bound to see that the vessel is
seaworthy and suitable for the service on which she is to be
employed, and he is not excused by the fact that a defect is latent
and unknown to him, but no obligation in that respect rests upon
the owner of the cargo.
In a suit in admiralty where the libellant sought to recover for
injuries to a cargo caused by the vessel's taking in water through
a hole in her side made by the breaking away of the cap from one of
the bilge pump holes, and where the defense was that such breaking
was caused by a danger of the sea within the exception in the
charter party and bills of lading, the court below, after finding
that such bilge pumps were not unusual, and describing them and the
dangers to be apprehended from them, and after finding that before
sailing, the cap and plate showed no indications of looseness in an
examination which, after detailing it, was found to be such as a
reasonably prudent master might be expected to give, and after
finding the condition of the hole at the end of the voyage, found
further that
"at the time of the contract and lading of cargo and
commencement of voyage, the vessel was tight, staunch, and strong,
and in every way fitted for the contemplated voyage,"
that "there was no latent defect in the vessel which contributed
to the injury to the cargo, " and that "the whole of said damage to
cargo was caused by a danger of the sea, and was within the
exception in charter party and bills of lading."
Held:
(1) That these were findings determined by the interpretation
which the law put upon the circumstances of the transaction as
stated in the previous findings, and as such open to revision
here.
(2) That these deductions were incorrect, and the specific
conclusions of law did not follow.
This was a libel filed by the Bradley Fertilizer Company in the
District Court of the United States for the Southern District of
New York against the schooner
Edwin I. Morrison
Page 153 U. S. 200
to recover for the damage done to a cargo of guano by sea water
taken aboard on January 10, 1884, on her voyage from Weymouth,
Massachusetts, to Savannah, Georgia. The libel set up the charter,
the loading, the bills of lading, the sailing from Weymouth, the
arrival at Savannah, and the delivery of the cargo in a damaged
condition, and also alleged that the schooner, when she left
Weymouth and before, "was not tight, stanch, strong, and every was
fitted for said voyage as agreed;"
"and that the cap was gone from off the bilge pump hole on the
port side of said schooner, or was then so loosely, insecurely, and
negligently fastened and screwed that the same worked and came off
without any danger of the sea intervening, whereby said vessel was
unseaworthy and unfit for said voyage, or, after leaving port, said
cap was removed, and not properly and securely replaced and screwed
down, or was negligently and improperly loosened and left insecure
by those in charge of said schooner, so that by the unseaworthiness
of said schooner, or by the negligence and improper navigation of
those in charge of her, said cap came off from said pump hole
without any danger of the sea,"
and that about seven feet of water was admitted through it into
the hold and upon the cargo.
The answer admitted the charter, shipment, bills of lading,
sailing, arrival, and delivery of the cargo in a damaged condition,
and in excuse thereof alleged:
"That on said voyage the said vessel encountered very rough and
tempestuous weather, in consequence of which she shipped large
quantities of water, and was greatly damaged by the seas, and it
was found on the arrival of the said vessel at Savannah that her
said cargo, or a portion thereof, was damaged by the said perils of
the seas encountered on the said voyage or from causes excepted in
the said contract or contracts of affreightment."
The district court found that nine-tenths of the damage to the
cargo was occasioned by sea water taken in through the bilge pump
hole on the port side, and that the vessel was not seaworthy in
respect of the proper security of this port cap and plate, and
rendered a decree in favor of libelant. The opinion is reported in
27 F. 136.
Page 153 U. S. 201
The schooner sailed on the 5th of January, and, according to the
log, on the afternoon of January 9 met a very strong gale and heavy
seas, and shipped great quantities of water. The log of January 10
read as follows:
"This day begins with a strong westerly gale and sea still
running very high. At 8 a.m., set two-reefed foresail; set
storm-try-sail,
and hove vessel to, heading about south;
find that the vessel is making water faster than we can pump it out
with both pumps,
the men not being able to work at pumping
steadily because of heavy seas sweeping her decks."
"[Note. The words in italics are inserted on margin of log in
lead pencil.]"
"Sounded pumps and find that she has 7 ft. of water in the
hold."
"[Note. The figure 7 is written over an erasure.]"
"Cut the boat lashings and got all ready to leave the vessel,
when found that the cap had washed off the bilge pump hole on the
port side; nailed a piece of sheet lead over it, and started both
pumps agoing; pumped two hours, and sound again, and find that we
are freeing her very rapidly. So ends this day. No latitude; no
longitude."
The bilge pump hole referred to in the above extract was a hole
in the port side in the waterway, a short distance only in front of
the poop, and ran down through the waterway between the ceiling and
the skin of the ship. It was from three to four inches in diameter,
and covered by a brass plate about four inches square, countersunk
into the timber, through which was a hole, covered by a brass cap,
which screwed into the plate, and the plate was fastened into the
waterway by screws. There was a similar hole on the starboard side.
The district judge was of opinion that these holes, which had never
been used, were dangerous unless the caps and plates to cover them
were kept perfectly tight and secure, that "the obligation to keep
watch of their condition was as stringent as the danger from
weakness in them was extreme," and that there was no satisfactory
evidence that there had been more than a casual examination of them
since the schooner was built some eleven years previous.
Page 153 U. S. 202
The theory of the defense was that the plate and cap were
perfectly tight, but that, through the many seas taken aboard, they
were knocked off by accident or by some blow from floating
articles. The district judge held that this was possible, but, for
reasons which he gave, that its probability was exceedingly small,
and that even if it could be supposed that the plate had been
knocked off through the blow of some object washed across the deck,
it would still be incumbent on the claimant to show that the cap
and plate were so made and fastened as not to be knocked off by
ordinary collisions of that kind, which had not been done; that
while there could be scarcely any doubt that the cap and plate were
carried off through the action of the sea, yet that the evidence
indicated clearly that this was done before the vessel was
subjected to any extraordinary conditions aside from her deep
loading, and that there was no indication of any such violence
about the woodwork in that quarter as would be necessary to knock
away such a cap if properly secured, and that the only reasonable
conclusion was that, after eleven years' service, the fastenings
had become weak, and that the plate had been carried away from that
cause, and not from any extraordinary contingencies.
The case having been taken to the circuit court, the testimony
of one Candage, an expert, was given to the effect that these bilge
pump plates in the waterways were regarded as permanent fixtures
not requiring to be removed for examination; that, by taking hold
of the cap, one could judge of the firmness of the plate; that he
had sometimes unscrewed the cap, but usually could judge of
condition by the eye; that, by unscrewing, one could judge of the
condition of the wood slightly better; that he never thought it
necessary to unscrew the plate, which, if done frequently, would
have a tendency to weaken the fastenings; that if the plate of the
Morrison had been there for ten or eleven years, and never
removed, and had been painted over from time to time with the ways,
no examination was necessary other than by the eye; that he would
say as matter of opinion there would be no gradual weakening of the
fastenings of the plate; that upon the details
Page 153 U. S. 203
stated in a hypothetical question, it was his opinion that the
loss of the bilge pump plate was attributable to the fact that some
hard substance had been dashed against it by the force of the waves
and the rolling of the vessel, though the force of the water alone
could not have ripped it out and carried it away. The circuit judge
was of opinion (40 F. 501) that
"the vessel was not originally unseaworthy because she had bilge
pump holes covered as these were. The presumption of continuing
seaworthiness in respect to this part of the ship is not rebutted
by the single fact that no special test was made as to their
condition, in view of the testimony (especially that taken in this
Court) as to what is the usual examination given to such
structures."
And he concluded that the inference to be drawn from the
testimony was
"that there was no defect, patent or latent; that the fastenings
were sufficient, and were knocked out by a blow such as could not
reasonably have been anticipated, and which was caused by a danger
of the sea."
The circuit court made its findings of fact and conclusions of
law, which are given in the margin
* (and to which,
in
Page 153 U. S. 204
whole or in part, and to certain refusals to find, libelant
filed twenty-seven exceptions), and rendered a decree reversing
the
Page 153 U. S. 205
decree of the district court and dismissing the libel, with
costs, whereupon the cause was brought by appeal to this Court.
Page 153 U. S. 209
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Page 153 U. S. 210
Assuming, as we must, that the damages awarded by the district
court resulted from the loss of the cap and plate covering the
bilge pump hole, the question to be determined is whether that loss
was occasioned by a peril of the sea or by the condition of that
covering as it was when the vessel entered upon her voyage. If
through some defect or weakness the plate and cap and the screws
which secured it came off, or if the cap and plate were so made or
so fastened as to be liable to be knocked off by any ordinary blows
from objects washed by the sea across the decks, then the vessel
was not seaworthy in that respect, and the loss could not be held
to come within the exception of perils by the sea, although the
vessel encountered adverse winds and heavy weather. By the charter
party, it was agreed on the part of the vessel that she should be
tight, stanch, strong, and in every way fitted for the voyage, and
the rule is well settled that the charterer is bound to see that
his vessel is seaworthy and suitable for the service for which she
is to be employed, while no obligation to look after the matter
rests upon the owner of the cargo.
The
Northern Belle, 9 Wall. 526;
Work v.
Leathers, 97 U. S. 379. If
there be a defect, although latent and unknown known to the
charterer, he is not excused. 3 Kent *205; Valin, Com. Ord. de la
Mar. liv. III, tit. III; Du Fret, art. XII, vol. 1, p. 654;
Lyon v. Mells, 5 East 428;
Work v. Leathers,
supra.
As said on circuit by MR. JUSTICE GRAY in
The
Caledonia, 43 F. 681, 685:
"In every contract for the carriage of goods by sea, unless
otherwise expressly stipulated, there is a warranty on the part of
the shipowner that the ship is seaworthy at the time of beginning
her voyage, and not merely that he does not know her to be
unseaworthy, or that he has used his best efforts to make her
seaworthy. The warranty is absolute that the ship is, or shall be,
in fact seaworthy at that time, and does not depend on his
knowledge or ignorance, his care or negligence."
In
The Glenfruin, 10 P.D. 103, the same rule is thus
expressed by Butt, J.:
"I have always understood the result of the cases, from
Lyon
v. Mells, 5 East 428, to
Kopitoff v. Wilson, 1 Q.B.D.
377, to be that under his implied warranty of seaworthiness, the
shipowner
Page 153 U. S. 211
contracts not merely that he will do his best to make the ship
reasonably fit, but that she shall really be reasonably fit for the
voyage. Had these cases left any doubt in my mind, it would have
been set at rest by the observations of some of the peers in the
opinion they delivered in the case of
Steel v. State Line
Steamship Co., 3 App.Cas. 72."
Perils of the sea were excepted by the charter party, but the
burden of proof was on the respondents to show that the vessel was
in good condition and suitable for the voyage at its inception, and
the exception did not exonerate them from liability for loss or
damage from one of those perils to which their negligence, or that
of their servants, contributed.
Liverpool Steam Co. v. Phenix
Ins. Co., 129 U. S. 397,
129 U. S. 438.
It was for them to show affirmatively the safety of the cap and
plate, and that they were carried away by extraordinary
contingencies not reasonably to have been anticipated. We do not
understand from the findings that the severity of the weather
encountered by the
Morrison was anything more than was to
be expected upon a voyage such as this down that coast and in the
winter season, or that she was subjected to any greater danger than
a vessel so heavily loaded and with a hard cargo might have
anticipated under the circumstances. The especial peril which
seemed at one time to threaten her safety was directly attributable
to the water taken aboard through the uncovered bilge pump hole,
which rose from eighteen inches about 5 a.m. to seven feet at about
9 a.m., so that she was necessarily sinking deeper and deeper,
while the absorption by the guano added to the dead weight and
increased the danger of her going down.
Among other exceptions, libelant excepted to the refusal to
amend one of the findings by adding:
"No spars nor sails were carried away, and no repairs were made
to the vessel at Savannah beyond nailing a few boards on the
starboard side, where the bulwarks had been broken, which was done
by the crew, and the vessel, after discharging, loaded with a cargo
of phosphate rock, which is a much harder cargo to carry than
guano, and delivered it safely."
These facts were established in substance by uncontradicted
evidence, and, as they
Page 153 U. S. 212
tended to show that the schooner was not injured to any
appreciable degree, and therefore that the weather was not of such
an extraordinary character as would have damaged the cargo to the
extent that it was if the vessel had been seaworthy in the respect
under consideration, we think the amendment was material, and
should in effect have been made. What happened to the vessel after
the loss of the bilge pump plate throws but little, if any, light
upon the situation at the time of the loss, and libelant excepted
to parts of the thirteenth finding, so far as they involved the
inference that certain incidents therein detailed occurred before
the cap and plate came off, as unsupported by evidence, and also to
that part of the sixteenth finding which stated that it was to be
inferred that the plate was knocked out "subsequently to the time
when they wore ship, after finding eighteen inches of water in the
hold," on the same ground. But, without going into these details or
inquiring how far they are open to examination, the significant
fact is found that although at half-past four in the morning, the
pumps sucked, indicating that there was then no water in the well,
they did not suck twenty minutes later, as disclosed by the
evidence, nor again until the hole was discovered and stopped up,
when they gained on the water, and after several hours freed the
vessel.
In any aspect, the real point in controversy is did the
respondents so far sustain the burden of proof which was upon them
as to render the probability that the cap and plate were in good
condition and knocked off through extraordinary contingencies so
strong as to overcome the inference that they were not in condition
to withstand the stress to which on such a voyage it might
reasonably have been expected they would have been subjected? If
the determination of this question is left in doubt, that doubt
must be resolved against them.
The eighth, eleventh, twelfth, fourteenth, fifteenth, and
sixteenth findings were as follows:
"VIII. Such bilge pump holes are not unusual in vessels
constructed in some localities. The plates are generally considered
permanent fixtures, not peculiarly susceptible to deterioration
from age. Verdigris sometimes forms around
Page 153 U. S. 213
brass screws, thus weakening the hold of the wood, but waterways
located as this was, well covered up and well painted, are not
liable to rot, and their reasonable expectation of sound life is
largely in excess of twelve years."
"If the plates and caps which are generally used to cover such
holes are not kept tight and secure, the holes become dangerous;
but that mode of covering was generally deemed secure by seafaring
men, and seldom, if ever, have any accidents arisen from their
use."
"XI. Before the vessel sailed, the cap and plate appeared to be
in good order, with no indication of looseness. The examination
which was at that time made of them consisted of such inspection as
could be given by the eye, and to such an inspection they were from
time to time subjected. They were not tested either by unscrewing
the cap or the plate or by tapping the plate with a hammer. Tapping
with a hammer or unscrewing the cap might have developed any
insecurity (if there were any) in the bilge pump plate. Immediately
after the loss of the port bilge plate (hereafter described), the
mate tested the condition of the similar plate on the poop deck,
starboard side, by tapping with a hammer, and found it apparently
sound."
"XII. The examination which was made of the cap and plate, as
set forth in the eleventh finding (
viz., by a survey
without the use of special tests, unless there is some appearance
of defect) is such as a reasonably prudent master or owner might be
expected to give them in order to determine the seaworthiness of
his vessel before beginning a voyage."
"XIV. The wood to which the plate had been fastened looked white
and sound. From the holes out of which the screws had come, part of
the clear wood was itself hauled, the splinters hanging around the
edges of the holes, the holes thus presenting a ragged look. The
screw holes were not smooth nor black nor rusty. The wood of this
particular waterway in the vicinity of the plate did not look
rotten, and when, after arrival at Savannah, the temporary plugging
referred to in the seventeenth finding was removed and the hole
plugged and covered with sheet lead, the timber into which the plug
was
Page 153 U. S. 214
driven and on which the lead was nailed was found solid, and
since that time the covering had not been further repaired nor the
timber changed in any way."
"XV. No marks of violence other than the splintering of the wood
about the screw holes were visible upon the waterway or upon the
adjacent bulwarks or stanchions."
"XVI. As no one witnessed the removal of the bilge pump plate,
direct evidence of the cause of this mishap is not obtainable. It
is, however, to be inferred from the facts proved that it was
knocked out by something striking violently against it subsequently
to the time when they wore ship after finding eighteen inches of
water in the well, which would be between 5 a.m. and 5:30 a.m."
There was no direct evidence that the plate was knocked out, or,
if this were so, that it was by some extraordinary collision, and
while the fourteenth finding tends to support the inference of the
sixteenth, it will be observed that the tendency of the fifteenth
is to rebut it. If it appeared that the wood was solid and the
screw holes splintered, the drawing out of the screws might be
imputed to a blow or blows; but, on the other hand, if there were
no marks of violence in the vicinity, since such blow or blows to
effect the result, if the cap, plate, and waterway were in good
condition, must necessarily have been of great violence, it seems
almost incredible that no marks thereof appeared on the stanchions
and bulwarks on the port side, and that nothing but the cap and
plate were carried away. And here it is proper to note that no
survey of the vessel was had, and that respondents introduced no
proof of exact measurements to show the height of the cap above the
waterway or of the perpendicular edge, nor was the duplicate cap on
the starboard side produced.
If, however, the vessel had been so inspected as to establish
her seaworthiness when she entered upon her voyage, then, upon the
presumption that that seaworthiness continued, the conclusion
reached might follow, but we are of opinion that precisely here
respondents failed in their case.
From the sixth and seventh findings, it appears that the vessel
was built in 1873; that the bilge pump hole had not been
Page 153 U. S. 215
used for four or five years, if at all, and that the cap and
plate were painted over whenever the waterway was painted, and,
from the findings above quoted, that these holes were dangerous
unless the caps and plates were kept tight and secure; that the
hold of the wood might become weakened by the formation of
verdigris about the brass screws; that tapping with a hammer or
unscrewing the cap might have developed any insecurity, if there
were any; that no such tests were applied, but that the caps and
plates appeared all right to visual observation. But this was not
enough to establish the fact of security, and the twelfth finding,
that examination by the eye is such as a reasonably prudent master
or owner might be expected to give such coverings in order to
determine their seaworthiness, does not give it that effect. The
obligation rested on the owners to make such inspection as would
ascertain that the caps and plates were secure. Their warranty that
the vessel was seaworthy in fact "did not depend on their knowledge
or ignorance, their care or negligence." The burden was upon them
to show seaworthiness, and if they did not do so, they failed to
sustain that burden, even though owners are in the habit of not
using the precautions which would demonstrate the fact. In relying
upon external appearances in place of known tests, respondents took
the risk of their inability to satisfactorily prove the safety of
the cap and plate if loss occurred through their displacement.
We are unwilling by approving resort to mere conjecture as to
the cause of the disappearance of this cap and plate to relax the
important and salutary rule in respect of seaworthiness.
The
Reeside, 2 Sumner 567, 574;
Douglas v. Scougall, 4
Dow. H.L. 269.
The findings that
"at the time of the contract and lading of cargo and
commencement of voyage the vessel was tight, stanch, and strong,
and in every way fitted for the contemplated voyage,"
that "there was no latent defect in the vessel which contributed
to the injury to the cargo," and that "the whole of said damage to
cargo was caused by a danger of the seas, and was within the
exception in charter party and bills of lading" were findings
determined by the interpretation
Page 153 U. S. 216
which the law put upon the circumstances of the transaction as
stated in the previous findings, and, as such, open to our
revision.
Sun. Mutual Insurance Co. v. Ocean Insurance
Co., 107 U. S. 485;
United States v. Pugh, 99 U. S. 265;
The Britannia, ante, 153 U. S. 130;
Gilroy v. Price (1893), App.Cas. 56, 64.
In our judgment, these deductions were incorrect, and the
specific conclusions of law did not follow.
The decree of the circuit court is reversed, and the cause
remanded, with a direction to enter a decree for libelant for the
amount found due by the district court, with interest and
costs.
MR. JUSTICE BREWER, not having heard the argument, and MR.
JUSTICE WHITE, not being a member of the court when the hearing was
had, took no part in the consideration and decision of the
case.
*
"I. The schooner
Edwin I. Morrison
, owned by
the claimants, was chartered on December 19, 1883, by a written
charter party, to the libelant for a voyage from Weymouth, Mass. to
Savannah, Ga., to carry a complete cargo of guano in bags and (or)
in bulk for a price agreed upon."
"II. By the charter party it was agreed on the part of the
vessel that she 'should be tight, stanch, strong, and every way
fitted for such a voyage,' and 'the dangers of the sea [were]
mutually excepted.�"
"III. Under this charter, there was loaded on board said
schooner by the libelant a cargo of guano, superphospate, and other
fertilizers,
viz., 343 1680/2240 tons in bulk and 410
35/61 tons in bags, besides 3,925 empty bags and sacks. Six bills
of lading were given therefor, which acknowledged the receipt of
said cargo in good order and condition and agreed to deliver the
same in like good order and condition at Savannah, the dangers of
the sea only excepted. The bulk cargo was stowed between decks, and
the remainder in the lower hold."
"IV. The cargo was what is known as a 'dead cargo,' and a hard
one for a vessel to carry in severe weather."
"V. The vessel was not overloaded. She was accustomed to and
able to carry that amount of cargo of the same character at that
season."
"VI. The vessel was built in 1873; had three masts; was about
155 feet long over all, carrying spanker, mainsail, foresail,
forestaysail, jib, flying jib, outer jib, foretopsail, maintopsail,
and mizzen topsail. She was properly manned and equipped. Her
officers and crew consisted of a master, first mate, second mate,
steward, and four sailors. On this voyage, she had two passengers
on board,
viz., the master's wife and a lady friend."
"VII. On the port side of the vessel, in the waterway, and close
to the bulwark, there was a hole about three inches in diameter,
made when she was built for the purpose of introducing a hose pipe
into her bilges to free her of any water accumulated there. The
waterway (of yellow pine) was about three and a half inches above
the deck. The hole was a short distance in front of the poop and
ran down through the waterway, between the ceiling and the skin of
plate about four inches square, countersunk plate about four inches
square, countersunk into the timber flush with the top of the
waterway and fastened by four brass screws. In the brass plate was
a removable cap, also of brass, intended to be unscrewed from the
plate when the hole was to be used, but it had not, in fact been
used for four or five years (if indeed at all), and was painted
over whenever the waterway was painted. The removable cap projected
about three-eighths of an inch above the surface of the plate, the
edges being beveled so as to leave not more than an eighth of an
inch of perpendicular surface. There was a similar plate and cap on
the starboard side of the vessel, but somewhat further aft, and
upon the poop deck."
"VIII. Such bilge pump holes are not unusual in vessels
constructed in some localities. The plates are generally considered
permanent fixtures, not peculiarly susceptible to deterioration
from age. Verdigris sometimes forms around brass screws, thus
weakening the hold of the wood, but waterways located as this was,
well covered up and well painted, are not liable to rot, and their
reasonable expectation of sound life is largely in excess of twelve
years."
"If the plates and caps which are generally used to cover such
holes are not kept tight and secure, the holes become dangerous;
but that mode of covering was generally deemed secure by seafaring
men, and seldom if ever have any accidents arisen from their
use."
"IX. The bilge pump hole, heretofore described as located in the
waterway, was opposite a port in the bulwarks of the vessel. The
opening of the port was about a foot square, beginning about two
inches from the bulkhead of the poop deck. The poop deck was about
four and a half feet above the main deck, and extended from just
about the mainmast to the stern."
"X. Said bilge pump plate was in plain view upon a casual
inspection at the time of making the charter and loading the
vessel. The vessel was loaded several times before this voyage by
the libelant."
"XI. Before the vessel sailed, the cap and plate appeared to be
in good order, with no indication of looseness. The examination
which was at that time made of them consisted of such inspection as
could be given by the eye, and to such an inspection they were from
time to time subjected. They were not tested either by unscrewing
the cap or the plate or by tapping the plate with a hammer. Tapping
with a hammer or unscrewing the cap might have developed any
insecurity (if there were any) in the bilge pump plate. Immediately
after the loss of the port bilge plate (hereafter described), the
mate tested the condition of the similar plate on the poop deck,
starboard side, by tapping with a hammer, and found it apparently
sound."
"XII. The examination which was made of the cap and plate, as
set forth in the eleventh finding (
viz. by a survey
without the use of special tests, unless there is some appearance
of defect) is such as a reasonably prudent master or owner might be
expected to give them in order to determine the seaworthiness of
his vessel before beginning a voyage."
"XIII. The voyage began the 5th day of January, 1884, and the
vessel actually got to sea on the 7th, when she encountered a
strong northwest gale. The light sails were furled and the mainsail
and foresail double reefed. The gale caused her to labor heavily,
and ship large quantities of water, some of which entered the cabin
and reached the cargo. The vessel was driven out of her course and
into the Gulf Stream. The gale moderated somewhat the latter part
of the day, but the vessel still continued to roll heavily and
shipped plenty of water. The pumps were attended to, and the vessel
was found to be making considerable water. The next day the gale
continued, with a very heavy sea running, until about 4 p.m., when
it moderated, and at 6 p.m. topsails were set. The latter part of
the day there was a strong breeze, and two reefs were made in the
spanker. The vessel made little water this day. The next day (the
9th) began with a strong southeast breeze, which freshened to a
strong gale. Two reefs were made in main and foresails. At 4 p.m.
the spanker and jib were furled. The middle part of the day there
was a very sharp gale and heavy sea running. The vessel labored
heavily and shipped great quantities of water. The pumps were
carefully attended to, and she was found to be making considerable
water. The latter part of the day the wind was still increasing,
and the foresail and the forestaysail were furled. It was then
blowing a 'living' gale from the westward. The weather through the
night continued to be extremely severe; there was a 'terrific gale
of wind.' Planks were carried away from the bulwarks of the
starboard side of the vessel; also one of the ports; the waterway
on starboard side was started off. The covers of the chain locker
and a spar were found loose in the morning, floating in the waist
of the vessel on both sides. Coal washed about decks; also, buckets
and bucket racks; also, pieces of bulwark. The forecastle door and
galley door were washed off, but were not lost. The men could not
stand at pumps on main deck because it was continually swept by the
seas, and it was with difficulty that they were able to work at the
pump on the poop deck, which was about four and a half feet higher
than the main deck, on account of the sea breaking over. Before
midnight, the vessel was hove to under a storm trysail, two-reefed
foresail, and forestaysail on the port tack. The vessel was
shipping water through the cabin windows, doors, and down the booby
hatch. The cabin was situated in the after part of the poop deck.
The top of the cabin house was about three and a half feet above
the deck. They commenced to take water in the cabin while eating
supper, and all through the night it forced its way in. This was
unusual, and indicated very bad weather and a rough sea. Everything
in the cabin was drenched, excepting the berths, with water washing
around the cabin with motion of vessel. Water reached the cargo
during the night through the cabin, a strained waterway, and
otherwise. The pumps were tried every two hours, and by four
o'clock Thursday morning it was discovered, by the pumps bringing
up guano with the water, that the cargo was wet. The master of the
vessel did not go to bed during the night, but was mostly on deck.
Previous to 4:30 o'clock in the morning, they were able to get a
suck on the pumps, indicating that there was no water then in the
well, but after that they were unable to do so. At this time, the
weather was very bad, a very bad sea flooding the decks
continually, and washing everything movable about. About five
o'clock they sounded, and found eighteen inches of water in the
well. In about half an hour afterwards they wore ship, putting the
vessel before the wind, so that the men could stand at the pumps.
This gave the vessel a list to port. The only outlets on the port
side for the seas that came aboard were the open port above
mentioned and the scuppers. They continued pumping, but still were
unable to get a suck, and at nine o'clock soundings showed about
seven feet of water in the vessel. Preparations were then made to
abandon the vessel, as she was supposed to be sinking. The lashings
of the boat on the poop deck were cut, and the women on board came
up from the cabin to take the boat. Between ten and eleven o'clock
they wore ship, and the vessel slowly righted up, the booms
swinging from the port to the starboard side, bringing the port
side out of the water. The vessel was then working heavily in the
sea, losing steerageway, and settling fast. When the vessel righted
up and rolled her lee side out of water, the second mate, who, with
others fastened with lines to prevent them from being washed away,
was working at the pump on the main deck, heard a heavy gurgling
sound, and let go the pump and went over to the port side, put his
hand against the rail, and looked down under it to where the bilge
pump plate was, and saw a hole large enough to put his hand in. He
ran his hand and arm down the hole, and sung out to the captain,
'Look here!' Being greatly excited and not looking for such a
thing, he hardly realized what the trouble was. The captain came
and said, 'My God, this is the bilge pump.' It was found that the
whole bilge pump plate, with the screws, was gone."
"XIV. The wood to which the plate had been fastened looked white
and sound. From the holes out of which the screws had come part of
the clear wood was itself hauled, the splinters hanging around the
edges of the holes, the holes thus presenting a ragged look. The
screw holes were not smooth nor black nor rusty. The wood of this
particular waterway in the vicinity of the plate did not look
rotten, and when after arrival at Savannah the temporary plugging
referred to in the seventeenth finding was removed, and the hole
plugged and covered with sheet lead, the timber into which the plug
was driven and on which the lead was nailed was found solid, and
since that time the covering had not been further repaired nor the
timber changed in any way."
"XV. No marks of violence other than the splintering of the wood
about the screw holes were visible upon the waterway or upon the
adjacent bulwarks or stanchions."
"XVI. As no one witnessed the removal of the bilge pump plate,
direct evidence of the cause of this mishap is not obtainable. It
is, however, to be inferred from the facts proved that it was
knocked out by something striking violently against it subsequently
to the time when they wore ship after finding eighteen inches of
water in the well, which would be between 5 a.m. and 5:30 a.m."
"XVII. The hole was at once plugged up, covered with canvas, and
sheet lead nailed over the canvas."
"XVIII. At this time, the wind had abated somewhat. The vessel's
wheel was tied hard up and the sails trimmed so that she would lie
to, and the crew went to work pumping again, and gained on the
water. By eleven or twelve o'clock that night, they succeeded in
getting her free of water so far as the pumps could do so, and the
journey was continued."
"XIX. Afterwards it was found that the mainmast had been
loosened by the working of the vessel, and that the coating was
broken; also, that a scupper on the starboard side was broken."
"XX. The weather continued severe during almost the entire
voyage, and the injury to cargo was increased thereby."
"XXI. The vessel arrived in Savannah, January 27th."
"XXII. Upon the arrival, she delivered her cargo, some of it in
a damaged condition. The extent of the damage was $9,175.40."
"XXIII. At the time of the contract and lading of cargo and
commencement of voyage, the vessel was tight, stanch, and strong,
and in every way fitted for the contemplated voyage."
"XXIV. There was no latent defect in the vessel which
contributed to the injury to the cargo."
"XXV. There was no fault or negligence in the navigation of the
vessel or care of the cargo."
"XXVI. The whole of said damage to cargo was caused by a danger
of the seas, and was within the exception in charter party and
bills of lading."
"
Conclusions of Law"
"First. The damage is to be attributed to the dangers of the
seas, and not to the fault of the vessel."
"Second. The decree of the district court is reversed, and the
libel dismissed, with costs of both courts."
