.THE .EXE.

155

was only about one half what supposed. There was time for several such observations. All wou.ld have repeated the same warning, and spown the necessity of a much greater change of course to port. I must hold the master remiss in his duty, both fornot taking a. cou.rse more to port, which a proper consultation of his chart would have shown to be necessary on his own estimate of his position, and also for J:!.ot correcting his erroneous estimate of position by observations with thealidade. For losses resulting from such neglect,. either to ship or cargo, the master is directly responsible to the persons injured; and to the by subrogation, on it.spayment of the insurance. Story, Ag. §§ 314, 315. . Decree for the libelant, with costs.

THE EXE.

WILLIAMS

v.

THE EXE.

(DisWlct Court, S. D. New YOTk. July 11,1899.)
BmpPING-DAMAGE TO CAllGO-INSUFII'ICIENT FITTlNGs-NBGLIGBNCB.

A cargo ot tea was delivered damaged by water which had been admitted to the hold ot a vessel through an open bolt hole in the water ballast tank. The court tounil that the damage proceeded either from the original insuffioiency ot a stan. chion, which the bolt had served to fasten, or ita bad condition or bad fastening at the commencement of the voyage. Held, that the ship, not the cargo, took the risk of suoh defect.

In Admiralty.

Libel for damage to cargo.

Decree for libelant.

Sidney Ohubb, for libelant.

Oonvers

Kirlin, for claimants.

BROWN, District Judge. On the delivery of a consignment of tea in New York in November, 1891, by the steamship Exe, 217 packages were found damaged. They had been stowed in copartment No. 2 and the damaged packages were in the lower tier, where they had been more or less wet by water, which, upon subsequent examination, proved to have come through an open bolt hole in the water ballast tank. The bolt had served to fasten the smaller stanchion some five or six inches from the principal stanchion over the keelson. This stanchion of iron, two inches in diameter, was found bent in the middle and loose at the bottom, the bolt having been drawn out of the hole where it had been fastened. The claimants contend that the bending of the stanchion, and the consequent drawiflg of the bolt were caused through the surging of the ship in heavy weather, that is, by a peril of the sea, and by the weight of the cargo pressing against the stanchion in the rolling of the ship on .the voyage. I am not satisfied of the sufficiency of this expla.

156

FEDERAL REPORTER,

vol. 52.

nation. The cargo of tea was a comparatively light cargo; it was not calculated to damage and to break down into an unseaworthy condition a vessel properly constructed, and in proper condition at the commencement of the voyage. The weather was not so extraordinary that damages arising from mere insufficiency of the interior structure of the vessel to keep the cargo from water damage, should fallon the cargo. The bolt when loose was found to be much rusted. The mal:!ter in his testimony speaks of it as so loose and rusted that water might come around it. Packages of tea are, or ought to be, so tightly packed as not to admit of any shifting. In this case there was no proper shifting; onlyevidences of slight movement of the Some boxes in the neighborhood of the stanchion were broken; and some damaged on top. But the risks of the bending of a stanchion like this. and of pulling out rusty bolts, do not belong to the cargo, but to the ship. Had they been of proper strength and in Proper condition, no such accident could have happened, or such damage arisen. In my judgment the damage proceeded from either the original insufficient strength of the stanchion, or from its bad condition, or bad fastening at the commencement of the voyage. For such defects, either of condition, or of original structure, the ship, and not the cargo, takes the risk; and to such damages none of the exceptions of the bill of lading apply. The Hadji, 16 Fed. Rep. 861, affirmed 20 Fed. Rep. 876; The Rover, 33 Fed. Rep. 515. 516, a$r¢ed 41 Fed. Rep. 58; Qaledonia, 43 Fed. Rep. 681; Steel v. etc., 8 App. Cas. 72, 86; Tatter8aU v. Steam8hip Co., 12 Q. B. Div.29,7. Decree for the libelant, with costs, with au order of reference to compute the damages, if not agreed upon.

THE

COVENTINA.

MUSICA V. THE COVENTINA.

(Dt8trtct Oourt, 8. D. New York.

LIABILITY TO CARGO OWNER.

JUly 14, 1899.)

10 SHIPPING-I)liIt....l' IN SAlLING-CONTROVERSY BETWEEN OWNER AND CHARTERER-

The ownarsof a vessel ohartered her for the purpose of proouring freight, and the master iSsued the UIlUa! bills of lading to a shipper, importing a delivery of the good, witbiri a reasonable time. Thereafter a controversy arose between the owners and' charterers, by reason of which the sailing of the vessel was unduly delayed. that the vessel was liable to the shipper for the excessive delay caused by such controversy.

8.

B.orE-"DEUY'Dulll TO 'ATTACHMENT 011' VESSEL-DUTY 011' OWNER TO SHIPPER.

W)leua,v:essel was attached after'oargo had been put abo"rd, and could not be released until the end Of, an uncertain litigation, held, that the shipper's goods should' have been transferred to another vessel, or notioe given the shipper of the liability to dlllay, with the privilege of reshipping. In default of this, the ship took on herself the risk of loss by delay, with ri/{ht of recourse for indemnity over to the person causing it.