W. R. Grace & Co. v. Panama R.

MAYER, Circuit Judge. These two appeals will be disposed of in one opinion, as they arise out of the same voyage, on the same state of facts, and, while there is some additional testimony in the Blyth Case, it added nothing of evidentiary value to that adduced in the. Grace Case. Both Judges Learned Hand and Augustus N. Hand carefully discussed the facts in their opinions, and we accept the facts as found by them. The sole issue here is whether or not appellant has successfully established a defense under the following clause of the bill of lading: “No carrier * * * shall be liable * * * for unseaworthiness of th® ship, even existing at the time of shipment or sailing on the voyage, provided the owners have exorcised due diligence to make vessel seaworthy.” [722] The evidence clearly leads,to the conclusion that the vessel was unseaworthy before the voyage commenced. The Warren Adams, 74 Fed. 413, 20 C. C. A. 486. The burden of proof was upon appellant to show the exercise of due diligence. The Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65; The Wildcroft, 201 U. S. 378, 26 Sup. Ct. 467, 50 L. Ed. 794; The Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748; The Friesland (D. C.) 104 Fed. 99. So far as the testimony discloses, there was not any latent defect, so that liability, if any, under that head, need not be discussed. Appellant admitted three leaks in the vessel, and there was evidence of other leaks. Ross, a naval architect, engineer, and surveyor, who-was regarded by Judge Learned Hand as a disinterested witness, testified that, in his opinion, most of the water came through the joints at the side of the ship. Confining the inquiry to the admitted leaks, and eliminating one defect which might not have been discovered by inspection, it appears that the sea valves were covered by boxes. Such inspection as was made did not include the very easy task of taking off the boxes and examining the valves before the voyage was commenced. The vessel had been in dry dock the previous October, and, assuming that they were seaworthy six or seven months prior to the voyage, that fact does not justify the failure to remove the boxes for purposes of inspection. The burden is not on appellee to show that inspection of the sea. valves before commencing the voyage would have disclosed defects. On the contrary, it cannot be said that, if the boxes had been removed and then the valves inspected, it would not have been apparent that the defective conditions which caused the leakage existed. A sugar cargo is readily susceptible to water damage, the 'ship, as found by both District Judges, was to be subjected to greater strains than usual, and, in brief, all the circumstances required an inspection of the boxes to meet the test of due' diligence. As well put by Judge Eeamed Hand, in the Grace Case: “In such cases the ship lias the laboring oar, and must show that she could not reasonably have avoided the loss, and I think she has failed. I cannot think that under the circumstances it was sufficient precaution merely to look, below the boxes and note that no leaks had as yet developed substantial enough to leave signs after the water had presumably dried. Had the whole fixtures been in apparently good condition, they could hardly have become so dilapitated in a single voyage, with no heavier weather than that encountered. * * * It does not seem to me, however, that after the space of six months [after dry dock] it was safe to ignore such fixtures, boxed in as they were, and constantly subject to the twists and strains, due to the movements of the parts of a ship with relation to each other.” See The Alvena (D. C.) 74 Fed. 252, and 79 Fed. 973, 25 C. C. A. 261. Decrees affirmed, with costs.