Kaufer Co. v. Luckenbach S. S. Co.

NI~Ti~R~R, Dstrict JudgeS This case was before the court on cxcepi:ioi~s to the answer. 284 Fed. 160. The court there said: "The answer is Iiarren of a~y aUe~ation a~ to the seaworthine~n of the ~hip. En the ebsence of such allegation, the exempUon clause that the responlcnt sliohid not be liable for `heat damages' is immaterial. Jt the vessel was seaworthy, the exemption is available, and the burden Is then on the shipper to show negligence, notwlthstanthiig seaworthiness." An amci~dcd answer was flied, alleging seaworthiness. The case is now submitted upon the merits. [1, 21 The Jib~iaut shows de1iv~ry to the ship of 42 cartons, each containing 25 cand1e~, all in good condition when packed at "the docks of the Luckenbach Steamship Company" in the city of New York, [980] •consigned to libelant at Seattle, Wash. When received, the candles were mdted, run together, and destroyed for use as candles. The respondent shows that the ship carrying the consignment is “the very highest type of freight vessel. She is above 12,000 tons dead weight, 14 knots speed, built in 1916.” At the time she left New York on the vdyage spoken of she was in general seaworthy condition, properly equipped, manned, and officered, and so continued ■ from port to port throughout the trip. The bill of lading evidencing the contract of shipment provides that the carrier shall not be liable for damages occasioned from heat. The general seaworthy condition of the ship is •established. « “The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport.”- The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. In the Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65, the court said: “The vessel must be able to transport the cargo which it is held, out as fit to carry, or it is not seaworthy in that respect.” In that case perishable cargo — i. e., dressed beef — was shipped. The respondent knew the character of cargo when it accepted it, and the court held that refrigerator facilities to carry fresh meat into a hot climate were a part of the seaworthiness of the. ship, and that, when the refrigerator plant failed to function within three hours of sailing, a presumption of unseaworthiness, at the time of sailing would obtain. In the instant case there is no testimony that the character of the cargo in issue was Called to the attention of the ship, nor is it contended that special facilities for carrying the cargo are required. [3] The court judicially knows that the heat is greater through the Canal Zone than it is in either the ports of New York or Seattle. The condition of the cargo at point of destination in this case is attributable to the excepted peril, and, such fact being established, the burden is upon the libelant to show negligence on the part of the ship.1 In Shaw Supply Co. v. Nelson Co., 124 Wash. 305, 214 Pac. 19, the respondent failed to show damage due to the exceptive clause. The libelant has not sustained the burden. Decree for respondents. Footnotes [1] Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; The Henry B. Hyde, 90 Fed. 114, 32 C. C. A. 534; The Glenlochy (D. C.) 226 Fed. 971; The Dolbardorn Castle (D. C.) 212 Fed. 565. [2] $cs?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [3] ~z~For other cases ccc came topic & KEY~NUMBER In all Lccy-Numbered Digests & Indexes