
    THE SINTRAM. MOSLE v. THE SINTRAM.
    (District Court, S. D. New York.
    December 18, 1894.)
    Carriage of Goods — Damage to Tea — Leaks in Water Ways — Seaworthiness — Sea Perils — Harter Act.
    Tiie skip S., upon a voyage from Hong Kong to New York around Cape y Horn, had for 20 days rough seas, aft gales, and much rolling and shipping of water, during which the seams of her water ways began working and took in some water, causing a comparatively small amount ol’ damage to a cargo of tea stowed in the between decks. Upon evidence of careful inspection before the voyage was commenced, both by the owners and by the insurers of cargo at iiong Kong, and of ihe high rating and general staunchness of the ship, held (1) that Ihe sea perils shown were an adequate cause for the leaks in the water ways, consistent with seaworthiness at the beginning of the voyage, and that the tea damage, was, therefore, to be ascribed to sea perils within the exception of the bill of lading; (2) that the evidence showed “due diligence” in ihe carrier, within the third section of the Harter act (2 Supp. Rev. St. 81).
    This wtts a libel by George W. Mosle and others against the ship Sintram to recover for loss of a cargo.
    Wing, Bhoudy & Putnam and O. 0. Burlingham, for claimants.
    George A. Black, for libelant.
   BilOWA, District Judge.

On the arrival of the ship Sin tram at this port on the 8th of January, 1894, with a cargo of nearly 28,000 boxes of tea from Hong Kong, some 800 or 400 were found to be wafer-stained on the outside so as to require reconditioning, and about as many more had the contents also somewhat damaged by sea. water, and were sold as damaged. The claimant pleads sea, perils, and the Harter act (Act. Feb. 13, 1893; 2 Hupp. Rev. Ht. 81), in defense.

The tea was stowed in the between decks. The damage was to the boxes along the sides of the ship, and is shown to have come from sea water taken in through the water ways. 'No claim was made until several months after the arrival of the vessel, and after all the witnesses on the ship had been scattered except ihe master. Prom his deposition, as well as from the log, it appears that the ship, having a light cargo, was four feet higher in the wafer than with an ordinary heavy cargo; that in coming around Gape Horn, and previous thereto, the shij) had for 20 days very heavy seas, shipping considerable water, and with aft gales, which caused a good deal of rolling and straining, so as to set ihe water ways to working, which resulted, in taking in some water. The master endeavored to correct this .so far as possible hv caulking in the water ways twice.

Even under the lav/ as it existed previous to the Harter act, I think the explanation of this damage properly brings it under sea perils, within ihe exceptions of the hill of lading. And the evidence also justifies the conclusion not merely that the owners used all “due diligence to make the ship seaworthy” within the terms of 1h<> Harter act, hut that the ship was seaworthy at ihe time of sailing, having reference to the cargo and the contemplated voyage.

Though the owner formerly warranted tin; absolute seaworthiness of ihe vessel (The Edwin I. Morrison, 153 U. S. 210, 34 Sup. Ct. 823), this absolute warranty of seaworthiness does not mean a warranty that neither ship or cargo shall suffer damage on the voyage; nor exclude sea perils, and the damage that may arise therefrom. It means only that the ship is in all respects reasonably fit, for the voyage, i. e. “compel ent to resist all ordinary action of the sea” (per Mr. Justice Curtis, Dupont de Nemours & Co. v. Vance, 19 How. 162. See, also, The Titania, 19 Fed. 105-108, where this subject is considered at length; The Rover, 33 Fed. 515, affirmed 41 Fed. 58; The Exe, 52 Fed. 155; and see The Allie & Evie, 24 Fed. 749.

The. evidence shows all reasonable and customary care and diligence to make the ship sufficient, so far as human foresight could perceive before sailing; that the regulations in that regard- at Hong Kong are among the most stringent; and that the surveyors of the insurers of cargo inspected the vessel and suggested nothing further to be done; and that she rated in the highest class. The water ways and the break of the poop are places peculiarly liable to sustain injury by straining in heavy weather, and are always the first to show signs of working and liability to take in water. Leaks soon happening in -ordinary weather are presumptive evidence of unseaworthiness at the time of sailing. Cort v. Insurance Co., 2 Wash. C. C. 375, Fed. Cas. No. 3,257; Higgie v. American Lloyds, 14 Fed. 143; The Gulnare, 42 Fed. 861; Hewlett v. The Millie R. Bohannon, 64 Fed. 883. But where; the evidence shows that reasonable care had been exercised to make those seams tight, and that the ship is in other respects tight and staunch, and shows general efforts to make her in all respects seaworthy, comparatively small damage arising from some leaks in the water ways first appearing after continued heavy seas and rolling, and shipping water, is insufficient to overcome general evidence of seaworthiness at the commencement of the voyage, and is ascribed to sea perils; because a specific and adequate cause is shown consistent with seaworthiness at the beginning of the voyage (Watson v. Insurance Co., 2 Wash. C. C. 480, Fed. Cas. No. 17,285; Lawrence v. Minturn, 17 How. 100; Pyman v. Von Singen, 3 Fed. 802; The Orient, 16 Fed. 936; The Titania and The Rover, Tit supra, and cases therein cited; The Thomas Melville, 31 Fed. 486, affirmed 36 Fed. 709; 2 Arn. Ins. [6th Ed.] 679;) and such I find to be the fact here, despite the opinions- of some of the witnesses to the contrary.

The libel is dismissed, with costs.

On Motion for Reargument.

(Dec. 31, 1894.)

On the motion for reargument of the above case, nothing is pointed out that I have previously overlooked, either as to matters of fact, or of law.

The question of seaworthiness a.t the time of sailing was in this case wholly a question of fact, as it is in most cases. The decision of that question must depend upon the appreciation by the court of all the facts bearing upon it. In this case I have found as a fact that there was no latent defect but that the ship was seaworthy when she sailed, both as respects her water ways and about the bréale of the poop; because the proof showed that she \yas a sound and staunch ship; and that as respects these water ways and the break of the poop, she was carefully inspected and recaulked and tightened up just before sailing, in a way to make her “suitable,” and “reasonably sufficient” for* tire voyage, which is all that seaworthiness means. It is not a warranty against strains, or sea perils. There is no question, therefore, of “latent defects” in the case, as a question of law, or as respects the “warranty” of a common carrier, where sea perils are not excepted; and hence many of the cases cited by counsel are inapplicable. Here sea perils were excepted; and the main question considered by me, aside from the Harter act, was one of fact, viz., whether the subsequent leaks were sufficiently accounted for by the weather and tempestuous seas, so as to be properly ascribed to sea perils, rather than to unseaworthiness-on sailing. I have found that they were; and I see nothing in the points submitted to change that opinion. The log and the master’s deposition seem to me to require that conclusion; and there is no proof of any facts to the contrary.

In the case of Hewlett v. The Millie R. Bohannon, 64 Fed. 883, decided about the same time as -The Sin tram, I held that the leaks, under circumstances altogether different, were evidence of unseaworthiness at the time the vessel sailed, five days before. There is not the least difference in the rules of law applicable to these cases; nor are they in any degree incompatible with the cases cited from, the supreme court, or the former decisions of this court.

Motion denied.  