
    H. N. HARTWELL & SONS, Inc., v. NEPTUNE LINE, Inc.
    (Circuit Court of Appeals, Second Circuit.
    May 4, 1921.)
    No. 179.
    Shipping <®=141(3) — Evidence held not to show sinking of vessel was due to unusual weather.
    Evidence tliat a barge of coal sank while the tug in charge was deviating to a port of refuge, because of a predicted storm, but that at the time the wind in the vicinity was blowing not to exceed 22 miles an hour, and that the master and crew of the barge were performing their routine duties without any indication of apprehension until shortly before it sank, held not to show the sinking was due to unusual weather, so as to be within the exception in the bill of lading of dangers of the sea.
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    Appeal from the District Court of the United States for the Southern District of New York.
    Dibel by H. N. Hartwell & Sons, Incorporated, against the Neptune Dine, Incorporated, to recover the value of a cargo of coal. Decree for libelant, and respondent appeals.
    Affirmed.
    Foley & Martin, of New York City (William J. Martin and George V. A. McCloskey, both of New York City, of counsel), for appellant.
    Harrington, Bigharn & F,uglar, of New York City (D. Roger Englar and R. H. Loughran, both oí New York City, of counsel), for appellee.
    Before WARD, HOUGH, and MANTON, Circuit Judges.
   WARD, Circuit Judge.

This libel was filed to recover the value of a cargo of coal on the barge Western Belle, which sank and became a total loss while in tow of the tug Luzon on a voyage from Sewall’s Point, Va., to Providence, R. I. The only exception in the bill of lading was the dangers of the sea, and the sole defense set up in the answer was that the barge sank in consequence of a violent storm. The District Judge entered a decree for the libelant, without an opinion, either oral or written.

The barge certainly did not sink because of any unusual weather. It is true that a northeast storm was predicted on the day the barge sank, and that the tug for that reason was deviating to the Delaware Breakwater as a port of refuge. But between Saturday, September 22, at 11 p. m., and 7:30 p. m. of September 23, when the barge sank, the wind as recorded at Delaware Breakwater, which was about 22 miles north and west of the place of sinking, and at Cape May, further to the north, and at Cape Henry, to the south, indicated only moderate to strong breezes by the Beaufort scale. The master and crew performed their routine duties without any indication of apprehension until immediately before the barge sank, and at no time gave any signál of distress to the tug.

The decree is affirmed;  