ISTHMIAN S. S. CO. v. MARTIN. The ENSLEY CITY, 170 F.2d 25

PARKER, Chief Judge. This is an appeal by the Isthmian Steamship Company, owner of the Steamship Ensley City, from a decree in admiralty holding it liable for damages to a cargo of licorice extract. The facts are fully set forth in the opinion of the District Judge, 71 F.Supp. 444, and need not be repeated here. The holding as to liability on the part of the steamship company was based on a finding that the cargo was improperly stowed in the vessel and that, although it was not in good condition when loaded, its condition was made worse by the improper stowage, with resultant damage to the cargo owner.

It is contended on appeal that the damage to the cargo was due to its condition when loaded and not to negligent stowage and that, at all events, the cargo owner cannot recover because he has not proven that the cargo was in good condition when loaded. We do not think that upon the record before us we would be justified in disturbing the finding by the District Judge that the cargo was damaged as the result of improper stowage.

The question is a pure question of fact, and the findings of the judge are amply supported by the testimony of witnesses whom he saw and the value of whose testimony he was in better position than this Court to appraise. The temperature records of prior voyages, which were excluded by the trial judge, might very well have been admitted in evidence; but, since the conditions were not shown to be the same, they have but little probative value on the issues before the Court.

We have permitted the taking of additional evidence as to the shipment of licorice extract on the steamship Nonsuco; but, instead of weakening, this has confirmed the conclusion arrived at on the original evidence. Although the extract loaded on the Nonsuco was in just such condition as that loaded on the Ensley City at the time of loading, it was in much better condition than that on the Ensley City at the port of discharge; and since the conditions of the voyage were substantially similar, it is a fair inference that the shipment on the Nonsuco arrived in better condition because it was properly stowed.

It is true that upon the arrival of the Nonsuco, the licorice was in such condition that the boxes had to be pried apart with crowbars; but it could still be treated as box cargo and could be unloaded with slings. In the case of the Ensley City, the-boxes had gone to pieces and the licorice had fused into a solid mass so that it was-necessary to break it up with pickaxes and chipping hammers, shovel it out of the vessel and recondition it at quite considerable expense.

Its condition upon arrival, we think, was manifestly much worse than that of the cargo of the Nonsuco and was-due to negligence in storing the licorice in the tween decks of the vessel, next to the engine room, when the evidence shows that the bulkhead was so hot that a man’s hand could not be held against it, and in stacking the boxes eight or nine tiers high with bags of licorice on top of these and with no use of dunnage to provide ventilation.

Evidence given in the deposition which we allowed to be taken shows that dunnage was used on the Nonsuco, that the stacks there were only four or five tiers high and that the cargo was stowed in the lower hold of the vessel, where the temperature was lower. The master of the Nonsuco testified that the boxes should . not be stacked more than four or five tiers high, which corroborates the testimony of experts in the lower court, one of whom was an experienced Lloyd’s surveyor, that the cargo of the Ensley City was not properly stowed.

We think that the additional testimony, as well as that first taken, supports the conclusion that improper stowage resulted in damage to the licorice shipped on the Ensley City and that the findings of the trial judge to that effect should not be disturbed.

As to the other contention of appellant, i. e. that there can be no recovery because the cargo was not shown to be in good condition when delivered to the vessel, the answer is that this is no defense when the evidence shows, as it does here, that the cargo was in worse condition when delivered by the vessel than when received, and that this deterioration in condition was due to negligent stowage. Liability for damage due to negligent handling or stowage of cargo may not be avoided merely because the cargo was not in good condition when accepted or was of a character to sustain damage if not handled properly.

The fact that damage to goods arises out of their inherent nature constitutes no defense to the carrier if it appears that the damage would not have occurred but for the carrier’s negligence. Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373; Bank Line v. Porter, 4 Cir., 25 F.2d 843; The Nichiyo Maru, 4 Cir. 89 F.2d 539.

Of course, in making the assessment of damages in this case, nothing should be allowed for such portion of the loss as would have occurred because of the nature of the cargo or its condition when received, without negligence on the part of the carrier, but only for the part of the loss that may properly be attributed to the carrier’s negligence. Affirmed.