NORTHWESTERN TRANSP. CO. v. LEITER, 107 F. 953

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The course given to the trial resulted in the introduction and the offering of a mass of evidence — particularly about the construction and seaworthiness of the Hartnell — which, once the cause of the loss had been developed, became totally irrelevant and immaterial. The essential facts are within a narrow compass.

The clear weight; of the evidence which has any bearing on the question of liability shows, and tiie fact is practically admitted, that the injury to the cargo occurred while the barge was in the river at Chicago, between January 21st, the date of loading, and April 9th, when, upon the opening of navigation, the voyage to Buffalo, which the shippers had designated as the port of delivery, began.

It was left to the jury to determine whether the damage was caused in port or on the voyage, upon instructions to the effect that while the vessel was in port the owner was bound to exercise only the ordinary care of a warehouseman, and while on the voyage the obligation was that of a common carrier, except as limited by tbe waybill. The basis of the contention that the court should have directed a verdict for the defendant is that there was no evidence of negligence on the part of the owners while the barge was in port at Chicago.

The terms of the bill of lading and the authorities cited lend strong support to the proposition that the question of negligence should have been excluded from the case, the liability of the plaintiff in error being established by a special contract which stipulated for a delivery of the cargo in good order, specified risks excepted; but it is not found necessary to pass upon that point. The evidence to justify the submission of the question of negligence to the jury was not only ample; it was so clear that, if a contrary verdict had been returned, it would have been the duty of the court to set it aside.

The court might well have directed the verdict which the jury found. The cause of the injury was a leak from a small drainage pipe which passed through the boiler deck into the cargo hold immediately beneath the donkey pump, and ran under the deck for the distance of about fourteen feet towards the port side of the vessel, with a fall of six or eight inches, until it met and was tapped into a scupper pipe, which, coming down vertically through the boiler deck at the-port side, had an outward discharge.

The draft of the vessel, as loaded,, was such as to bring the portion of the drainage pipe under the deck below the surface of the river, and no means were employed to prevent the inflow of water. The result ought to have been anticipated. The water in the drainage pipe, about the first of February, froze and burst the pipe, and through a fissure near six inches in length water from the river flowed into the cargo fór more than a month before the leak was discovered. It was inexcusable, not to say gross negligence, that the discovery was not made promptly and before serious harm had resulted.

There was ample warning.

The shipkeeper in charge testified that it was about nine or ten days after the boat was loaded before he noticed “any indication of a leak”; that he then saw water “coming down through her timbers”; that he “did not think it was coming through on the cargo”; that he “thought the water was coming down through the top of the water bottom”; that “probably there had been ice in there that thawed”; that on the 8th of March, at the second pumping out of the well, he “noticed an odor from the wheat, a fermentéd, sour smell,” and then, taking a lantern, he opened the manhole and went into the hold, and when there could hear the noise of running water. “Up to that time,” he testified, “I had no knowledge or notice that the water was coming in contact with the cargo.” ■His opinion of notice was quite inadequate.

He had notice upon which his own sense of prudence, in proper regard for the interests of his employers, should have impelled him to an immediate search for the origin and course of the water which he saw running, instead of contenting himself with a mere supposition, of the reasonableness of which no evidence was offered. As the representative of the owners of the vessel, he was bound to have and to exercise all the intelligence and prudence required of them.

He therefore knew of the drainage pipe, filled with the water of the river and all the while exposed to the cold of the season, and, when he found flowing into the well of the barge water which might be coming from a break in that pipe, — quite as likely as to be coming “from the bilge ceiling,” — his plain duty was then, as Anally he recognized it, to make the examination necessary, and not difficult, to determine the truth, or at least to know that the cargo was not being harmed.

The only excuse offered for the failure is the custom of fastening down the hatches of loaded vessels in order to prevent tampering with the cargoes; but, if pertinent, that would be plainly an inadequate excuse for permitting the destruction of a cargo by hatch-hidden causes. It is not a pertinent excuse, because the examination could have been made upon the first warning, as it was finally made, by means of the manhole, without disturbing the hatches.

The verdict and judgment rendered are so clearly right upon the merits. — which the motion for a peremptory charge has compelled us to examine — as to deprive the other questions sought to be raised of material significance. We have, however, looked far enough into them to be satisfied that on any theory of the case they are unimliortant. The judgment below is affirmed.