NEILSON v. COAL, CEMENT & SUPPLY CO.

(Circuit Court of Appeals, Fourth Circuit. May 15, 1903.)

No. 466.

1. ADMIRALTY PRACTICE-PRESERVING TESTIMONY FOR USE ON APPEAL.

At the hearing of a cause in admiralty before the court, the testimony should be taken down in full for use in the appellate court in case of appeal. If there is no official stenographer, one should be procured by counsel under the sanction of the court.

2. SHIPPING-CARRIAGE OF GOODS-IMPLIED WARRANTY OF FITNESS OF SHIP. In every contract of affreightment between a shipowner and shipper, there is an implied warranty that the ship is seaworthy at the beginning of the voyage for the particular cargo to be carried.

3. SAME-DAMAGE TO CARGO-UNSEAWORTHINESS.

Evidence held to sustain the finding of a trial court that damage by water to a cargo of cement carried between decks on a voyage from New York to Wilmington, N. C., was due to the defective condition of the calking of the upper deck, which existed at the commencement of the voyage, and rendered the vessel unseaworthy with reference to the particular cargo.

Appeal from District Court of the United States for the Eastern District of North Carolina, at Wilmington.

For opinion of District Court, see 116 Fed. 80.

Thomas Evans, for appellant.

George Rountree, B. G. Empie, S. M. Empie, and J. O. Carr, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and McDOWELL, District Judge.

SIMONTON, Circuit Judge. This case comes up on appeal from the District Court of the United States for the Eastern District of North Carolina, in admiralty.

The three-masted schooner Nellie Floyd, up for a voyage from New York to Wilmington, N. C., on the 9th of March, 1902, received on board 8,000 bags of cement and 1,000 barrels of cement, consigned to the Coal, Cement & Supply Company. The bill of lading stated the receipt of the cement in apparent good order and well conditioned; noting 100 barrels stained and damaged, to be delivered in like order and condition, dangers of the sea, fire, and collision excepted, to the consignees at Wilmington. The voyage was accomplished, and the cargo taken out of the schooner. Upon delivery it was ascertained that 62 barrels and 1,861 bags of cement, not including those noted in the bill of lading, had been damaged by water and rendered perfectly useless. Thereupon the Coal, Cement & Supply Company filed its libel against the schooner for the value of the damaged cement, for the sum of $936.65. On the other hand, H. Neilson, the master of the schooner, filed his libel against the Coal, Cement & Supply Company for the balance due on freight contracted for under the bill of lading, for $99.55, and for seven days' demurrage caused by the failure to pay the stipulated freight, at $40 per day, $280 in all, $349.55.

The causes were consolidated. The testimony was taken before the court, in the notes of the presiding judge, and after argument the court entered a decree for the original libelants, practically dismissing the cross-libel of the respondent to the original libel. An appeal was allowed, and the cause was removed into this court on assignments of error. Pending the appeal the respondent in the original libel (appellant here) applied to the district judge for his notes of the testimony. Receiving these notes and examining them, he conceived that certain important testimony had not been noted. He called the attention of the judge to these omissions, and for reply was informed that the notes were not full, were not intended to be a part of the record, and were taken simply for his own convenience. Thereupon the proctor of the claimant attempted to prepare a minute. of the testimony taken, and submitted it to the counsel for the libelant, who refused to admit it. He then applied to one of the circuit judges for leave to re-examine the witnesses. This application was granted under the express condition that this court be asked for permission to introduce the new testimony so taken, and, if such permission was refused, the costs of taking the testimony be paid by the appellant. This testimony was taken, and comes up with this record.

At the hearing the appellee moved to dismiss the appeal upon two grounds: First, because the testimony taken at the hearing below. was not reduced to writing, and so does not and cannot appear in the record. It is alleged, and not denied, that his honor below took notes of the testimony as it was delivered, but that these notes were not full, and, indeed, were not intended to be a part of the record. It is a bad practice to take testimony at the hearing of a cause in admiralty, without taking proper precaution that it be taken accurately and in full. If there be no official stenographer in attendance on the court, counsel should take measures looking to a full stenographic report of the testimony under the sanction of the court. This is often done, and the practice meets our approval. When such a cause comes here, we pass on the facts as well as the law, and this court cannot do this in the absence of or with an imperfect report of the evidence. The second ground for dismissing the appeal is that the testimony taken pending the appeal, being practically a re-examination of the witnesses, should not be heard.

The motion to dismiss having been argued and submitted, before a decree thereon, with the consent of counsel, the case was restored to the docket for the argument upon the merits, upon an agreed statement in writing of the facts, bearing the approval of the district judge. It appears that the schooner Nellie Floyd, upon her voyage from New York, encountered severe weather, with high winds and waves; the latter occasionally sweeping her deck. When she reached Wilmington, she was duly surveyed, and upon the survey it was found that her hatches had been carefully and properly secured, and that no water had entered the hatches. There was little or no water in her hold. It was also in evidence that all the cargo below decks was uninjured by water, and that only the cargo between decks was damaged. It also appears from the testimony that some of the seams of the deck

were open, and it was observed when she reached Wilmington that rain water fell freely through the deck into between-decks. The preponderance of the evidence is that the deck was not properly calked, or, if it had been, the calking had become imperfect. There is no doubt that, so far as her hull is concerned, the schooner was seaworthy, and could have carried safely a cargo not susceptible to injury by water. But by the bill of lading she had contracted to carry safely a cargo of cement, peculiarly susceptible to injury from water. In all contracts of affreightment, there is an implied warranty that the ship is seaworthy. It is a contract between the vessel and the shipper, and the contract with the shipper is that the vessel is seaworthy for the special cargo which he ships. Steel v. The State Line S. S. Co., 8 Appeal Cases, 72; The Northern Bell, 9 Wall. 526, 19 L. Ed. 746. It may be that for many-perhaps for most-purposes a vessel may be seaworthy. In this particular case, as shown by the record, she could safely carry a cargo of lumber. But was she seaworthy in carrying a cargo of cement between decks? It would be enough to excuse the vessel if this seaworthiness existed at the time the voyage had begun. If, by stress of weather, or other causes in the exception of the bill of lading, her seaworthiness was diminished, the vessel would not be liable. Now, it is clear that when she reached Wilmington the deck of the schooner-her upper deck-was leaking. She was an old vessel, and her calking was found imperfect. Was this the case when she left New York? There is no direct evidence on this point. The only testimony is that generally she was seaworthy. The stress of weather to which she was subjected did not strain her timber, nor open the seams of her hull, or disarrange her hatches. There is nothing to show that the tempestuous voyage opened the seams of her upper deck. It is reasonable to conclude that the condition of things that existed at Wilmington must have existed at her port of loading. The trial judge found this to be the case, and, in the absence of evidence to the contrary, we adopt his view of the matter. The decree of the court below is affirmed.

THE REBECCA.

(Circuit Court of Appeals, Fourth Circuit. May 5, 1903.)

No. 479.

1. COLLISION-SCHOONERS TACKING IN NARROW STREAM-NEGLIGENCE OF OVERTAKING VESSEL.

Evidence examined, and held to establish by a preponderance of proof that a collision between two schooners which were tacking in a narrow stream in the daytime was due to the negligent navigation of the one which, as the overtaking vessel, was bound to keep out of the way, in allowing herself to come too close to the other, striking the latter as they came about at the end of a tack.

Appeal from the District Court of the United States for the District of South Carolina.

Julian Mitchell, Jr., for appellant.

J. P. K. Bryan, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and WADDILL, District Judge.

SIMONTON, Circuit Judge. This case comes up on appeal from the District Court of the United States for the District of South Carolina, sitting in admiralty. It is a case of collision between two schooners, the Maggie and the Rebecca, on the morning of the 9th October, 1901, about 9 o'clock a. m., on a perfectly clear day. These two schooners were in the Dawho river. This is a navigable stream, part of the navigable waters of the United States, one of the links in the inland navigation between Virginia and Georgia, whose course is almost parallel with the ocean. The wind on this morning was from the northeast. The two schooners were tacking up the stream, both on their way to the port of Charleston, the wind being almost ahead. They had each of them made two tacks. On the third tack they came into collision, the Maggie receiving a blow on the port side abaft of the after rigging. From the effect of this blow she filled and sank. The libel was filed by the master of the Maggie seeking to hold the Rebecca for the damages which he sustained. The case was heard before the District Judge, the witnesses appearing and testifying before him. He came to the conclusion that the collision occurred from inevitable accident and dismissed the libel. An appeal was allowed, and the cause is here on assignments of error.

The testimony is conflicting to a degree, the crews and masters of both vessels contradicting each other in almost every material fact. Both sides evidently recognized that the case would turn upon the fact which of these two schooners was the overtaking vessel. The testimony on each side is directed to this point.

The case to which the libelant directed his testimony, and which he sought to maintain, is that these two schooners tacking in this narrow river were very close together, the Maggie leading; that when they came about, having run out their tack, they were so near together that he could put out his hand and touch the Rebecca. In coming about with their sails shaking in the wind they collided, the collision having been caused by the proximity of the Rebecca, unwarrantable under the circumstances, as she was the overtaking vessel.

The case of the Rebecca, testified to by her master and one of her crew, the rest of the crew not testifying, was that the Rebecca, being the heavier vessel, was leading on that tack. That she came about before the Maggie and was on the new tack, but before she had proceeded any distance on the tack she touched on a bank which retarded, if it did not destroy, her speed. Whilst she was on this bank the Maggie by this time had run out her tack and had come about bearing down on her, striking her hull, and then the two schooners came together. The impact struck a bulkhead on the Maggie, opened her seams, the water poured in, and sank her. Two facts are testified to on both sides. The one is that the impact of

the schooners was very light; the other is that no sign of a blow was apparent on the Rebecca, except, perhaps, a little scraping of her paint.

In describing how the collision occurred, the witnesses for the Rebecca say that, whilst she was impeded on the bank, the Maggie bore down on her; one of them, the master, says that the Maggie had all the headway on her because the whole of her side was held down underneath the water; the other witness, Holmes, says that the Maggie tacked and came down towards us, all her sails drawing. Now, both sides agree that the impact of the two vessels was light. It was undisputed that no bruise appeared on the Rebecca, and that the first impact was on the sides of the two schooners. It would seem impossible that this evidence on the part of the Rebecca can be true. If the Maggie came down on the Rebecca whilst she was slowly extricating herself from the bank, all the sails of the Maggie set and drawing, with such speed on her as to put her side under water, the Maggie having a full cargo, the impact from the momentum would have been heavy. Yet Holmes adds that the Maggie, coming this way, struck the Rebecca one and a half feet aft her forward rigging and broke nothing on either vessel. Only when their sterns came together, after the Maggie was shaking in the wind, was any damage done. On the other hand, there is no necessary improbability in the case made by the Maggie. The place in which the schooners were tacking was a narrow river, they were both on the same tack, both about to come about as they were rapidly approaching the river bank. To come about they had to get into the wind, their sails shaking, having headway from the momentum at the time of going about. If they were very close together nothing is more probable than a collision. This witness for the Maggie says that at the time of the collision the Maggie was the overtaken vessel, being ahead, and that it was the duty of the Rebecca, the overtaking vessel, to keep out of her way. Rule 22. On this point they are contradicted by Bernard, master of the Rebecca, and Holmes, one of the crew. These witnesses say that the Rebecca was ahead. But two witnesses connected with neither vessel, who were on schooners in the same river at this same time, Washington, on the Hamilton, and Polite, on the Jubilee, both swear that the Maggie was ahead of the Rebecca. Besides this, Smith, a seafaring mechanic, who examined the Maggie very shortly after the accident, testifies as to the character of the blow which he found on the Maggie. He says that it "was straight in, and looked as though one vessel had a great deal more headway on it than the other, because you could see where the other dragged along going forward." If this be so-and Smith is uncontradicted on this point-then the Maggie must have been struck by a vessel moving from behind her against her. In the mass of contradiction which admiralty cases disclose, and to which this case is no exception, a fact like this, which speaks for itself, the character of the blow, goes far to create a preponderance of the evidence and to relieve the situation. There is another fact to which witnesses on both sides testify, which seems to bear out the witnesses for the Maggie, that when the collision took place both vessels were almost stationary. All