years experience at sea, testified that the cans as packed were inadequate for an on-deck shipment. It was his opinion that tarpaulins would have been protective in a degree, but that the cases would become wet, and that the constant pitching and rolling of the ship and movements of the cargo would chafe the tarpaulins. He declared that the cargo did not interfere with scuppers and freeing ports and that it was properly stowed.
Others testified that tarpaulins lashed around this cargo would wash away at sea, since it is difficult enough to secure hatch covers even when strung through ringbolts and battened down.
Scientific information was introduced regarding the corrosive effects of salt water on tin by an analytical chemist and a doctor of chemistry. Chemical analysis by tests showed corrosion in 10 days and pronounced corrosion in 20 days, and it was pointed out that while the sawdust packing was an effective cushion, it promoted corrosion of the tin because it retained and absorbed the moist sea spray.
Libelant urges upon the court the application of Pioneer Import Co. v. The Lafcomo, supra (49 F.Supp. 562). Therein, the libelant shipped cases of lily of the valley pips 'on deck at shipper's risk' and the court found the agreement of the parties contemplated stowage on the forward deck with a condition specifically made that the cargo should be properly covered with tarpaulins. The cases were stowed on the wings of the hatches, and blocked freeing ports so that the lower tiers of the stowage were submerged in sea water for considerable periods of time.
Herein, there is in evidence a copy of a letter from C. J. Giraud & Co., addressed to Joseph Catoni & Co., with the following postscript:
'We rely on you to supervise the proper stowage of these 3000 cases on deck. We have no doubt that they will be shipped on some aft well deck and will be efficiently protected by tarpaulins properly battened down. We rely on you in this matter.'
Libelant argues that the cited case is controlling, but we see material differences: First, we do not believe that the above postscript in the letter from C. J. Giraud & Co. is a condition of the contract of shipment binding upon the ship, her owners or the charterers. Such request at best contains only words of hope and desire not rising to the level of a binding contractual condition. Our second differentiation is a factual one because it appears that in the Lafcomo case the means of drainage were obstructed, while in this case there was no obstruction.
The evidence shows that the Ponce encountered heavy seas and winds of Force 8, during the monsoon season. It is not unusual for decks to be awash in such weather, and thus our inquiry is whether the absence of tarpaulins constitutes negligence. We believe not. The expert witnesses gave convincing testimony of the difficulties to be encountered in lashing down tarpaulins, and even libelant's witness admits this. Furthermore, the expert chemists were of the opinion that tarpaulins would have retarded evaporation of the salt spray lodged in the sawdust packing and would have accelerated corrosion. We, therefore, conclude that the absence of tarpaulins is not a contributing factor.
With reference to the contention that the absence of sufficient dunnage constitutes improper stowage we think the result speaks for itself and answers this argument. On discharge investigation showed that the tins were indiscriminately pitted throughout -- on the foredeck and afterdeck, and in the top, middle and bottom tiers. We may add to this the testimony indicating that deck drainage was unimpaired by the stowage.
Our attention has been called to the recently decided case of Globe Solvents Co. v. S. S. California, supra, which involves an on-deck shipment of lacquer in drums and cases from Philadelphia to San Diego, California. When the cargo arrived at its destination many of the cases were extensively water-stained, rusted and pin-holed. In this case the court was convinced that the use of dunnage 8 inches high under the cargo would have prevented it from getting wet. In our case we are convinced that neither dunnage nor the construction of a 'false deck', as suggested by Captain Berg, plus the use of tarpaulins would have prevented the cases from getting wet in the normal course of the cruise from Iskenderon to Camden. Our case convinces us that this cargo was bound to come in contact with moisture and that the tin containers were simply inadequate to resist the corrosive effect of the water.
Proof was offered to show that the law and regulations of Turkey prohibited the exportation of dunnage and tarpaulins. This testimony cannot affect the decision in this case because it is found that the damage incurred was not due to failure to use this material but rather to the inadequacy of the tin containers in which libelant's product was shipped under the circumstances of this voyage. The court concludes that the stowage was proper and that the damages occurred because of the usual, expected hazards to an on-deck shipment. It appears that libelant was willing to take this risk, and for want of more suitable containers it chose to make use of tin cans which proved inadequate. If goods, as they are wrapped or cased, are not fitted to endure the ordinary hazards of the voyage the ship is not liable. 46 U.S.C.A. Sec. 1304(n); see Bache v. Silver Line, 2 Cir., 110 F.2d 60. The libel and petition impleading respondent are dismissed.
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