McKinlay v. Morrish
THIS was an appeal from the Circuit Court of the United States for the districts of California, sitting in admiralty.
The libel was filed in the District Court for the northern district of California, which after hearing dismissed the libel; and upon appeal to the Circuit Court, the decree was affirmed. The libellants then brought the case to this court.
The facts of the case are stated in the opinion of the court.
It was argued by Mr. Lord for the appellants, and Mr. Brent and Mr. Johnson for the appellees.
The counsel for the appellants contended that the injury did not proceed from the gale occurring shortly after the ship left Liverpool, nor by the heavy weather on the passage around Cape Horn. From that time until the arrival at San Francisco, they met with no heavy weather. The evidence does not show that the damage arose from the sweat of the ship. The perils of the sea not being established, and the cargo being badly damaged, it is for the ship to show everything well done on her part before she can resort to other causes. (See 12 Howard, 280.) The ship was bound to show proper stowage; the evidence is, that the stowage was not proper. The evidence is, that the damage arose from the want of proper caulking, and the leaks thus opened by the heat of the long summer voyage, all which could have been caulked at sea. The evidence is not satisfactory that the damage arose merely from the damp of the soap under the ordinary events of such a voyage.
There is no limitation in the pleadings restricting the libellants in charging the ship as to the cause of the confessedly damaged condition for the cargo. The ship must affirmatively both plead and prove her justification.
The counsel for the appellees contended that the consignees had no right to institute the suit, having repudiated the consignment, and therefore having no interest in the property; that there was no breach of contract on the part of the ship, which was stanch and strong when she started, but met with heavy gales in the Bay of Biscay and at Cape Horn; that the damage to the soap was caused by sweat; that is, by the evaporation of water in the soap, surrounding the boxes with a damp atmosphere; that the soap was an inferior article, and the voyage unusually long.
Mr. Justice WAYNE delivered the opinion of the court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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