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might have been done with small packages. It was held that the custom was a reasonable one and protected the charterer.1
A merchant contracted by a charter-party "to load a full and complete cargo of sugar in cases, or other lawful merchandise, with sufficient bags for broken stowage, at a certain rate of freight per ton for sugar, and for other produce a rate proportionate to sugar in casks, with sufficient bags for broken stowage, agreeably to the custom of the port of loading." By the custom of the loading port, a given quantity of cotton was to be taken as equal to a ton of sugar. The charterer filled the ship with cotton, putting on board a reasonable quantity of stone for ballast. It was held, that the stipulation for "sufficient bags (of sugar) for broken stowage" was only applicable to a cargo of sugar in cases or casks; Willes, J. saying "we think that the charterers were not bound, under the terms of this charter, to ship 'sufficient bags of sugar for broken stowage,' with any other cargo than sugar in cases. The charter attaches this obligation to the shipment of a cargo of sugar in cases, for the obvious reason that cases do not fully fill the ship and require bags, which are more flexible, for the broken stowage. It seems to us that this obligation did not attach to a cargo of cotton or of other produce which the charterers were at liberty to load.'
1 Cuthbert v. Cumming, 24 L. J. Ex. 198, 310,
It is the duty of the shipowner to see that his Dunnage. ship is furnished with proper and sufficient dunnage, and that she is in a fit state to receive and carry
Dunnage is loose wood, mats, battens and other articles placed against the sides and bottom of the hold, and round the masts and other parts of the vessel with which the cargo may come into contact; and above the ballast to save the cargo from the effects of leakage, sweat, rust, the collocation of injurious goods; and to enable the drainage and leakage of the ship to pass harmlessly to the bilges. The quantity and species of the dunnage required and necessary to preserve the cargo from damage, depends in each case upon the nature of the cargo and the different parts of the vessel in which it is stowed and varies in different trades.
If from special circumstances in the construction of the vessel she requires special appliances to preserve the cargo from sea damage, the owner is bound to provide those appliances, and will be liable for damage to cargo arising from the want of them, such as from imperfect and improper dunnage.
Thus, where a cargo consisting of chopped and ground bark, was shipped at Adelaide on board the chartered ship "Marathon." The charter-party
guaranteed "that the vessel was classed A 11," and contained the following stipulations, that "being tight, staunch, and strong, with masts and rigging in good order, and every way well fitted and equipped for the voyage, and so to be maintained
by the owners or their agents while under this charter, should load a full and complete cargo of ground bark in bags, with sufficient loose chopped bark for broken stowage amongst ground bark only and being so laden and dunnaged in accordance with Lloyd's rules," &c. Bark was stowed between decks without any dunnage, a certain amount of loose chopped bark being used to fill up between the bags. The lower hold was dunnaged in the bottom and wings, but the dunnage was not brought up to the main deck, so that the upper tiers of bags rested against the lodging knees in the lower hold. The level of the lower deck was only between one and two feet from the water when the ship was laden and lying on an even keel. The Trinity Masters made a report to the Court as follows:-"We have carefully compared the evidence in the case of the American barque Marathon,' and we have come to the conclusion that the lower hold appears to have been fairly dunnaged, but altogether wanting in the 'tween decks, in which there should have been scuppers. She is a badly fastened ship, leaking much in her topsides, waterway seams, deck, and generally, which, when she strained in bad weather, admitted large quantities of water, which, falling on the upper part of the lodging knees, poured over them into the hold beyond the inner surface of the dunnage, damaging the cargo.
Sir R. Phil limore said respecting the dunnage, that:-"In the 'tween decks there was no dunnage. The Marathon, 4 Asp. M. L. C. 75.
In the lower hold the dunnage was in quantity sufficient, but being composed of chopped bark, was bad for the purpose, acting as a sponge, conveying the water to the cargo. The Elder Brethren are decidedly of opinion that there should have been scuppers in the 'tween decks, and that the want of them was one of the causes of the damage to the cargo in the lower hold. I must here express my entire agreement with that, and also that it was not competent to the carriers of this cargo to use any portion of it as dunnage. On the whole I am of opinion that it is proved that the damage was occasioned by the want of proper appliances on board the carrying vessel, especially the want of proper scuppers, and the imperfect and improper dunnage, as well as the inadequate fastenings."
A cargo of wheat was shipped by charterers on board the defendant's vessel, under a charter-party and bill of lading, both of which excepted "
perils of the sea
of the .
and other accidents of navigation, even when occasioned by the negligence .master." The charter-party referred to in the bill of lading under the words, "all other conditions as per charter-party," contained the conditions, "vessel to be properly stowed and dunnaged, and certificate thereof, and of good general condition, draft of water and ventilation, to be furnished to charterers from II. II. Watson, surveyor." Under this condition a certificate was furnished by the surveyor which did not specially mention dunnage, but stated that the vessel "is
chartered vessel for
entitled to full confidence, can carry a dry and perishable cargo, and is a good risk for underwriters." During the voyage, in consequence of heavy weather, a rivet in the foot of a bulwark stanchion worked loose, and, through the leak thereby occasioned, the cargo was damaged by seawater. After the weather improved, the master negligently omitted to take sufficient steps to stop the leak, and the cargo was further damaged by sea-water. Owing to the dunnage of the waterways in the 'tween decks being insufficient to allow the water coming from the leak to escape to the bilges, the cargo in the lower hold was still further damaged by sca-water. In an action for damage to cargo, brought by the plaintiff who had purchased the cargo in transit, against the shipowner: Held, that the shipowner was not liable either for the original source of damage to the cargo, or for the damage arising from the continuance of the leakage not being prevented; for, the inflow of water being a peril of the sea and an accident of navigation, the negligence of the master in respect of it was covered by the exception in the bill of lading. Held, also, that the shipowner was liable for the additional damage caused by the dunnage being insufficient, as the certificate of the surveyor was not conclusive.1
The "Storm Queen," a strong, well built North American ship, was chartered in London to load a full cargo, "not exceeding what she can reasonably goods through stow and carry, the cabins to be reserved for owner's
1 The Cressington, L. R. (1891) P. 152.