Page:Federal Reporter, 1st Series, Volume 1.djvu/73

EIOHAKDS V. HANSEN. 65 �is a valid one, as it fully appears that the evidence introduced by the libellants is sufScient to overcome every presumption in favor of the carrier, and to show that the damage was occasioned by mere want of foresight, care and diligence. �2. Nor is there any better ground to support the second defence. Evidence to support the defence was introduced in the court below, consisting of the depositions of the master, mate and engineer of the steamer, and the protest filed in the case ; and those documents are exhibited in the record, together with the depositions of nineteen other witnesses taken since the appeal, of which sixteen were introduced by the libellants. Ships carrying cargoes as common carriers must be fitted to encounter ordinary sea perils on the voyage described in the contract of shipment. Injuries to cargo resulting from such perils give the shipper a right of action against the carrier, but the court below, on the evidence then exhibited, found that the gales were proved to be of extraordinary violence, and such as would have been likely to damage a seaworthy ship, and to corne within the usual definition of such perils. Kesponsive to that, the first observation to be made is, that the gales referred to did not damage the steamer of the respondents in the slightest degreee worth mentioning, as appears from ail the testimony exhibited as to her condition after she arrived at her port of destination. Except that the muzzle around the end of the pipe under the ceiling broke loose, there is no proof of actual damage to the steamer, and it is not claimed that the expenses of repairing that injury would amount to more than a nominal sum. Witnesses called by the respondents, especially the officers of the steamer, sustain the theory of the respondents that the gales which the steamer encountered were extraordinary, but in view of the very slight damage to the vessel, and the contradictory testimony introduced by the libellants since the appeal, the court is of the opinion that the violence of the gales was much exaggerated in^^the testimony of the officers as intro- duced in the court below. The Oguendo, 38 Law Times, (N. S.) 151. Opposed to the theory of the respondents that �V. l,no.2 — 5 ��� �