Page:Federal Reporter, 1st Series, Volume 8.djvu/640

626 FBDBEAL EEPOBTEB. �whether this damage was a peril of the sea. The burden in this case is on the owner of the vessel to establish the existence of facta to make ont the exception. If the cause of the damage is shown to be an ordinary risk of navigation, after the exercise on the part of those in charge of the vessel of all reasonable precautions to prevent the injury, the negligence of the vessel is not made out, otherwise it is. �It is contended for the claimants that none of the almonds were damaged by coming in contact with any portions of the vessel which had been stained with petroleum ; that during the voyage there waa formed, by reason of the changes of temperature, a large quantity oi steam and sweat in the hold of the vessel, which, settling on the beams, dropped on the bags of almonds, and thus damaged the almonds, because the beat of the hold caused the fumes and vapor of petroleum to exude from the wood forming the vessel, and they impregnated such steam and sweat, and thus the odor of petroleum ■vras conveyed to the almonds ; that those in charge of the vessel had, after unloading the cargo of petroleum, used proper care to cleanse the vessel from all petroleum which had got upon the wood forming the vessel before they received the almonds on board, so that the vessel, at the time the almonds were taken on board, was in a proper condition to receive them; that the damage from such steam and sweat, and thus from such impregnation of the almonds with the odor of petroleum, was a damage from a peril of the sea; and that as the libellants, before they put the cargo on board, knew that the vessel had just had on board a cargo of petroleum, the vessel is not liable for any damage which the almonds received from fumes or odor of petroleum resulting from beat of the hold during the voyage. �The district court did not determine by what method the taste and odor of petroleum were conveyed to the almonds, because it held that the liability of the vessel was the same whether petroleum in a fluid state or wOod saturated with petroleum came in contact with the goods, or whether the vapor of petroleum, produced by the beat of «ihe hold, caused the damage, either by tainting the sweat of the hold or by tainting the cargo directly. No allowance was made by the district court for damage by the steam or sweat of the hold, aside from petroleum damage, or for any injury by steam or sweat which did not convey petroleum. Allowance was made for only one kind of damage : that was petroleum damage, however conveyed, as long as it proceeded from the ship. Whether the steam and sweat result- ing from beat or otherwise, and neeessary incidents of a voyage at ,sea. existed or not, it is not a neeessary incident of such steam or ��� �