Page:Federal Reporter, 1st Series, Volume 8.djvu/641

THE LIZZIE W. VIBDEN. ^2jJ �Bweat that it should be impregnated with petroleum. The beat may exist, and the steam and sweat may exist, and all be necessary ac- companiments of the voyage; but if they are allowed to be vehicles of petroleum damage, the faet that the taste and odor of petroleum be conveyed by them does not make the damage therefrom a peril of the sea. The staining of the almonds by steam and sweat, or by sea water, was not allowed for. �It is contended for the claimants that the vessel is not liable, un- der the circumstances of this case, for the damage resulting from the fumes and odor of petroleum ; that it is shown that the vessel was properly cleansed af ter discharging her cargo of petroleum ; that all the petroleum there was left in the vessel was in the wood forming the vessel, and could not have been removed without destroying the vessel entirely ; that after a vessel which bas carried petroleum has been as thoroughly cleansed by external cleansing as possible, beat will bring out of the wood the fumes of petroleum which will taint the Bweat of the hold; that petroleum being a lawful cargo, a vessel which has carried it is not liable for the resuit if her hold beats up, and if the fumes of petroleum evolved thereby cause damage to cargo, and that if the shipper of such cargo knows that the vessel has car- ried petroleum, he takes the risk of such damage on himself . �In answer to any theoretical evidence in this case, that cargo like this must be damaged if carried in a vessel which bas previously bad in her a cargo of petroleum which has leaked, provided there is beat and sweat in the hold, there is the practical evidence that vessels carrying petroleum out do bring home, without damage, eargoes of almonds. The risk is not on the shipper. If the petroleum leaks out, and if the wood forming the vessel will absorb it, then, as beat and sweat in the hold are necessary incidents of a sea voyage, the ship-owner must protect himself, by proper provisions, if he does not wish to be liable for damage caused by the liberation of the fumes of petroleum by the beat of the hold, His contract, in this case, was to provide a vessel fit to carry this cargo. She was not fit. The ship- per took no risk but the perils of the sea, and the damage in that case Was not a peril of the sea. I see no reason for disturbing the decision below as to the amount of damages. The ruling in The Eroe, 17 Blatehf. 16, on the subject of a rebate of duties, must be adhered to until it is reversed by superior authority. �There must be a decree for the libellants for $1,512.22, with inter- est f rojn the date of filing the libel, and for. their costs in the district court, taxed at $329.0G, and for their costs in this court, to be taxed. ��� �