Lloyd's Law Reports/1933/Volume 46/WHITE & SON (HULL), LTD. v.

WHITE STAR LINE,

LTD. (THE "HOBSONS BAY"). - (1933) 46 Ll L Rep 189
(1933) 46 Ll L Rep 189

WHITE & SON (HULL), LTD. v. WHITE STAR LINE, LTD. (THE "HOBSONS
BAY").
HULL COUNTY COURT.
BEFORE HIS HONOUR JUDGE BEAZLEY.

APR. 5-8, 1933.

Held, that the damaged apples were shipped in a sound condition; that the vessel was properly
equipped for the carriage of apples; that the apples were carried at uneven temperatures outside
the safe limits set out in the shipowners' instructions, which constituted a failure to exercise due
care in the custody of the cargo and was prima facie the cause of the damage; that therefore the
onus of proving that the damage was due to the inherent vice of the apples was on the
shipowners; and that that onus had not been discharged-Judgment for cargo-owners.
In this case, the plaintiffs, Messrs. White & Son (Hull), Ltd., claimed damages against
the defendants the White Star Line, Ltd., owners of the steamship Hobsons Bay, arising
out of the carriage of 2040 cases of apples in that vessel from Melbourne to Hull.
Plaintiffs sued as holders for value and indorsees of bills of lading dated Apr. 4, 1931,
each bill of lading being in the same form, viz., the "Australian Homeward Bill of Lading,
1927, Refrigerated Cargo."
According to the plaintiffs' case, by the terms of the bills of lading the cases of apples
were shipped in apparent good order and condition at Melbourne to be delivered,
subject to the exceptions, terms and provisions of the bills of lading, in the like good
order and condition at Hull. Each bill of lading provided that all the terms, provisions and
conditions of the Australian Sea Carriage of Goods Act, 1924, and the Schedule thereto
were to apply to the bill of lading contract. Plaintiffs alleged that upon arrival at Hull 710
cases were delivered damaged.
Defendants, in their defence, pleaded the following clause in the bill of lading: "Shipped
in apparent good order and condition . . . cases apples . . . ( . . . contents, condition,
quality . . . as declared by shipper, but unknown to the carrier) . . ." and said that they
did not admit that the contents of the cases were in good order and condition when
shipped. Defendants further relied upon the terms of the Schedule to the Australian Sea
Carriage of Goods Act, 1924, Art. IV (2) (m) and (q), alleging that the damage, if any,
was due to the inherent defect, quality or vice of the apples.
By their reply, the plaintiffs alleged that the No. 3 lower 'tween deck in which the apples
were stowed was unseaworthy and/or was not fit and safe for the reception, carriage
and preservation of the apples and that the defendants failed to exercise due diligence
in the manner provided in Art. III (1) (a) (b) and (c) of the Schedule to the Australian Act.
In their particulars the plaintiffs alleged (a) that there was no and/or no sufficient or
adequate means provided for ascertaining the correct temperature at any time

throughout the said hold; and (b) that there were no means whatever provided for
ascertaining the correct and/or any temperature prevailing at any time in the said hold in
the vicinity of the side grids. Further, plaintiffs alleged that the damage was caused by
the negligence of the defendants or their servants in failing properly and carefully to
load, handle, stow, carry, keep, care for and discharge the apples (Art. III (2) of the
Schedule). In their particulars of defendants' negligence the plaintiffs pleaded (a)
loading, stowing, carrying and keeping the apples in the above hold in the condition
specified above; (b) failing to keep and/or maintain in the above hold and all parts of it a
proper temperature for the safe carriage and preservation of the apples on the voyage
in question; (c) failing to keep and/or maintain the temperature of the hold and all parts
of it even and/or uniform during the voyage; (d) allowing the temperature of the hold
and/or some part or parts of it constantly to rise and fall and/or fluctuate; (e) causing or
allowing excessive variations of temperature in the hold; and (f) opening the hold on the
voyage.
Mr. Ivor Jackson, of Messrs. Andrew M. Jackson & Co., of Hull, conducted the case on
behalf of the plaintiffs; Mr. G. St. Clair Pilcher (instructed by Messrs. Sanderson & Co.,
of Hull) represented the defendants.
Plaintiffs' evidence was to the effect that on the voyage the temperatures had not been
reduced to the temperature which should be aimed at, viz., 33 deg. to 35 deg. Fahr., but
had been allowed to be too high, with the result that the apples became overripe, their
maturity not being checked; that subsequently, at any rate in one part of the hold, the
temperature was brought down to 30 deg. at the point where the thermometers were
situated (which meant a much lower temperature in the wings and ends of the hold
where the grids were) with the result that the apples in these parts of the compartment
were subjected to too low a temperature; and that finally the temperatures were allowed
to rise slowly, with the result that the apples discharged at Hull had thawed out after
being slightly frosted.
Defendants' evidence was that the apples had never been frozen but that the damage
was due to "internal breakdown." They alleged that the temperatures to which the
apples were subjected during the voyage were not sufficient to cause the apples to
freeze.
The further facts are sufficiently set out in the judgment which follows.
Judgment was reserved.
Thursday, May 11, 1933.
08 April 1933
JUDGMENT.
His Honour Judge BEAZLEY, after relating the above particulars of the claim and defence, said:
There were ten insulated refrigerating compartments in the ship Hobsons Bay during the voyage
in question, which was one from Australia to the United Kingdom. She was fitted with the
refrigerating system known as the screened grid refrigerating system. The compartment into
which the cases of apples in question in this case were loaded at Melbourne was No. 3 lower
'tween deck.
The screened grid system is as follows. It consists of a number of pipes fitted round the side and
on the ceilings of the hold called roof grids and side grids. Through these grids is pumped cold
brine cooled by the refrigerating process-carbon dioxide gas. The vessel is fitted with screens
between the grid and the inside of the hold at a distance of about 9 to 12 in. from the pipe lines,
these screens going right round the sides of the compartment. In each of the screens is a pigeon-

hole where cold air comes through the compartment, the air being circulated by fans on the top
deck through the compartment between the screen and the grids. The pigeon-holes are fitted with
adjustable shutters. The flow of air is changed every 24 hours from starboard to port and vice
versa.
In the case of No. 3 lower 'tween deck there are two sections of grids round the compartment, an
upper and a lower, the roof grids being separate from these sections, so that they can be turned
on or off independently of the side sections. The temperature of the brine passing through the
grids is regulated by the machine from the brine room. So that the temperature in this hold (when
the screens are up) can be controlled by turning on or off the roof grid or side sections, by
regulating the air passing through the hold, and by regulating the temperature of the brine.
According to the evidence of Mr. Brodie, the chief engineer, when fruit is carried in the No. 3
lower 'tween deck it is not customary to have the roof grids in operation once the temperature for
the compartment is taken down to the required degree before the fruit is loaded.
As to the methods of taking the temperatures in No. 3 lower 'tween deck, there are four
permanent insulated thermometer trunks in this compartment coming out on "B" deck. Each trunk
contains two thermometers, making eight thermometers in all in this compartment. The top of the
trunk is fitted with a cap on the deck on the under side of which is a chain to which the
thermometers are attached. The readings of the thermometers are taken daily at 4 a.m., 8 a.m.,
noon, 4 p.m., 8 p.m. and midnight, and entered first on a scrap of paper or slate, thence into a
scrap log, which is supposed to be copied into a fair log nightly. This is done by means of pulling
up the chains and taking the readings of the thermometers.
No. 1 thermometer is on the port side forward and is a distance of 14 ft. 6 in. from the side screen
on the port side and 11 ft. 1 in. from the bulkhead. No. 2 thermometer is on the port side aft and is
a distance of 14 ft. 8 in. from the side and 22 ft. 6 in. from the after end. No. 3 thermometer is on
the starboard side forward and is a distance of 14 ft. 11 in. from the side and 11 ft. 4 1/2 in. from
the bulkhead. No. 4 thermometer is on the starboard side aft and is a distance of 14 ft. 9 1/2 in.
from the side and 23 ft. 0 1/2 in. from the after end. The top thermometer is in each case 12 to 18
in. under the roof grid; the lower thermometer is 12 in. above the floor of the hold. The space
between the top and the lower thermometer is 4 ft. 6 in. to 5 ft.
In addition to the daily readings of the thermometers recorded in the scrap log and fair log, a visit
was paid to each compartment by the chief engineer and the refrigerating engineer twice weekly.
They take several thermometers with them and take the temperatures in the sides of the ship in
this manner, the object being to ensure as far as possible that the temperature in the
compartment is the same throughout.
The first loading port was Brisbane. The vessel then proceeded to Sydney, where a Lloyd's
Register surveyor made a survey with regard to pipes, insulation, &c. The vessel then went to
Hobart, where she arrived on Mar. 30, 1931, and a Lloyd's Register surveyor took the opening
temperatures. She left Hobart on Mar. 31, having taken in apples, including 1879 cases in No. 3
lower 'tween deck. She arrived at Melbourne on Apr. 2 and there loaded 10,271 cases of apples
in No. 3 lower 'tween deck, including the two consignments under the bills of lading in question.
She sailed from Melbourne on Apr. 4 and arrived at Adelaide on Apr. 5, where she took further
cases of apples into No. 3 lower 'tween deck. She then proceeded to Fremantle, where she
arrived on Apr. 10, no cargo being taken there into No. 3 lower 'tween deck. She arrived at
Colombo on Apr. 20 and no cargo was taken there into No. 3 lower 'tween deck. So that from the
time she left Adelaide the hatches of No. 3 lower 'tween deck were not opened until arrival in
England, except the small hatch through which the chief engineer and refrigerating engineer went
on their biweekly examinations of the compartment.
She arrived at Southampton on May 10 and there discharged cases of apples from No. 3 upper
'tween deck; and she arrived at Hull on May 12. On the discharge at Hull of the 10,271 cases of
apples from No. 3 lower 'tween deck, the contents of 710 of the 2040 cases shipped under the
bills of lading in question were on survey found damaged. Such apples as were examined were
found to be brown and pulpy from the skin towards the centre, and partly waterlogged. But the
core of the apple was sound in each instance.

The whole issue in this case is the cause of the damage to the contents of these cases of apples.
The plaintiffs allege that the cause of the damage was that No. 3 lower 'tween deck was unfit for
the carriage of apples owing to the lack of means, or adequate means, of ascertaining the
temperatures of the compartment at its highest and lowest parts, relying upon Art. III of the
Schedule to the Australian Act, which provides:(1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to(a) Make the ship seaworthy;
(b) Properly man, equip, and supply the ship;
(c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are
carried, fit and safe for their reception, carriage and preservation.

They further allege that the defendants were negligent in failing to maintain uniform and proper
temperatures in the hold, and in allowing excessive variations of temperature, relying upon Art. III
(2) of the Schedule, which provides:Subject to the provisions of Art. IV, the carrier shall properly and carefully load, handle, stow, carry, keep,
care for and discharge the goods carried.

The defendants maintain that the cause of the damage was the inherent vice of the apples
shipped, and they rely upon Art. IV (2) (m) and (q) of the Schedule. They further allege that there
was no proof that the apples were in good condition when shipped.
The case of Foreman & Ellams, Ltd. v. Federal Steam Navigation Company, Ltd. , [1928] 2 K.B.
424; 30 Ll.L.Rep. 52, has decided that where there are negligent acts in relation to the
refrigerating machinery of the ship which cause damage to the cargo, no protection is afforded by
the exception in Art. IV (2) (a), and in fact no reliance was placed by the defendants on this
exception.
So that the issue in this case resolves itself into the determination of the question whether the
damage to the contents of these cases was due to the unseaworthiness of No. 3 lower 'tween
deck, or to the neglect of the defendants' servants to maintain proper temperatures in that space,
on the one hand, or to the inherent defect, quality or vice of the goods on the other hand.
The case as presented by the plaintiffs was that the damaged apples were in the earlier stages of
the voyage exposed to too high a temperature, then to too low a temperature, with the result that
the damaged apples were slightly frosted, the frost at the time of discharge being thawed out.
The case for the defendants was that the temperatures as shown in the log were never at any
time such as would harm a sound apple, and that any idea of their having been frosted is
dispelled by a test made by Mr. Howarth, a witness of vast experience on the subject of apples,
known as the pectic test. The joint inventor of this test, Dr. Horne, was also a witness for the
defendants. The real reason of the damage to the apples they allege to be "internal breakdown,"
which can only be caused by inherent vice.
Dealing first with the question of unseaworthiness, I am not prepared to hold that the
compartment comprising No. 3 lower 'tween deck was unfit for the carriage of apples. The
screened grid system and the method of taking the temperatures with installed thermometers and
periodical checkings were in my view adequate. I accept Mr. Barclay's evidence that a vessel
fitted in this manner was fit for the carriage of apples from Australia to this country, and that the
thermometer tubes in this compartment were sufficient in number and properly disposed; and I
am not prepared to hold that the ship was unseaworthy because the battery system of
refrigeration was not installed. I hold that the compartment No. 3 lower 'tween deck was
seaworthy before and at the commencement of the voyage for the purpose of the carriage of
apples.

There is left for consideration whether the condition of the damaged apples was due to the
temperatures to which they were exposed during the voyage or was due to inherent defect,
quality or vice of the goods.
I hold that the fact that the holds were opened for the reception of cargo was not in itself
negligence, and this point was not leally pressed.
Mr. Justice Wright deals with the question of a refrigerated cargo under this Act in Foreman &
Ellams, Ltd. v. Federal Steam Navigation Company, Ltd. , sup., and in the course of his judgment
uses words which I adopt as a guidance in the consideration of this case. He says in this case
([1928] 2 K.B. at p. 437; 30 Ll.L.Rep. at p. 59):-

A refrigerated cargo depends for its preservation on being carried in

insulated holds, kept at the proper temperatures by the due and proper
management of the refrigerating machinery. The putting into proper
insulated holds appertains to the loading and stowage. Until discharge
practically the whole duty as regards the proper caring for the cargo as such
is summed up in the management of the refrigerating machinery so as to
maintain correct temperatures . . . Refrigerated cargoes are of sufficient
importance to call for special reference in Art. III (1) (c).
His Lordship also says ([1928] 2 K.B. at p. 433; 30 Ll.L.Rep. at p. 57):-

Excessive and irregular temperatures would . . . prima facie indicate some

negligence or default in the care of the cargo on the ship, because the
primary duty in carrying refrigerated cargoes is to maintain proper
temperatures.
In dealing with the question of what is a proper temperature for the carriage of apples, the
defendants' evidence was that a sound apple should not be harmed in any temperature between
30 deg. and 45 deg. But there are in this case instructions issued by the owners of the ship to
their officers relating to the carriage of fruit. They are as follows:COOLING DOWN.
The overhead and side grids . . . to be brought into use simultaneously with attemperated brine at about
30 deg. delivery temperature and kept going for 12 hours. At the end of that period the overhead grids
are to be shut off.

ACCEPTANCE OF FRUIT.
It is the duty of the chief and refrigerating engineers to see that the fruit accepted for shipment should be
in good condition and the greatest care must be exercised not to receive on board fruit which is overripe,
affected with discoloration internally or externally, or affected with bitter pit. This is to be ascertained by
picking samples indiscriminately from boxes offered for shipment and cutting open the fruit for
examination.

CARRIAGE DURING VOYAGE.

On completion of loading any one compartment the chief officer shall at once use every endeavour to
cool down the fruit spaces to the required temperature as quickly as possible, and for this purpose the
selection of grids to be used must be left to the discretion of the chief engineer. Chief engineers should
aim at carrying their apple cargo at between 33 deg. and 35 deg. Fahr. unless the commander has
received a written request (a copy of which he will give to the chief engineer) from shippers specifying
particular temperatures.

These instructions both as to the examination of fruit and to the temperatures at which it should
be carried are presumably based on the long experience of the owners of this ship in dealing with

the carriage of fruit. They are entitled to be regarded, in my view, as deserving the weightiest
consideration. With all respect to the eminent experts called on behalf of the defendants (whose
evidence is that a sound apple is safe within the limits of 30 deg. to 45 deg.) I take the owners'
instructions as the best practical test of what is an approximately safe temperature to carry an
apple. It seems to me to be the most reliable evidence on the point which I had before me. "Chief
engineers should aim at carrying their apple cargo at between 33 deg. to 35 deg. Fahr."
Turning now to the scrap log, there can be no doubt that according to this log (1) the
temperatures which the owners' instructions say should be "aimed at" were not kept; (2) that the
temperatures varied considerably and were not kept even. As to (1) the effect is contained in the
answers of Mr. Brodie, the chief engineer, and Mr. Gordon, the chief refrigerating engineer, in the
evidence taken on commission, over and over again. I refer to four passages only because they
are typical. (Mr. Jackson): "Do you get any instructions from your owners about the temperatures
at which you should carry the fruit? A.: Yes, the temperatures which should be aimed at when
carrying fruit. Q.: Are those verbal or written instructions?
A.: Written instructions. Q.: What are those instructions in regard to the temperatures at which
fruit is to be carried? A.: 33 to 35 deg. Q.: You summarize them by saying '33 to 35 deg.'? A.:
Yes. Q.: Is that the temperature which you aimed at on this voyage? A.: Yes. Q.: 33 to 35 deg.?
A.: Yes." (Later) "Q.: And I see your instructions are to use every endeavour to cool down the fruit
to the required temperature as quickly as possible? A.: Yes. Q.: Did you ever obtain your optional
temperature on this particular voyage of 33 to 35 deg? A.: We got it down to 33 deg. Q.:
Throughout the hold? A.: Not throughout the compartment. Q.: I take it that temperature of '33 to
35 deg.' means a uniform temperature throughout the hold? A.: I suppose it does. Q.: What else
could it mean? A.: Well, you get apples in at different times and it might mean 33 deg. here and
we might not be able to get it down to 33 deg. at the top without getting it down too quickly Q.: Do
you regard 33 deg. as being your low temperature recording and 35 deg. as being your top
temperature recording? A.: That is what I understand. Q.: Do you agree that uniformity of
temperature throughout the hold is one of the chief things to be aimed at in the carriage of
apples? A.: Yes." (Later) "Q.: Now, you told us your instructions are to get the temperature down
to 33 and 35 deg.? A.: Yes. Q.: Now, judging from the log books-I am taking the scrap log in this
case- you never did achieve that temperature on this voyage, did you? A.: Not throughout the
compartment, but we got several temperatures down to 33 and 35 deg.".
Then Mr. Gordon is cross-examined. Q.: You do not agree with your owners' limitation of 33 deg.
to 35 deg.? A.: I do. Q.: Anyway, on this voyage you did not comply with your owners'
instructions? A.: We did our best. Q.: Did you comply with them? A.: No."
The average temperatures throughout were worked out upon the midnight readings and put to
Mr. Brodie in cross-examination. On Apr. 10 the average temperature of the eight thermometers
was 45 1/2 deg; on Apr. 17, 44 deg.; on Apr. 24, 42 1/2 deg.; on May 1, 40 3/4 deg.; on May 8,
38 3/4 deg.; and on May 12, 38 deg. Taking three weeks as the time it would take to get the
compartments down to the correct temperature, on no single occasion does the average midnight
temperature show anything below 35 deg., which is the highest degree which ought to prevail
according to the owners' instructions.
On Captain Fenwick's survey, the bulk of the damaged fruit came from the vicinity of the port after
corner, near the wings and bulkhead. This is in the vicinity of the No. 2 lower thermometer, from
where that was towards the bulkhead and ship's side. The temperatures as shown on this
thermometer certainly are lower after May 1, the lowest shown being 30 deg. at noon on May 7
(which was alleged to be an error). And on one occasion, on May 4, when this thermometer
showed 32 deg., no effort seems to have been made to prevent further reduction. Some degree
of difference between the temperature at this thermometer and that prevailing at the side of the
ship at any rate must be allowed for. I take it at 1 1/2 deg. -the difference given by Mr. Barclay.
As to the entries of temperatures in the scrap log and fair log, they really have no relation to one
another. The one is supposed to be a fair copy of the other. Mr. Jackson worked out the
differences for one day (Apr. 16) as 33 in number, and on no single day on the whole voyage do

the two entirely agree. The difference during the voyage amounted to 482 (as worked out by Mr.
Jackson).
Taking the scrap log as an accurate record, I have no hesitation in finding that the temperatures
as shown thereby in this compartment were irregular-at the earlier stages of the voyage
consistently higher than the 35 deg. prescribed by the owners' instructions, and subsequently
after the end of April in some instances lower than the 33 deg. prescribed. Prima facie, at any
rate, this in my view indicated "some negligence or default in the care of the cargo on the ship,
because the primary duty in carrying refrigerated cargoes is to maintain proper temperatures"
(per Wright, J., in Foreman & Ellams v. Federal S.N. Co. , sup.). The answer made by the
defendants was in the main to rely upon the evidence of three expert witnesses, all men of great
knowledge and experience, that these apples were damaged from their own inherent vice, even if
it can be said that there was any reliable evidence that they were sound when shipped.
The cases damaged comprised apples of the variety known as "Jonathan" and "Spitzenberg."
The consignments came from a number of orchardists. The "Jonathan" apple is one of the earlier
and softer varieties and susceptible to damage.
There are a few facts from the evidence as to the sale of part of the consignments and as to the
condition of the damaged cases to which I will refer before considering the evidence of the
defendants. As already stated, the damaged cases were confined to the vicinity of the port after
corner, near the wings and the bulkhead, where as all the witnesses say the temperature is low.
The evidence of the witness Mr. Fussey establishes that in a consignment of 50 cases of
"Boomerang Jonathans" sold to one Hinchcliffe the damaged apples were round the edges of the
boxes-sound in the middle of the box. This evidence is supported by the evidence of the chief
engineer. Mr. Young's evidence establishes that in one consignment of 100 cases of "Jonathans"
from the grower A. G. Robinson the contents of only three cases were found to be damaged. And
in the consignment of "Boomerangs" from Messrs. G. Woolf & Son, some were sound and some
were damaged; and apples of the same brand and same grower were sold sound ex Balzando by
the plaintiffs on the previous day to the sale of this consignment. And it was practically agreed
that the condition of the damaged apples was that they were brown and pulpy from the skin
towards the centre and waterlogged. But in every case the core was sound.
The evidence of the defendants put forward to show that the cause of this damage was inherent
defect, quality or vice of the apples was (1) that a sound apple will take no harm in temperatures
of 30 deg. to 45 deg. As regards these figures, I take the limits of the owners' instructions and
hold 33 deg. to 35 deg. as being approximately the safe temperature for the carriage of apples.
Mr. Howarth, one of the witnesses called on behalf of the defendants, states in a report made by
him on pears ex Tudor Star that 31 deg to 35 deg. is considered to be the safest temperature for
carrying fruit. The defendants further alleged (2) that the only certain method of ascertaining
whether an apple is frosted or not is by the "pectic test". This test is one whereby an apple is
frozen, and when once it is frozen there can be no change in the pectic condition. A case of these
damaged apples was sent to Mr. Howarth. He applied the test and found pronounced pectic
changes, which he alleged disproves entirely the case of frosting and subsequent thawing; and
he attributes their condition in his report on the case examined to "internal breakdown" and states
that "the fact that the fruit would appear to have been in an advanced state of maturity" must be
reckoned a contributory cause of the extensive damage. Mr. Howarth, in his evidence, stated that
"if fruit matures through too high a temperature you get pectic changes such as over-ripeness in
good apples."
I am at any rate satisfied that the "advanced state of maturity" spoken of in his report was caused
by the excessive temperatures of the early part of the voyage. The first suggestion of advanced
maturity is contained in the log entry of May 6: "Fruit examined all O.K. bar No. 3 L.T. overripe."
The evidence as to the condition of the fruit on shipment is contained in the certificates attached
to the bills of lading and the evidence of the ship's officers. The certificates certify that "the fresh
apples therein described have been examined and found to be in sound condition and packed
and graded in accordance with the provisions of the Commercial (General Exports) Regulations."

Some of the fruit shipped was examined in accordance with the owners' instructions by the chief
engineer before shipment at Melbourne and none rejected, and also by Government inspectors
with a similar result. I am satisfied on the whole of the evidence that the damaged apples were
not in an advanced state of maturity when shipped.
Being satisfied of this and having found that the temperatures at which they were carried were
uneven and irregular, the onus of proof appears to me to be upon the defendants to bring the
cause of the damage within the provisions of Art. IV (2) (m), which provides that the ship shall not
be responsible for loss or damage arising or resulting from (inter alia) inherent defect, quality, or
vice of the goods.
The pectic test deals with frost only. The evidence of Dr. Horne is that an apple cannot freeze at a
temperature higher than 27.5 deg. It is with diffidence that I criticise the evidence of either Dr.
Horne or Mr. Howarth. But the evidence establishes that on a previous voyage of this ship in May,
1930, apples from this same compartment were frosted and the damaged cargo paid for; and the
evidence of the ship's officers was that the temperatures on the ship on the voyage now under
consideration were the same as on the May, 1930, voyage. I have no evidence as to the
temperature at which internal breakdown is established.
In my view, it is unnecessary for the purpose of my decision to decide whether the cause of the
damage to these apples was due to frost and thawing out or to internal breakdown. There would
seem from the evidence before me of Dr. Horne and Mr. Howarth to be a good deal of divergence
of opinion as to what is the freezing point temperature for an apple. But I am satisfied on the
evidence taken as a whole: (1) that the damaged apples were sound when shipped; (2) that they
were carried at uneven temperature throughout the voyage; (3) that these uneven temperatures
constitute failure to exercise due care in the custody of the cargo; (4) that on discharge these
apples were brown, pulpy from the skin towards the centre, and waterlogged, the core in every
case being sound; and (5) that this condition was caused by reason of the uneven temperatures
at which they were carried and not by the inherent vice of the apples.
For these reasons, the plaintiffs' claim succeeds.