1156 VERMIN. The liability of owners for damage to cargo by vermin has been the subject of frequent litigation; some charter parties include the words "damage by vermin excepted." When damage does occur, masters are always careful to "protest" against vermin, as early as possible after arrival.

1157 Of all vermin infesting ships, the most injurious is the rat, which arises from his great instinct, boldness, and natural qualifications. The inner portion of the four front teeth of rats is soft; the outer is composed of the strongest enamel; the continual growth of these teeth can only be checked by constant use. When one has been lost, the opposite tooth has been known to lengthen until it met the gum, which caused it to turn and ultimately to pass through the lip. It is this extraordinary growing property of the front teeth which, coupled with in unconquerable thirst, makes rats so formidable. They "eat" up under the waterways of the deck until within a wafer thickness of the surface, through which dew or rain can be sucked; and where there is leakage around the partners of a mast, they eat from below up to the deck, and also up through the covering boards alongside a stanchion or timber-head; unless protected by copper, they will cut their way to the scupper-holes, when they hear water running through them. They have been known to eat through the wooden filling piece in the space where a deck-light had been originally; as the hole was fully 2 inches diameter, and only about 15 inches from the waterway, and nearly abreast of the pumps, it may be imagined what a quantity of water must have found its way below into the 'tween decks, on the cargo, either when the ship's pumps were used, her decks washed, or she was in heavy weather with a body of water in the lee (starboard) waist. The hole being immediately under a water cask lashed to the spare spars in the side of the ship, was not discovered for some time and the ship was believed to be making water very badly on the port tack. Grain-laden ships have been put in great danger by holes through the pump-casing, which admit cargo and choke the pumps. The greatest peril however is when rats attack the sides between wind and water, in the vain effort to assuage their thirst. Guided by the rippling of the sea, they select a plank where the sap is gone close to a seam, and by combining together, work incessantly until salt water oozes through and they find their labour useless. The weak barrier left gives way sooner or later, the cargo is injured, and the lives of all on board are in jeopardy, especially if the holes are under the channels, in the counter, or in any other concealed part. Rats will boldly come on deck in rainy weather, even in the day time, and in sight of the seamen, and will ascend the shrouds to suck water from the interstices of the rigging. Where they are so numerous, it seems better to give them a daily supply of water rather than risk such perils. Rats will gnaw holes in casks containing water, by cunningly selecting a seam close to the chime, where the heads are thinnest, and waste the ship's stores long before the voyage is completed. Casks of wine, spirits, and most other liquids, lead pipes, &c. are liable to the same attacks.

1158 At Calcutta there is a small earth rat with round ears, white belly, and yellow back; not so anxious for water as the common rat, which they will soon drive out of the ship. These earth rats come clown in the country (dobah) boats, and make great havoc among hides, selecting the thick parts of the neck and rump. Bandicote rats are very large and nearly all black.

1159 When ships are loading sugar at Port Louis, Mauritius, rats at sun set, swim off from the shore in swarms, and crawl up the cables; they feast all night and leave early in the morning. The ordinary prevention is a cicular piece of wood, like the head of a cask, made in two parts, to fit on the cable at right angles; the outside covered with tin. There is at Mauritius also a species of rat, not much larger than a mouse, which will bore holes in those parts under the ship's counters, where there is little access for air, commonly in lockers — such ill ventilated parts rotting soonest. Masters are not allowed to smoke ships here without first giving notice to the harbour master.

1160 When Musk rats pass over wines in bottle, the fœtid odour which emanates from them, destroys the quality of the wine, unless the bottles are covered with tinfoil or metallic capsules; seal wax is no protection. When several travel together, they go in a file each holding in his mouth the tail of the one preceding; this habit has induced the erroneous belief that the species is blind; their eyes are exceedingly small, and can only be discovered by very close inspection. Cats will not touch musk rats, and very few dogs will muzzle them.

1161 Rats make considerable havoc amongst sails, especially in those parts on which oil or grease has been dropped, and give a decided preference for new canvas, on account of the starch or sizing, or because it is softer for their nests, which are found in the bunts of the topsails, and in the jibs when stowed on the bowsprit; sails should therefore be loosed occasionally for this if for no other purpose. Some masters have, it is said, saved their sails by supplying soft paper for the nests. Spare sails require to be rolled up as snugly as possible; sometimes they are stowed on a number of empty water casks, and instances have occurred where the loose end has fallen down between two, and rats have eaten holes merely to obtain a clear run through. In the hold, rats' nests are made in the driest parts, between the frames, on the chocks, and on the knees. It has been suggested as possible that the fibrous matter and oily substances collected occasionally for these nests may lead to spontaneous combustion. When two different kinds are on board a ship, one will locate forward, the other aft.

1162 It is very difficult to stow aniseed so as to be secured from the attack of rats; the amount of destruction which they create in a cargo of sugar is almost incredible; they will nibble away cork bungs in casks of wine, &c. and waste the contents. They are very fond of parchment, but will not touch leather bags of a tan colour. Unless driven by extreme necessity they decline beans or peas, which are difficult to masticate; neither will they eat oats or barley while wheat is to be had; and they will leave bad for good — sparing neither time, trouble, nor perseverance, to get at the best. When winches of yarn are stowed in the same hold with wheat in bulk, and the grain gets mixed with the yarn, rats in order to get at the wheat will eat through the yarn and much diminish its value. The loss by Mice in a cargo of rice is not so much from what they consume as by what they waste, and what is lost when handling bags perforated by them.

1163 Cockroaches will attack the corks of bottles containing champagne and other delicate articles, unless protected with tinfoil or metallic capsules. Cockroaches, scorpions, &c. come on board in firewood, bags of rice, gunny bags, &c; in warm climates, when it rains, they fly about and drop on the crew; they devour almost everything, and scarcely any poison seems to affect them; mercurial ointment, tobacco, cantharides, &c. are said to be eaten by them with avidity. When the crew are asleep in their hammocks cockroaches will attack the hard skin on the soles of their feet until blood is drawn; toe nails, finger nails, and horn buttons are consumed in the same way. Their increase on board Calcutta and other ships, is enormous; when inner planks have been taken out, the space between the limbers, above the wash of the bilge water, has been found completely full of a compact mass of cockroach dirt; it does not appear to injure teak. When rounding the Cape of Good Hope these insects become torpid, and hang about the hold, and can be easily swept into a bucket. Although a ship may pass an entire winter in England, and all the living cockroaches may die, yet their eggs, if deposited in a warm place, will be hatched on approaching the equator; two winters at home are said to be requisite. Cockroaches abound as much in iron as in wooden ships. Ants feed on their bodies, and are reported to attack them when alive. Spiders will attack cockroaches and bugs.

1164 Ants. There is a species of ant infesting the West coast of Africa, which perforates casks of oil, &c. and creates considerable loss. This ant thrives in timber; and where the hulls of condemned slave vessels have been used for building purposes in St. Helena, their ravages have so weakened the sills of the windows, the frames of doors, &c. as to involve the necessity of taking down houses, to prevent them from falling. In the Mauritius there are white ants which perforate casks of port wine; every year they are furnished, for a short time, with wings, which fall off as they fly; where the insects drop, the work of destruction commences. About the year 1828, the son of Judge Smith, while writing, was suddenly killed by a roof beam, the end of which had been gradually destroyed by these insects. Red ants are said to infest teak timber; ants cannot readily cross powdered chalk.

1165 In passing the accounts for troop ships, at the Admiralty, a quantity of provisions, equal to one-tenth part of the established proportion for the number of persons actually victualled, is allowed for waste and for destruction by vermin.

1166 Smoking Ships. The course usually adopted for the total destruction of vermin, is to stop every crevice, and smoke the ship with a fire of charcoal in the hold, or with sulphur, or mercury, &c. Charcoal fires should be made near the deck, not low down on the keelson. A practical chemist recommends chlorine instead of vapor or sulphur; the gas from chlorine is violently irritating, and its inhalation may cause serious illness if not fatal results. Some recommend the suspension of iron pots containing quicksilver, about six or eight inches above the fires, which it is said will destroy beetles, cockroaches, bugs, &c; when quicksilver is used the residue will not be injured, nor will much have evaporated. After the mercury is put over the fires, it is dangerous for any one to remain in the hold. Some run the mercury into deep gimlet holes bored in thick pieces of wood, which they calculate will not be burnt through until the last hatch is down. Ships are generally smoked in dock, when the cargo is out, but if rats are found to be increasing at sea, the process can be performed in warm latitudes, where all hands can sleep on deck under awnings; for this reason every ship destined for a long voyage, should take a supply of charcoal, &c. In all cases especial care should be observed not to allow any one to go below during the fumigation, or even to sleep in a round-house on deck, until several hours after the hold has been well ventilated. Fumigations at sea are however dangerous and should if possible be avoided, as some ships have been thereby burnt, and many lives lost. After smoking, rats are usually found near the fire, but some are in other parts, especially where it is likely there may be small openings — usually in the ends. Some owners contend that the best and least dangerous way to destroy vermin is to clear out everything during a very hard frost, open all the hatchways and entrances, remove the vent-boards in the hold, the limber boards, &c. &c. It is contended that by this mode, rats, mice, cockroaches, and every description of vermin have been destroyed.

1167 Food flavoured with oil of carraway, mixed with nux vomica, will poison rats and twice; with strychnine their bodies will be found near. Phosphorous mixed with fat, heated to 150°, will have the same effect, especially if a good supply of water is close at hand; they should he fed some days previously with scraps of bread and cheese, and clean water. The use of poison however is very dangerous, as its destructive properties may be communicated to food intended for human consumption. It is said that rats will not remain in a ship containing assafœtida, and that if entirely deprived of water when close to the shore, they will leave. Every possible means should he adopted to prevent their approach, which usually takes place by night. Planks communicating with the shore or with other ships should, where practicable, be removed early, and bundles of furze or birch should be fastened around cables and warps when lying in a tidal harbour.

1168 When numerous, rats will attack the common English domestic cat, and if unsuccessful in destroying it, will much diminish its usefulness. At Milford, in 1857, a cat was taken on board the guano-laden Dutch ship Konigin der Nederlanden, in the evening; the next morning nothing was to be seen but her skin and bones. The ring-tailed Malay cats, being very strong, can more easily secure rats, with which they feed their young. Bull-terriers are considered preferable to domestic cats, but they cannot follow vermin so easily; to be of service they should weigh 8 to 14lb, over that they are unwieldy. A wire trap with a wire bottom, placed on a bucket of water, has often proved successful. Rats will not eat food that has been handled, and will carefully avoid a trap that has been chafed by their own species.*

1169 Abbot, in his work on shipping, says: moreover, the master must, during the voyage, take all possible care of the cargo. If it require to be aired or ventilated, as fruit and some other things do, he must adopt the usual and proper methods; and although he is not responsible for injury done to it in consequence of a leak occasioned by tempest or other accident, yet, where rats occasioned a leak, whereby the goods were spoiled, the master was held responsible, notwithstanding the crew, afterwards, by pumping, &c. did all they could to preserve the cargo from injury; and this determination agrees with the rule laid down by Roccus, who says: if mice eat the cargo, and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault. Yet if he had cats on board his ship, he shall be excused. This rule and the exception to it, although bearing somewhat of a ludicrous air, furnish it good illustration of the general principle, by which the master and owners are held responsible for every injury that might have been prevented by human foresight or care. In conformity to which principle they are responsible for goods stolen or embezzled by the crew or other persons, or lost or injured in consequence of the ship sailing in fair weather against a rock or shallow known to expert mariners.†

1170 It has been held that if a master can produce evidence to show that he has used every precaution to guard against rats, before taking in the cargo; that the ship was sea-worthy, as far as rats were concerned, when taken in; and that, after taking it in, and during the voyage, he took every means in his power to protect his cargo, and to keep clear of rats; the consignee could not recover compensation. Referring to damage caused by this class of vermin, it has also been held that where rats occasion a leak in a vessel, whereby the goods are spoiled, the owners are responsible, as they would also be if a cargo were eaten by mice, unless the master can show that proper precautions were taken and that he had sufficient cats, in which case the ship would not be liable.

1171 Cheese. In the Court of Exchequer, Baron Martin decided that where tubs containing Parmesan cheese, shipped at Genoa for London, had been broken in stowing, and their contents destroyed by rats, the ship was held liable, notwithstanding there were cats on board.

1172 Coffee. In the United States District Court, December, 1861, Judge Shipman gave judgment in the case of Wm. P. Kirkland v. the barque Fame, as follows:— This libel seeks to recover damages for injuries to coffee transported from Rio Janerio to New York. The answer alleges that this occurred, not from any cause for which the barque or her owners are responsible, but solely from "the dangers and accidents of the sea and navigation." It is clear that a portion of the injury was caused by rats. This fact was anticipated by the answer, which alleges that due care was exercised, two cats being kept on board from the time the coffee was laden. Claimants insist that, having exercised due care, the injury is within the exception of the bill of lading, and is to be deemed one of the "dangers or accidents of the seas and navigation." On the other hand, the libellants maintain as matter of law, that damage to a cargo by being gnawed by rats, is not a peril of the sea within the meaning of that term or the terms used in the bill of lading; and that, therefore, the claimants cannot exempt themselves from liability by showing that they adopted certain precautions. The question of damage done by rats has been the subject of repeated decisions by courts, and has been often discussed. The oldest case which has generally been relied on at all is that of "Dale v. Hall" (Wilson, R. p. 281) an action in the King's Bench, on a contract to carry. Mr. Justice Burnett admitted evidence to show that rats had gnawed a hole through the bottom of the ship, by which the damage occurred. A verdict was given for defendant, and on motion for a new trial the verdict was set aside (Lee, ch.1), remarking that the ruling below was clearly wrong. In this the whole court concurred. By the report, it appears that the judge who tried the case was in doubt as to the admissibility of the evidence. This case was decided in 1750. In the case of "Hunter v. Potts," (4, Campbell, 203) in 1850, Lord Ellenborough held in a Nisi Prius trial that a loss arising from rats eating holes in the ship's bottom was not within the perils insured against in the common form of a policy of insurance. Of course he held it not a peril of the seas. But a very recent English case, "Laveroni v. Drury," (16, Eng. Law and Eq. Rep. 510), fully sustains the claim of the libellants in this case. It was there held that a cargo of cheese having been damaged by rats, the injury could not be attributed to a peril of the sea, that it was "a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse as in a ship at sea." The court held that the presence of cats as is alleged in the present answer, was no defence. It is true that Judge Story states that the Continental writers on maritime law maintain a different doctrine, although he says the English law holds the ship liable. But I do not understand him as endorsing the doctrine of the foreign writers, although he does not expressly dissent. Here are two cases which conflict with the English rule— "Carrigues v. Coxe," 1 Binney, 592, and "Aymer v. Astor," 6 Cowen, 266. Of the former, Angell in his work on the "Law of Carriers," remarks "But this has been considered and pronounced to be the only case contrary to English law." As to the case of "Aymer v. Astor," the reasoning of the Court on this point does not appear to be wholly consistent with either doctrine, and consequently is sometimes cited as supporting the English rule, and sometimes as in conflict with it. The learned libellant, in the case under consideration, has cited it in support of his claim but I agree with the claimant's counsel that it has no such effect. On the trial in the court below, the judge charged the jury that damage by rats was not a peril by sea, and therefore not within that exception in the bill of lading. To this part of the charge exception was taken, and on the hearing of the writ of error, judgment was reversed. Savage, Chief Justice, said, in giving the opinion of the court — and in this part of his opinion the whole court concurred. "The true question to be submitted to the jury was, whether the master had used ordinary care and diligence; whether a cat is a sufficient preventive; or whether smoking the ship is the proper or more efficacious remedy, is a proper consideration for the jury." This view of the court must have proceeded upon the idea that damage by rats was a peril of the sea, against which the master and owners were not obliged to secure the cargo at all hazards, and, therefore came within the exceptions in the bill of lading. This, of course, would let in the proof, and if the fact that ordinary care and diligence were used, was proved, it would excuse the ship. Of course, too, without this care and diligence the extremest perils of the sea would not excuse a loss. If a ship were destroyed by a tornado, unless ordinary diligence to prevent it were shown, the loss would not be a peril of the sea within the meaning of the law. The result to which the court came in this case of "Aymer v. Astor," was a logical deduction from the principle which they assumed — that the master of a ship was" not responsible like a common carrier for all losses, except they happen by the act of God or the enemies of the country." I understand that this principle has been distinctly overruled ("Sewell v. Allen," 2 Wendell, 327; Angell on Law of Carriers, sec. 80 and sec. 170, note, Greenleaf; over-ruled cases, revised edition, 1856, page 23). After careful examination of the authorities I am inclined to adopt the conclusion of Chancellor Kent, who, after remarking that it was a "vexed question, upon which the authorities are much divided," says — "the better opinion would, however, seem to be, that the insurer is not liable for this sort of damage, because it arises from the negligence of the common carrier, and it may be prevented with due care, and is within the control of human prudence and sagacity." (3 Kant's Com. 300, 301). This conclusion has since been strengthened by the case of "Laveroni v. Drury," already cited. But whatever may be the conclusion warranted by the authorities, I do not think the master of the Fame, has proven due diligence on his part. The witnesses offered by the claimants, consisting of several masters who carry similar cargoes from Rio, say it is a very bad port for rats. The master of the Fame himself testifies that it is the worst port for rats he ever visited, and he always has some on board. Yet he did not fulminate his ship. Knowing the danger, as be admits he did, I think common prudence would have led to the use of every known means of ridding her of the vermin. Let a decree be entered for the libellants, with an order of reference, and let the Commissioner in his report, carefully distinguish the various kinds of damage to the cargo and the causes of that damage.

1173 Coffee. Com. Pleas, Jan. 24, 1866, Kay v. Wheeler. A special case stated without pleadings for the opinion of the Court. Defendant's ship Victoria took on board from Messrs, Wilson & Co. at Ceylon, a parcel of coffee consigned to plaintiff. The bill of lading was in the ordinary form, the goods were, therefore, to be carried safely and securely, the perils of the sea, the act of God, and the Queen's enemies, only excepted. On arrival, it was found that rats had gnawed the bags and caused a loss of £25. Defendant denied liability because it was not through his fault; the ship was cleared before starting and two cats and two Cingalese ferrets were placed on board. Sir G. Honeyman said that it was preposterous for defendant to say he was not liable because he had cleared the ship, for the loss did not arise from any of the excepted perils. He did not know whether it was meant to be contended that the loss was caused by the "perils of the sea." Mr. Justice Willes: He would probably say that the damage arose from the perils of navigation. Sir G. Honeyman: The Court of Exchequer had delivered an elaborate judgment, "Laveroni v. Drury," to the effect that an owner was not excused from damage by rats, notwithstanding he kept cats on board." Mr. W. Williams, for defendant, tried to distinguish this case from "Laveroni v. Drury." Mr. Justice Smith said the only difference seemed to be, that here there were two ferrets in addition to two cats, Mr. Justice Willes thought that it was a barbarism that a carrier should be more liable than any other bailee, but such was the law. The Court held that they were bound by the decision in "Laveroni v. Drury," which if questioned, must be so in the Court of Error. Judgment for plaintiff, which was confirmed on an appeal to the Exchequer, Feb. 4, 1867,

Transcribed by Lars Bruzelius.

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