236 F. 463 | 9th Cir. | 1916
(after stating the facts as above). 1. It is contended by the appellant that this suit cannot be maintained because the appellee did not, as required by the bills of lading, present to the appellant its claim for loss and damage within 10 days from the date of the arrival of the vessel at the port of discharge, and did not, within 60 days from such date, bring this suit for such loss and damage.
To have made this vessel seaworthy to carry this cargo, it was the duty of the carrier, before receiving the cargo, to have effectively separated the first shipment from the coal and to have cleaned the vessel thoroughly of coal dust, so that none of it would be carried by either air or water and deposited on the cargo, and it was the further duty of the carrier to furnish the,vessel with sound and serviceable tarpaulins, and make the hatches water-tight against seas that might reasonably be expected to sweep over the vessel. It is contended on the part of the appellant that the water entered the vessel through a seam or crack between the deck and hatch coaming and other seams and cracks opened by the strain upon the vessel caused by the heavy weather encountered on the voyage. In other words, it is contended that the damage to the cargo was caused by perils of the sea.
“shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel.”
The trend of judicial decisions has been to construe this act strictly, and not to extend the carrier’s exemption from liability to doubtful and uncertain cases. The tendency has been to leave the liability of the ship and the owner as it was defined and enforced by the law maritime and by the common law, unless the act plainly and unequivocally asserts a different liability. The Germanic, 124 Fed. 1, 5, 59 C. C. A. 521 (Circuit Court of Appeals, Second Circuit), affirmed in Supreme Court, Id., 196 U. S. 589, 25 Sup. Ct. 317, 49 L. Ed. 610. Under this rule of construction, it has been held that section 3 of the act is limited to faults primarily connected with the navigation or the management of the vessel and not with the cargo. Knott v. Botany Mills, 179 U. S. 69, 73, 74, 21 Sup. Ct. 30, 45 L. Ed. 90; The Germanic, 196 U. S. 589, 597, 25 Sup. Ct. 317, 49 L. Ed. 610.
In this case the faults relate to the unseaworthy condition of the vessel and the care and custody of the cargo, and not to the navigation and management of the vessel. There is no complaint that the vessel was not properly navigated or managed; the complaint is primarily that the vessel waS unseaworthy, and that by the misconduct and negligence of the master and crew a large part of the cargo was improperly stored in the lower hold of the vessel without being separated from the coal, and that the remainder was not properly dunnaged to protect it from injury by contact with bilge water, that they were negligent in not keeping the hatches covered with safe, adequate and secure tarpaulins to prevent the water leaking through the hatches into the interior of the vessel, and were negligent and guilty of misconduct in leaving the whole of the interior space of the vessel in an unclean and unfit condition for the storage of the cargo by reason of the presence of coal dust. If we now examine sections 1 and 2 of the act, we find that liability for loss and damage arising from such neglect and misconduct as is here charged is a liability from which the shipowner is not relieved, and cannot be relieved, by any contract or agreement. Section 1 prohibits the shipowner from inserting in any bill of lading any clause, covenant, or agreement whereby he “shall he relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care or proper delivery of any and all lawful merchandise or property committed to its or their charge;” and section 2 prohibits the shipowner from inserting in any bill of lading—
“any covenant or agreement whereby the obligations of the owner or owners of said vessel to exercise due diligence to properly equip, man, provision, and outiit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master,*472 officers, agents, or servants to carefully handle and stow her cargo* and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided.”
“Collision or stranding is doubtless a peril of the seas; and a policy of insurance against perils of the seas covers a loss by stranding or collision, although arising from the negligence of the master or crew, because the insurer assumes to indemnify the assured against losses from particular perils, and the assured does not warrant that his servants shall use due care to avoid them. * * * But the ordinary contract of a carrier does involve an obligation on his part to use due care and skill in navigating the vessel and carrying the goods; and,' as is everywhere held, an exception, in the bill of lading, of perils of the sea or other specified perils does not excuse him from that obligation, or exempt him from liability for loss or damage from one of those perils, to which the negligence of himself or his servants has contributed.”
This decision was rendered in 1888, and prior to the Harter Act, but this act does not touch the law here declared, except in the navigation and management of the vessel; the obligation of the carrier with respect to the cargo remains the same. The Supreme Court cites the case of The Xantho, in the House of Lords, 12 App. Cas. 503, 510, 515. Lord Herschell, in that case, states that tne true view with respect to the carrier’s liability had been stated by Willes, J., in Grill v. General Iron Screw Collier Company, L. R. 1 C. P. 600, 611, as follows :
“I may say that a policy of insurance is an absolute contract to indemnify for loss by perils of the sea, and it is only necessary to see whether the loss comes within the terms of the contract, and is caused by perils of the sea; the fact that the loss is partly caused by things not distinctly perils of the sea does not prevent its coming within the contract. In the case of a bill of lading it is different, because there the contract is to carry with reasonable care, unless prevented' by the excepted perils. If the goods are not carried with reasonable care, and are consequently lost by perils of the sea, it becomes necessary to reconcile the two parts of the instrument, and this is done by holding that if the loss through perils of the sea is caused by the previous default of the shipowner, he is liable for this breach of his covenant.”
Upon the evidence in this case, the rule here stated fixes beyond question the liability upon the appellant for the loss and damage to ap-pellee’s cargo.
It appears that appellee sold to the Pacific Commercial Company, at Manila, some time in the month of January, 1913, 5,500 cases of salmon designated as “Chums.” The shipment was made on February 8, 1913, and it was found convenient to take this shipment from the reconditioned part of the cargo brought down by the Jcanie, instead of from the stock on hand. This salmon was then in a marketable condition, and delivered to the appellee for the market. What it sold for, the evidence does not disclose. The presumption is that it was sold for the price prevailing in January. In any event, the burden was clearly upon the appellee to prove the loss on this particular lot of salmon, if any there were, and it is not sufficient to say that this lot was merely substituted for an equal number of cases taken from the stock on hand, and that the loss was upon the like amount in stock, to be estimated as of March 20th. There was a market price for this quantity of salmon as of the date of its sale in January, and, in the absence of proof as to what that price was, we are of the opinion that a loss on this lot of salmon has not been proven, and that the estimated loss of 30 cents a case, making $1,650, should be deducted from the decree.
We are of the opinion that the overhauling of the entire cargo was necessary under all the circumstances, and that the expense incurred therefor was just and reasonable. The amount, $4,283.06, was promptly paid by the appellee, and it was entitled to interest charged thereon amounting to $578.20, or a total of $4,861.26. For the loss in the market price of the salmon, the lower court found the loss and damage to be the sum of $7,935. From this sum we find there should be deducted $1,650, leaving the damage on this account $6,285.00, or a
The decree of the District Court will therefore be reversed, with directions to enter a decree in favor of the appellee for $11,146.26, with interest and costs, including costs on this appeal.