48 F. 696 | S.D.N.Y. | 1891
In November, 1890, Delmege, Reid & Co., being charterers of the British bark IT. G. Johnson, shipped on board of her at Colombo 2,145 barrels of plumbago, which they had previously sold to the libelants, for which a bill of lading was signed by the master, reciting the receipt of the goods “in good order and well conditioned,” and agreeing to deliver the same in like good order at New York, to the order of Winter & Smilie, agents, “the act of God, the queen’s enemies, fire, and perils of the seas” excepted. Winter & Smilie were the agents of the libelants. On the delivery of the plumbago at New York, 466 of the barrels were found damaged by cocoa-nut oil, a part of which had been stowed above the plumbago. The libel was filed to recover this damage. The evidence leaves no doubt that the damage arose from the leakage of the oil. Aside from the placing of oil casks over the plumbago, the cargo was in general well stowed. There was no shifting of cargo on the voyage. There was the usual dunnage, and the ship encountered no extraordinary perils. The claimants’ witnesses ascribed the leakage to the poor quality of the casks in which the cocoa-nut oil was shipped, the casks proving to have been not well-seasoned, but green, and subject to shrinkage during the warm weather of the passage. The oil, as well as the plumbago, was shipped by Delmege, Reid & Co., but the master superintended the stowage and arrangement of the cargo. The bills of lading in this case import the ordinary contract and liability of a common carrier. They contain no exceptions save those above stated. In the case of Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 437, 9 Sup. Ct. Rep. 469, Mr. Justice Gray, in delivering the opinion of the court, says:
*697 ” By tbc settled law, in the absence of some valid agreement to the contrary, the owner of a general ship carrying goods for hire, whether employed in internal, in coasting, or in foreign, commerce, is a common carrier, with the liability of an insurer against all losses, except only such two irresistible causes as the act of God and public enemies.”
These bills of lading are to the same effect. There is nothing in them that serves to protect the ship from liability for damage arising from other goods. This damage did not happen from any peril of the seas, as the master himself testifies. The damage is directly traceable either to unfit oil casks, or to improper stowing of such casks over the plumbago, or to the lack of suitable attention to the leakage through the deck and in the hold during the voyage. Upon such bills of lading, and in the absence of any other exceptions, the ship takes the risk of such accidents as respects bona fide purchasers and consignees of the goods to whom she issues bills of lading, even though the goods wore shipped by the charterers. The T. A. Goddard, 12 Fed. Rep. 174; The Antoinetta C., 5 Ben. 564. The libelants are in the situation of bona fide purchasers, paying for the goods on the faith of the bills of lading issued to their agents, Winter & Smilie. Decree for the libelants, with costs.
