66 F. 604 | 2d Cir. | 1895
The Energia was outward bound for Shanghai, China, and moving down the Cut Channel, in the
Among the' cargo of the Energia were 68,838 cases of oil shipped by Oarleton & Moifatt, merchants in New York, and insured by the libelants in the second above-entitled action. As a result of the collision, the hold, where a portion of the oil was stowed, was flooded, and a large number of cases were thereby damaged. The steamer returned to New York for repairs. The oil was discharged, and 16,508 cases were found to be in such condition that they ■could not be carried forward to destination. They were surren
There is a manifest error in printing one clause of the charter party in the transcript of record. As the form of such clause which is set forth in appellant’s brief is not objected to by appellees, it may be assumed to be the correct quotation from the original. It contains a statement of agreement that the carrier “shall not be liable for loss or damage occasioned * * * by collisions, stranding, or other accidents of navigation of whatsoever kind, even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners, not resulting, however, in any case from want of due diligence by the owners of the ship, or any of them, or by the ship’s husband or manager.” Appellant relies upon this as a defense to the action. The cases of Railroad Co. v. Lockwood, 17 Wall. 357, and of Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana), 129 U. S. 397, 9 Sup. Ct. 469, sufficiently dispose of this point. There is no force in the contention that the act of congress of February 13, 1893, is practically a declaration that the public policy of this country touching such clauses in carriers’ contracts is otherwise than as stated in the cases last cited. When this contract was made, in November, 1892, it was made under the law as it then stood, whether that law was found in a statute or in the authoritative decisions of the supreme court, and subsequent changes in such law by act of congress have no retroactive effect.
The case of The Montana, however, expressly reserves for future decision cases where the contract itself expressly provides that any question arising under it should be governed by the law of some specified foreign country; and appellant seeks to bring himself within this exception by reason of the presence in the bills of lading of the following clause :
“(8) The liability of the carrier under this bill of lading shall be governed by the law of England, with reference to which this contract is made.”
We are satisfied, however, from the evidence, that the contract wms fully expressed in the charter party, which contained no such clause, and that there w'as no intention to modify that contract in so important a particular merely by making use of a printed form of bill of lading which contained the so-called “flag clause.” In fact, the steamer’s agent expressly testifies that there was no in
It only remains to consider the claim to be reimbursed for the general average and special charges exacted from the cargo upon adjustment at Shanghai. Upon this branch of the case, we concur in the reasoning and conclusion of the district judge, as expressed in the following excerpt from his opinion:
“I do not perceive any sound reason, in justice or in common sense, why both -the general and the particular average charges, to which the residue of the cargo is legally subject in Shanghai, should not enter into the damages to be recovered for 'this collision. The rule of damages here is ‘restitutio in integrum’ (The Potomac, 105 U. S. 630); and this rule as plaiply demands compensation for a charge or expense lawfully imposed upon this sound part of the cargo as for a deterioration or physical injury to another part, when both are equally the direct results of the collision. The loss to the cargo owner is alike in both, and both, upon the stipulated facts, are alike the direct and natural consequence of the cpllision. It is immaterial that the charge or expense in dispute has to be paid at Shanghai, instead of here, or that it is payable to the shipowner who is in fault, so long as the charge is a lawful one where it arises. If the exaction were an illegal one, no claim for it would arise here, for then it would not be the proper and natural result of the collision, but of a new agency, and an independent wrong, for which an independent remedy must be sought. But by our law, as well as by the English law, all average charges for the voyage are to be determined and adjusted by the law of the place of destination, which in this case was Shanghai, governed by English law. From the moment of collision, therefore, the sound part of the cargo became liable to these average charges, should it ever reach its destination; and, as that destination has been reached, that item of damage has become fixed, and is therefore recoverable here, as one of the direct and necessary legal results of the collision.” 61 Fed. 223.
The appellant contends that this conclusion is fallacious, because general average contribution neither arises by the collision nor while in the port of New York, but is the striking of a balance of the entire transactions of the voyage, and is therefore only recoverable at the place of destination, where vessel and cargo are finally separated. This criticism, however, is without force in the case at bar. All the average charges, both general and special, were for expenses incurred as a direct consequence of this collision, unaffected by any of the subsequent transactions of the voyage. The circumstance that they were collected from the cargo only when the voyage was terminated is immaterial. The “contribution” between the various interests — ship, freight, and cargo — may, indeed, be said to arise only when a process of adjustment has determined the amount to be paid by the respective shares. But the necessity of paying out money in order to enable surviving cargo to secure transportation to its original destination in the vessel by which it was shipped arose here. Whether it was paid here in the first instance by the cargo owner himself, or was paid by the shipowner who thereafter repaid himself out of the cargo owner’s goods, it was equally an expense -which was the necessary result of the collision; it “arose” at the moment of collision; and it is immaterial when it was paid.
The decrees of the district court in both cases are affirmed, with interest and costs.
Rev., St. § 4233.