106 F. 973 | D. Maryland | 1900
(orally). The case is this: Messrs. I. M. Parr & Sons, having .contracted with A. Schumacher & Co., the Baltimore agents of the North German Lloyd Company, for the carriage of a quantity of corn in bulk from Baltimore to Bremen in one of the North German Lloyd steamships (the H. H. Meier), lighters were sent by the North German Lloyd Company to the Canton Elevator to bring the corn across the harbor to the steamship where she was lying at her dock. One of the lighters, after being loaded, upset when 200 or 300 feet distant from the elevator, and her load of corn was lost. The Insurance Company of North America, underwriters on the corn, paid the loss to Messrs. I. M. Parr & Sons,
Since the case of Bulkley v. Cotton Co., 24 How. 384, 16 L. Ed. 599, it has been conceded, under circumstances such as are presented in this case, — that is to say, where the contract is to carry goods from one port to another, and they cannot be loaded immediately on the vessel which is preparing for the voyage, and lighters are sent by the vessel to bring the goods from the warehouse to the ship, — that, for the purpose of that service, the lighter is the substitute of the ship, and that the, goods are in fact, therefore, delivered into the custody and care of the ship and her owners from the time that they are placed on the lighter. And, for the purposes of this case, I shall take it that the bill of lading which was intended to be the contract for, the carriage was applicable to these goods, and determined the rights of the parties from the time that the corn was put upon the lighter.
The rule in admiralty is, when goods are placed aboard a vessel, and the vessel starts on her voyage, and within a short time, without any unusual occurrence of any sort arising, the goods are injured by the leakage of the vessel or its capsizing; that the presumption is that there was some unseaworthiness in the vessel at the inception of the voyage.' This is a case in which that presumption is applicable. Every one who has testified in this case has stated’ that the corn was properly put aboard the lighter and properly loaded, and that she started apparently all right; that it was a fine day in midsummer, with the water smooth and no wind; that the lighter drifted from 200 to 300 feet from the end of the elevator wharf, and then she capsized. Such an occurrence calls for explanation if the lighter is to be exonerated. The only explanation offered by the respondent is that there was a swell from a steamer passing in the harbor, which rocked the barge and shifted her cargo, in consequence of which she overturned. It is to be noticed that of all the witnesses called by the respondent' there is not one of them who says that the waves from
1 now come to consider the Harter act, approved February 13, 1893 (27 Stat. 445, c. 105), and whether the character of this case is such that the respondent is exempt under that act. The Harter act, as I understand the decisions, has not altered the obligation of the owner to furnish a seaworthy ship at the inception of the voyage. The owner must show now, as he was obliged to show before the act of 1893; more than due diligence. He must show that the ship was in fact seaworthy; that is to say, really fit for the purpose. This, in substance, as I understánd, is the result of the rulings in
The respondent, however, contends that, provided the owner of the lighter exercised due diligence to make her seaworthy, and if the bill of lading expressly exempts the respondent from liability for unseaworthiness at the commencement of the voyage, such an exemption is lawful; and as the respondent’s counsel have urged that the exemptions in the bill of lading control the respondent’s liability in this case, I have considered whether, if the contention were conceded, the language of the bill of lading would result in relieving the respondent for the loss in this case. The following stipulations in the bill of lading are relied upon by the respondent:
“(1) That the carrier shall have liberty to convey goods in lighters to and from the ship, and to discharge into lighters at the risk of the owner of the goods. (2) That the carrier shall not be liable for loss or damage occasioned ⅜ * » any iatent defect in hull, machinery, or appurtenances, even existing at the time of shipment or sailing on the voyage, provided the owners have exercised due diligence to make the vessel seaworthy. (3) It is also mutually agreed that the ship is warranted seaworthy only to the extent that the owners shall exercise due diligence to make it so.”
As to the clause I have first mentioned, stipulating that the goods may be lightered at the risk of the owner: This clause, in conformity with decisions upon similar stipulations, must, I think, beheld to refer to risks which are encountered notwithstanding the shipowner has complied with his duty of providing a lighter fit for the service, but not such as arise out of the unfitness of the lighter. The general rule is that an exception in a bill of lading ought, if possible; to be so construed as not to nullify the obligation of the shipowner to provide a vessel proper for the service undertaken. The Carib Prince, 170 U. S. 659, 18 Sup. Ct. 753, 42 L. Ed. 1181; Steel v. Steamship Co., 3 App. Cas. 72.
The present case has been argued upon the theory that the lighter was the substitute for the ship in receiving the corn, but if another view is taken, namely, that the lightering was part of the loading, stowage, custody, and care of the corn, then an exemption relieving the carrier from liability for fault or failure is forbidden by section 1 of the Harter act, and the failure to provide a fit ligher is a fault from which the vessel cannot contract for exemption. Calderon v. Steamship Co., 170 U. S. 272-276, 18 Sup. Ct. 588, 42 L. Ed. 1033. In this view of the case the failure to provide a fit lighter might be held a direct want of care in respect of the cargo, to which section 1 would be applicable. Knott v. Botany Mills, 179 U. S. 69-74, 21 Sup. Ct. 30, 45 L. Ed.-.
The clause contained in the bill of lading which I have designated as No. 2 undertakes to release the earner from liability for latent
The clause which I have designated as No. 3 stipulates that the ship is warranted seaworthy only to the extent that owners shall exercise due diligence to make her so. Assuming that this clause would be applicable to the lighter, it is not possible to say that its meaning is clear. It is easy to guess that the draftsman may have intended to say something to the effect that the owners should only be held to have warranted that they had exercised due diligence to make the ship seaworthy, or that they warranted her seaworthy only to the extent that by due diligence they could make her so, and not that she was actually seaworthy; but, if that was his meaning, he failed to express it, and, being ambiguous and uncertain in its meaning, it fails of having any effect whatever. Calderon v. Steamship Co., 170 U. S. 272-279, 18 Sup. Ct. 588, 42 L. Ed. 1033.
Without attempting to justify more fully the conclusion to which I have come, I must pronounce that the libelant has made out its case and is "entitled to a decree. As to the amount and value of the corn lost, I am inclined to think that it sufficiently appears from the testimony at this hearing. If, however, counsel for the respondent are of opinion that there is necessity for a more careful ascertainment, I will send the case to a master to assess the damages.