The Caledonia
43 F. 681
U.S. Circuit Court for the Dis...
1890
Check Treatment
Gray, Justice.

A contract for the carriage of goods by sea may doubtless exist without a bill of lading; and, when the parties have made such a contract, the ship-owner cannot, without the shipper’s consent, vary its terms by inserting new provisions in a bill of lading, and the shipper mav decline to assent to the modifications, and insist upon his right to have the goods carried under the original contract. Jones v. Hough, 5 Exch. Div. 115; Crooks v. Allan, 5 Q. B. Div. 38, 40, 41; Lord Bramwell, in Sewell v. Burdick, L. R. 10 App. Cas. 74, 105. But the bill of lading is often given by the ship-owner and accepted by the shipper as expressing the terms of the agreement between them, and when this is the case both parties are bound by its provisions. Glyn v. Dock Co., L. R. 7 App. Cas. 591, 596; Chartered M. Bank of India v. Netherlands, etc., Co., 10 Q. B. Div. 521, 528; The Delaware, 14 Wall. 579. In the case at bar the original contraed, although containing no mention of a bill of lading, was evidently a preliminary memorandum only, and not a final and definite statement of all the terms of the agreement between the parties. For instance, it did not even except perils of the sea, yet it is incredible that either party contemplated orintended thatthe carrier should be liable for such perils. And the shipper not only, without objection, accepted and forwarded to the consignees their bill of lading, but in the usual course of business between the parties, both before and after this shipment, he accepted similar bills of lading under like circumstances. It is a necessary conclusion of fact, as well as of law, that the bill of lading was understood and intended to be, and was, evidence of the real contract by which the mutual obligations of the parties were to be governed. The shipper is therefore bound by the exceptions in the bill of lading, as far as those exceptions are valid in law. So far as they undertake to exempt the carriers from responsibility for the negligence of their servants, they are inoperative and void. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. Rep. 469. But in this case, as no negligence is proved, that part of the exception is immaterial .

In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the ship-owner that the ship is seaworthy at the time of beginning her voyage, and not merely that he does not knoiv her to be unseaworthy, or that he has used his best efforts to make her seaworthy. The warranty is absolute that the ship is, or shall bo, in fact seaworthy at that time, and doesnot depend on his knowledge or ignorance, his care or negligence. Work v. Leathers, 97 U. S. 379; Cohn v. Davidson, 2 Q. B. Div. 455; The Glenfruin, 10 Prob. Div. 103. In the case at bar, the unseaworthiness of the vessel consisted in the unfitness of her shaft when she left port, and that unseaworthiness vras the cause of the damage to the libelant’s cattle. The exception of “steam-boilers and machinery, or defects therein,” inserted in an instrument framed by the ship-owners, and in the midst of a long enumeration of various causes of damage, all the rest of which relate lo matters happening after the beginning of the voyage, must, by elementary rules of construction, and according to the great weight of au*686thority, be held to be equally limited in its scope, and not to affect the warranty of seaworthiness at the time of leaving port upon her voyage. Kopitoff v. Wilson, 1 Q. B. Div. 377; Steel v. Steam-Ship Co., L. R. 3 App. Cas. 72; The Glenfruin, 10 Prob. Div. 103; Tattersall v. Steam-Ship Co., 12 Q. B. Div. 297; The Rover, 33 Fed. Rep. 515. The opinion in The Miranda, L. R. 3 Adm. & Ecc. 561, so far as it tends to a different conclusion, is contrary to the later cases; and in The Laertes, 12 Prob. Div. 187, the bills of lading expressly restricted the warranty of seaworthiness to cases in which there had been a want of ordinary and reasonable care.

It has been held by the highest courts of Michigan, Massachusetts, and New York, upon reasons which appear to us conclusive, and which it is unnecessary to restate, that a common carrier, receiving goods for carriage, and by whose fault they are not delivered at the time and place at which they ought to have been delivered, but are delivered at the same place afterwards, and when their marketvalue is less, is responsible to the owner of the goods for such difference in value. Sisson v. Railroad Co., 14 Mich. 489; Cutting v. Railway Co., 13 Allen, 381; Ward v. Railroad Co., 47 N. Y. 29. The same general rule has been often recognized as applying to carriers by sea in this circuit as well as in the second circuit. Oakes v. Richardson, 2 Low. 173, 178; Page v. Munro, Holmes, 232; Rowe v. The City of Dublin, 1 Ben. 46; The Success, 7 Blatchf. 551; The Giulio, 34 Fed. Rep. 909. But this ease does not require us to go so far, because it clearly appears that these parties, at the time of contracting together, knew and contemplated that the cattle were not to be sold before arrival, and were to be sold at the first possible market day after arrival; and, under such circumstances, there can be no doubt whatever that the carrier is liable to the shipper for the fall in the market value of his goods. Telegraph Co. v. Hall, 124 U. S. 444, 456, 8 Sup. Ct. Rep. 577; The Parana, 2 Prob. Div. 118, 121, 123. Decree affirmed, with interest and costs.