Lead Opinion
after stating the case, delivered the opinion of the court.
In The Edwin I. Morrison,
After renewed consideration of the subject, in the light of the able arguments presented at the bar, we seе .no -reason to doubt the correctness of the rule thus enunciated.
The proposition' that the warranty of seaworthiness exists by implication in all contracts for sea carriage, we do not
In our opinion, the shipowner’s undertaking is not. merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of thе voyage ; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects.'
The necessity of this conclusion is made obvious when we consider the settled rule in respect of insurance, for it is clear that the undertaking as to seaworthiness of the shipowner to the shipper is coextensive with that of the shipper to his insurer.
That rule is thus given by Parsons (1 Marine Insurance, 367): “ Every person who proposes to any insurers to insure his ship against sea perils, during a certain voyage, impliedly warrants that his ship is, in every respect, in a suitable condition to proceed and continue on that voyage, and to encounter all common perils and dangers with safety. . . . This warranty is strictly a condition precedеnt to the obligation of insurance ; if it be not performed, the policy does not attach; and, if this condition be broken, at the inception of the risk in any way whatever and from any cause whatever, there is no contract of insurance, the policy" being wholly void.”
In Kopitoff v. Wilson, 1 Q. B. D. 377, 379, 381, although, as there was no necessity to consider the law as to latent defects, whether such defects would constitute an exception cannot be said to have been passed on, the general rule was laid down as we have stated it, and the existence of the warranty in question on the part of a shipowner was asserted with reference to his character as such, and not as existing only in those cases in which he is also acting as a cаrrier. That was an action in which the plaintiff sought to recover damages for the loss of a
This was the view expressed by Mr. Justice Brown, then District Judge,.’in The Eugene Vesta, 28 Fed. Rep. 762, 763, ■in which he said: “There can be no doubt that there is an implied warranty on the part 'of' the carrier that his vessel shall be seaworthy, not only when she begins to take cargo
The reasons for the strict enfоrcement of the warranty, in insurance, have frequently been commented on.
In Douglass v. Scougall, 4 Dow, 269, 276, Lord Eldon said; “I have often had occasion to observe here, that there is nothing in matters of insurance of more importance than the implied warranty that a ship is seaworthy when she sails on the voyage insured; and I have endeavored, both with a view to the benefit of commerce and the preservation of human life, to enforce that doctrine as far as, in the exercise of sound discretion, I have been enabled to do so. It is not necessary to inquire, whether the owners acted honestly and fairly in the transaction ; for it is clear law that, however just and honest the intentions and conduct of the owner may be, if he is mis
Similarly, Mr. Justice Curtis, in Bullard v. Roger Williams Insurance Company, 1 Curtis, 148, 155, stated in his charge to the jury : “ There is an implied warranty connected with marine policies that the vessel, at the outset of her voyage, is seaworthy for the voyage in which she is insured. This obligation is imposed, by law, on the insured for sound reasons. It takes away all temptation to expose life and property to the dangers of the seas in vessels not fitted to encounter or avoid them. It is not a contract that the owner will use diligence to make his vessel seaworthy, but an absolute warranty that she is seaworthy, and if broken the policy is made void.” And Mr. Justice Story, in The Schooner Reeside, 2 Sumner, 567, 575, declared “every relaxation of the common law in relation to the dutiеs and responsibilities of the owners of carrier ships to be founded in bad policy and detrimental to the general interests of commerce.”
As the same warranty implied in respect of policies of insurance exists in respect of contracts of affreightment, that warranty is necessarily as absolute in the one instance as in the other.
In Putnam v. Wood,
This early case is cited by Chancellor Kent, who affirms the doctrine in these words: “ The ship must be fit 'and competent for the sort of cargo and the particular service in which she is engaged. If there should be a latent defect in the vessel, un
The high authority of Lord Tenderden, (Abbott on Shipping, 1st ed. 146,) Lord Ellenborough, (Lyon v. Mells, 5 East, 428,) Mr. Baron Parke, (Gibson v. Small, 4 H. L. C. 353, 404,) and. Lord Blackburn (Steel v. State Line Steamship Co., 3 App. Cas. 72, 86) may be invoked in support of this view, and it is sustained by decisions of this court; The Northern Belle,
Again, in The cargo ex Laertes, 12 P. D. 187, a steamship became disabled at sea owing to the breaking of her flywheel shaft through a flaw in the welding existing at the commencement of the voyage, but not discoverable by the exercise of any reasonable care, and it was held that she was pot seaworthy for the voyage, and that but for a limitation, on' the implied warranty, in the bills of lading, there would have been a breach.
The point is thus put by Judge Brown, of the Southern District of New York, in The Rover, 33 Fed. Rep. 515, 516: “This warranty extends to latent defects not discoverable by
It is urged that doubt is thrown upon the doctrine by the reasoning in Readhead v. Midland Railway Co., L. R. 4 Q. B. 39; L. R. 2 Q. B. 412. There a passenger sought to charge a common carrier for an injury occasioned by the breaking of an axle by reason of a hidden Raw ; and the Court of Exchequer Chamber held that a contract made by a general carrier 'of passengers for hire with a passenger is to take due care (including in that term the use of skill and foresight) to carry the passenger safely, and is not a warranty that the carriage in. which he travels shall be free from all defects likely to cause peril, although those defects were such, that no skill, care, or foresight could have detected their existence. But the court was careful to point out the broad distinction between the liabilities-of common carriers of goods and of passengers, and in the case at bar the shipowner was not only liable as such, .but as a common carrier, and subject to the responsibilities of that relation.
The case was decided in 1869, and those of The Glenfruin and The Laertes in 1885 and 1887, yet the latter rulings seem to have been accepted without question, and were certainly unaffected by any attempt to apply a rule in respect of road-worthiness in the carriage of passengers by a railroad to the warranty of seaworthiness in the carriage of goods by a ship.
In our judgment the Circuit Court rightly held that the warranty was absolute; that the Caledonia was unseaworthy whеn she left port; and that that was the cause .of the damage to libellant’s cattle.
This brings us to the inquiry whether the claimants can escape from the liability which the law imposed upon them by reason of the exceptions in the bill of lading.
These exceptions were: “The act of God, the Queen’s
It is claimed that the Caledonia was exempted from the losses caused by her unseaworthiness from the defective shaft at the commencement of the voyage by the exception of “ loss or damage from delays, . . . steam boilers and machinery or defects therein.”
As is well said by counsel for appellee, the exceptions in a contract of carriage limit the liability but not the duty of the owner, and do not, in the absence of an express provision, protect the shipowner against the consequences of furnishing an unseaworthy vessel. Steel v. State Line Steamship Company, 3 App. Cas. 72; Gilroy v. Price, App. Cas. (1893) 56; The Glenfruin, 10 P. D. 103; Kopitoff v. Wilson, 1 Q. B. D. 377; Tattersall v. National Steamship Company, 12 Q. B. D. 297; Thames & Mersey Ins. Company v. Hamilton, 12 App. Cas. 484, 490. If “the exceptions are capable of, they ought to receive, tо use the language of Lord Selborne in Steel v. Steamship Company, “ a construction not nullifying and destroying the implied obligation of the shipowner to provide a ship proper for the performance of the duty which he has undertaken.”
There was no exception in this bill of lading which in express words exempted the shipowner from .furnishing a seaworthy vessel at the commencement of the voyage. As the exceptions were introduced by the shipowners themselves in their own favor, they are to be construed most strongly against them, and we perceive no reason why the obligation to furnish a seaworthy vessel should be held to have been contracted away by implication. Their meaning- ought not to be extended to give the shipowner a protection, which, if intended, should have been expressed in clear terms.
In Tattersall v. Steamship Company, cattle had been shipped under a bill of lading, by which it was provided that the defendants were to be “ in no way responsible either for their escape from the steamer or for accidents, disease, or mortality, and that under no circumstances shall they be held liable for more than £5 for each of the animals.” Thе ship, after carrying a cargo of cattle on a previous voyage, was improperly cleaned, and those on this voyage took the foot and mouth disease. It was held that the liability of the defendants was not limited to £5 for each of the cattle, for the stipulations of the bill of lading related to the carriage of the goods on the voyage, and did not affect the obligation to have the ship fit for the reception of the cattle;
In The cargo ex Laertes, 12 P. D. 187, cargo was shipped under three different forms of bills of lading, the exceptions in which, so far as material, were respectively as follows; “ Warranted seaworthy only so far as ordinary care can provide ; ” “ warranted seaworthy only so far as due сare in the appointment or selection of agents, superintendents, pilots, masters, officers, engineers, and crew can insure it;” “owners not to be liable for loss, detention, or damage ... if arising directly or indirectly . . . from latent defects in boilers, machinery, or any part of the vessel in which steam is used, even existing at time of shipment, provided all reasonable means have been taken to secure efficiency.” These exceptions were held to limit the implied Avarranty of seaworthiness in accordance with the expressed intention of the parties to that precise effect, and for that reason only to take the case out of the general rule.
We are not dealing Avith the question of how far exceptions may be given effect in particular cases, but whether by those under consideration claimants were exempted from liability
. Something was said as to protection from liability by reason of the words in the original memorandum of agreement that “ the shipper assumes all risk of -mortality or accident, however caused, throughout the voyage.” We agree with the Circuit Court that the bill of lading can alone be considered as the contract between the parties, the memorandum being-preliminary merely; but we are also of opinion that the same rule of construction would apply to the memorandum as to the bill of lading, and that thе assumption of the risk of mortality or accident throughout the voyage did not constitute an exemption of the shipowner from his obligation to furnish a seaworthy vessel at its commencement.
By reason of the unseaworthiness of the Caledonia the cattle were not delivered at the time and place, when and where they should have been, and loss was incurred through shrinkage in weight from the protracted voyage and through fall in market value during the delay in arrival.
It is argued that a common carrier is not liable for mere delay and its consequences unless he has been at fault, and that claimants were in this case free from blame because the defect was a secret one. This contention, however, begs the question, for the conclusion upon this record is that claimants are responsible for breach of warranty notwithstanding the shaft was defective through hidden weakness. No question can be made that the shrinkage was a direct result of that breach, but it is further insisted that changes in market value were too speculative to furnish just basis for recovery. But as it is found as a fact that these parties, at the time of contracting together, knew and contemplated that the cattle were not to be sold before arrival, but were to be sold at the first possible market day after, arrival, it follows that the damages by reason of the fall in price were not remote, but flowed naturally from the breach of warranty. Howard v. Stillwell Mfg. Co.,
Decree affirmed.
Concurrence Opinion
with whom concurred
All the cases cited in the opinion of the court are those wherein either the ship or the cargo has suffered loss or direct damage, by reason of her unseaworthiness at the commencement of the vоyage. Both in this court and in the court below the case is treated as one involving the liability of the carrier as an insurer of the goods in question. The authorities, however, make a clear distinction between the loss of or direct damage to goods on account of unseaworthiness, and the consequences-of mere delay. In the one case the contract is to deliver the goods at all events, the acts of God and the perils of the sea alone-excepted. In the other, it is to use all reasonable exertions to carry the goods to the port of destination within the usual time.
The distinction is nowhere better or more concisely stated than in Parsons v. Hardy,
The principle of this case was affirmed in Wibert v. New York & Erie Railroad,
In Thayer v. Burchard,
The English cases are even more explicit than our own, in treating the contract of the carrier as demanding only the exercise of due diligence with respect to the time of delivery. A leading case is that of Briddon v. Great Northern Railway, 28 L. J. Exch. 51; S. C. 4 H. & N. 847 (Am. ed.), which-was an action against a railway company for a failure to deliver
The ease of Taylor v. Great Northern Railway, L. R. 1 C. P. 385, 387, 388, was an action for damages sustained in consequence of a delay in the delivery of three hampers of poultry, sent by'the railway for the early London market. The delay was occasioned by an accident which occurred on defendant’s line to a train of another railway company, which had running powers over that portion of the line. The accident resulted solely from the negligence of the servants of the other corporation. It was held that the railway was not responsible, Erie, C. J., observing: “ I think a common carrier’s duty to deliver safely has nothing to do with the time of delivery; that is a matter of contract, and when, as in the present case, there is no express contract, there is an implied contract to deliver within a reasonable time, and that I take to mean a
Counsel for the appellee has failed to cite an authority which lends countenance to the theory of the opinion in this case, that the liability of the carrier for the consequences of delay is coextensive with his liability for the loss of the goods carried. Not only do the general principles of law hold him liable simply for the exercise of diligence, but the bill of lading in this case expressly exonerates him for “loss or damage from delays.” From reasons of public policy, and from the fact that the carrier and his servants are solely entrusted-with the custody of goods carried, and the owner has no means of protecting himself against their embezzlement or negligence, the law has imposed upоn the carrier the stringent liability of an insurer. As was said by Lord Holt in Coggs v. Bernard, 2 Ld. Raym. 909, 918: “This is a politic establishment contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have' an opportunity for undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in- that point.”
These reasons, however, have no application to his carrying within a reasonable time. As to such contract, the law imposes upon him no extraordinary liability.
As it is admitted in this case that the delay was occasioned .by a defect in the ship, which could not have been discovered by the ordinary methods of inspection, it seems to me clear that the carrier should not be held responsible. If it be said
The exception, then, must be referable to latent defects in the machinery, existing at the time the voyage began. Of course, it does not apply to negligent defects or to those which might have been discovered by the exercise of ordinary care, but as to any latent defects I regard this exception as exonerating the carrier. There are but few cases, either in this-country or in England, where the direct question has been presented, but in all those to which our attention has been called similar exceptions are treated as valid and binding. Thus in The Miranda, L. R. 3 Ad. & Ec.561, a steam vessel became disabled at sea, in consequence of her machinery breaking down. Her cargo had been shipped under bills of
The cases cited in thp opinion of the court do not seem to me to support its conclusion. In Steel v. State Line Steamship Co., 3 App. Cas. 72, the cargo was damaged by sea water getting into a port hole which had been negligently fastened.
If, under the circumstances of the present case, the vessel be not exonerated by the exception in the bill of lading of “loss or damage from machinery or defects therein,” I am wholly unable to conceive what defects the exception was intended to cover. I am not aware that there is any magic in the words “ implied warranty of seaworthiness,” which enables them to override all the other general principles of law applicable to the responsibility of the carrier, as well as the express terms of his contract with the shipper.
I am, therefore, constrained to dissent from the opinion of the gourt, and am authorized to state that Mr. Justice Hablan and Me. Justice Beewee concur in this opinion..