No. 41 | 2d Cir. | Dec 3, 1923
(after stating the facts as above). The essential features of the case are stated in the opinion of Judge Ward below.
As there is argument here that the vessel was not seaworthy, we state at the outset that we are satisfied that she was unseaworthy, within the definition of The Southwark, 191 U.S. 1" court="SCOTUS" date_filed="1903-10-19" href="https://app.midpage.ai/document/the-southwark-95920?utm_source=webapp" opinion_id="95920">191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65" court="SCOTUS" date_filed="1903-10-19" href="https://app.midpage.ai/document/the-southwark-95920?utm_source=webapp" opinion_id="95920">48 L. Ed. 65, for manifestly, on the evidence, the leakage of about 11 per cent, was due to the fact that the oil tanks were defective. Thus we are brought to the two principal contentions of appellant.
1. Whether article 16 modifies the warranty of article 3 presents a familiar problem; i. e., of determining whether article 16 is or is not consistent with article 1. While the captain was bound to clean the tanks to the satisfaction of charterer’s inspector, the provision that “the steamer is not accountable for leakage” was clearly not an additional precaution, as in Church Cooperage Co. v. Pinkney, 170 F. 266" court="2d Cir." date_filed="1909-04-13" href="https://app.midpage.ai/document/church-cooperage-co-v-pinkney-8771259?utm_source=webapp" opinion_id="8771259">170 Fed. 266, 95 C. C. A. 462, but was a modification of or an exception to the warranty of seaworthiness. As leakage was the proximate cause of the loss complained of by libelant, the vessel, because of article 16, cannot be held liable unless the charter party comes within sections 1 and 2 of the Harter Act (Comp. St. §§ 8029, 8030).
2. It is strongly urged by appellant that the sections, supra, of the Plarter Act apply to a contract, as here, of private carriage. These sections are as follows:
“Section 1. It shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect.
*508 “Sec. 2. It shall not be lawful for any vessel transporting merchandise or property from or between ports of the IJnited States of America and foreign ’ ports, her owner, master, agent or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of said vessel to exercise due diligence, properly equip, man, provision and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo- and' to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided.”
The Harter Act was not incorporated in the charter party; but, of course, if applicable, that would be immaterial, because the act would be read into the contract. The bill of lading, however, contained the provision that:
“This shipment is subject to all terms and provisions of * * * the act of Congress * * * approved on the 13th day of February 1893.”
The suit at bar, however,, was not brought upon the bill of lading; but a suit thus brought would not have helped libelant, because, where a bill of lading is issued by the master to a charterer, who has contracted for the full capacity of the ship, such bill of lading is merely a receipt, and not a contract, and, in any event, in such circumstances, the master would not have authority to change or modify the charter by a bill of lading. The Fri, 154 F. 333" court="2d Cir." date_filed="1907-04-30" href="https://app.midpage.ai/document/the-fri-8764268?utm_source=webapp" opinion_id="8764268">154 Fed. 333, 83 C. C. A. 205.
In sections 1 and 2, supra, it will be noted that the reference is solely to “any bill of lading or shipping document” and a charter is neither. These sections manifestly refer to common carriers-, and were enacted to prevent owners of vessels from imposing self-exculpatory terms which were unjust to shippers.
In The Fri, supra, the voyage was from Carthagena, Columbia, to Cienfugos, Cuba. The court said (154 Fed. at page 338, 83 C. C. A. 210):
“In this case, however, a common carrier was not a party to the contract. When a charter party gives to the charterer the full capacity of the ship, the owner is not a common carrier, but a bailee to transport as a private carrier for hire. * * * It has not yet been decided by any court that a condition in such a contract, to which the Harter Act has no application, relieving a shipowner from liability on account of the carelessness of its employees, is-contrary to public policy.”
The words “such a contract” clearly referred to a charter party which gave the charterer the full capacity of the ship, and were not intended to mean a charter party for a voyage between two foreign ports. Whether or not for the purposes of the case the quotation, supra, was dictum, it nevertheless stated the law.
The history and purpose of the Harter Act confirms this view. See The Delaware, 161 U.S. 459" court="SCOTUS" date_filed="1896-03-02" href="https://app.midpage.ai/document/the-delaware-94398?utm_source=webapp" opinion_id="94398">161 U. S. 459, 470-474, 16 Sup. Ct. 516, 40 L. Ed. 771" court="SCOTUS" date_filed="1896-03-02" href="https://app.midpage.ai/document/the-delaware-94398?utm_source=webapp" opinion_id="94398">40 L. Ed. 771, and Knott v. Botany Mills, 179 U.S. 69" court="SCOTUS" date_filed="1900-10-22" href="https://app.midpage.ai/document/knott-v-botany-mills-95335?utm_source=webapp" opinion_id="95335">179 U. S. 69, 76, 21 Sup. Ct. 30, 45 L. Ed. 90" court="SCOTUS" date_filed="1900-10-22" href="https://app.midpage.ai/document/knott-v-botany-mills-95335?utm_source=webapp" opinion_id="95335">45 L. Ed. 90. Many other cases, such as The Silvia, 171 U.S. 462" court="SCOTUS" date_filed="1898-10-17" href="https://app.midpage.ai/document/the-silvia-94929?utm_source=webapp" opinion_id="94929">171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241" court="SCOTUS" date_filed="1898-10-17" href="https://app.midpage.ai/document/the-silvia-94929?utm_source=webapp" opinion_id="94929">43 L. Ed. 241, have been cited, which deal with the third section of the act, but they are not in point upon the question now presented.
Decree affirmed, with costs.