16 F. 861 | S.D.N.Y. | 1883
This action was brought to recover $2,500 damages for injuries by water to certain cases of dry goods shipped on board the steam-ship Hadji, bound from New York to St. Thomas, on the twenty-eighth of May, 1880. The steam-ship Hadji was constructed with water ballast tanks, the tops of which were iron plates forming the floor of the lower hold. They were secured by iron plates running fore and aft between the plates and the ship’s frame. Over the plates forming the floor of the hold was a permanent planking three inches thick, with a well aft to drain off any water that might get into the hold, and sluices running forward to the engine-room for the same purpose. The dry goods in question were stowed upon the floor in the lower hold on the port side. ^ The vessel, on her voyage, met with no heavy weather. When the cases were discharged they were found damaged by water that had come into the hold through the leaking of the tops of the ballast tanks. On examination it was found tha't some of the rivets in the tops of the tanks had lost their heads, so that the tops would move up and down, and the seams leak; and in the rolling of the ship, through ordinary navigation, jets of water would spurt up and thus wet the goods. Before leaving New York the floor was dry, and the cargo was dunnaged as usual.
From the vessel’s protest on arrival, as well as from the evidence, it must be held that the immediate cause of the damage to the goods was the imperfect and insufficient construction of the ballast tanks themselves. The" supporting plates or frames were insufficient, and additional ones were afterwards provided.
The defense is based upon two exceptions against liability contained in the bill of lading:
(1) It excepts “loss or damage resulting from any of the following perils, whether arising from the negligence, default, or error in judgment of the pilot, master, etc., or otherwise, howsoever, namely: risk of craft or hulk, or transshipment, explosion, heat, etc., collision, stranding, or other perils of the seas,” etc., with numerous other items of excepted perils.
That the word “hulk” is used in the same sense, and that the whole phrase “risk of craft or hulk or transshipment” refers to the transfer of goods from the ship by other small boats, is further confirmed by another clause which is found at the end of the bill of lading, among other stipulations, to the following effect: “The goods to be discharged from the ship as soon as she is ready to unload into hulk of Lazaretto, or hired lighter if necessary, by the agents of the owners of the vessel, at the shipper’s or consignee’s risk and expense, after they leave the ship’s deck.” Tho latter clause is in effect but a more amplified statement of the exemption of the ship, which the previous clause also would secure. The argument that exemption from the same liability would not be twice provided for in the same hill of lading, and that consequently the words first used, “craft or hulk,” must he taken to refer to the Hadji herself, would at best bo of doubtful force, while the use of the word “transshipment” in the
(2) The other clause in the bill of lading, upon which exemption from liability is claimed, provides that “no damage that can be insured against-will be paid for.”
The goods in this case having been insured by the shippers, the insurance company, during the pendency of this suit, have paid the libelants, and the suit has been continued for the benefit of the insurance company, ^.s against the right of the libelants to recover at the time when the libel was filed, the clause in question afforded no valid defense if the immediate and proximate cause of the damage to the goods was the negligence of the owners or their agents in not making the vessel fit for the voyage in her construction or equipment. Macl. Shipp. 406-410; Richards v. Hansen, 1 Fed. Rep. 54. The stipulation, moreover, that “no damage that can be insured against will be paid for,” is, in effect, a stipulation against liability. Even under the less rigid decisions ’ of the courts of this state, general words exempting the carrier from liability, however strong, do not exempt him from liability for his own negligence, unless that he stated clearly and explicitly. Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180, 185; Westcott v. Fargo, 61 N. Y. 542; Magnin v.Dinsmore, 56 N. Y. 168; Potter v. Sharp, 24 Hun, 179.
In the United States supreme court, however, in the case of Railroad Co. v, Lockwood, 17 Wall. 357, 381, 384, it was determined, upon full consideration, that a carrier cannot stipulate for exemption from responsibility for the negligence of himself or his servants. In the prior case of N. J. Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, where the owners of the Lexington had stipulated that Harnden was to be alone responsible for the loss or injury of any articles committed to his care, and that no risk was assumed by or could be .attached to the proprietors of the steam-boat, Nelson, J., in delivering the opinion of the court, says:
“We think it would be going further than the intent of the parties, upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for willful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands.”
The language last quoted is especially applicable to this case. The damage to the goods on board the Hadji did not arise from any peril of the sea or dangers of navigation; nor, properly considered, from
The clause in question would, therefore, furnish no defense to the libelants’ claim for damages in this case, because the injury to the goods must be hold to have arisen from the negligence of the owners of the vessel in her faulty and insufficient structure and condition; as much so as if the injury to the goods had been occasioned by one .of the bulk-heads falling down and crushing the goods during the voyage through insufficient support. The insurance company, having paid for the damage to the goods, is subrogated to the libelant’s right of recovery, and have a right to continue the prosecution of the action for its own benefit. The cases to which reference has been made, where this right of subrogation has been cut off, were determined upon the express provisions of the contract that the carrier should have the benefit of any insurance on the goods in case of loss or damage. Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Phoenix Ins. Co. v. Erie & Western Trasp. Co. reported in Lawson, Carr. 383. See, also, Taylor v. Liverpool, etc., Co. L. R. 9 Q. B. 546. There is no such express contract in this case, and it cannot bo fairly implied from the mere provision that “no damage that can be insured against will be paid for.” The very numerous and particular provisions in the bill of lading in this case forbid the supposition that had it been the intention of the parties that the carrier should have the benefit of any insurance, that intention would not have been in-
The libelant is entitled to judgment, with costs. Unless the damage be agreed upon, a reference may be taken to ascertain the amount.