93 F. 837 | 2d Cir. | 1899
This is an appeal from a decree (88 Fed. 531) dismissing a libel filed to recover damages caused by the deterioration of a quantity of dressed beef shipped by the Schwarzschild & Sulzberger Company at New York in July, 1894, on the steamship Prussia, to be transported to Hamburg, and which was insured against loss or damage by the libelant. The beef wqs shipped under a bill of lading which contained the clause as follows:
“Dressed-Meat Clause.
“It is expressly agreed that the goods named herein are shipped and carried at the sole risk of the shippers or owners thereof, and that, the shipowners shall in no case be responsible for any loss or damage thereof, or in any wise relating thereto, whether such loss or damage arise from defect or insufficiency, either before or after shipment, in the hull of the said steamer, or in her machinery, boilers, or refrigerating chambers machinery, or in any part of the refrigerating apparatus, or in any material, or the supply or use thereof, used in the process of refrigeration, and whether such loss or damage, however arising, be caused by the negligence, default, error in judgment, of the pilot, master, officers, engineers, mariners, refrigerating engineers, or other servants of the shipowners, or persons for whom they are responsible, or by negligence in stowage.”
Tbe Prussia was engaged in the business of a common carrier, running in a regular line between New York and Hamburg, and was equipped with cold-storage rooms, maintained for the purpose of carrying dressed meat, and with refrigerating apparatus designed to maintain a temperature in the compartments slightly below the freezing point, necessary to preserve the meat from injury. She was a new vessel, built at Belfast, and completed in May, 1894. The refrigerating apparatus was built at Dartford, England, and was. what is known as a “duplex machine,” consisting of two machines situated side by side, and driven by one engine. This apparatus was thoroughly tested by the makers before it was sent to the ship. After, it was put into the vessel it was again tested, under the supervision of the makers, the shipbuilders, and an engineer in the employ of the owner, the Hamburg-American Packet Company-; this test continuing from 11:30 a. m. May 29, 1894, to 3:40 p. m. May 30th. The proper temperature of the refrigerating rooms was maintained during this
It is conceded that the cause of the injury to the meat was the failure of the starboard machine to work, owing to the presence of a leather washer in the¡ apparatus. This could not be detected until the apparatus was taken apart after the arrival of the vessel at Hamburg. It was then found in the suction pipe leading from the evaporator, by an engineer sent to Hamburg by the makers of the apparatus for the purpose of investigating the trouble. The proofs denote that the washer must have been left in the apparatus by the inadvertence of the employes of the maker when putting it together. By Uie operation of the apparatus during the voyages of the vessel, it gradually worked its way through the evaporation coils to the suction pipe, where the smaller diameter caused it to obstruct the efficient working of one of the machines.
We agree with the learned judge who decided the case in the court below that the libelant was not entitled to recover upon the theory that the owners of the Prussia were negligent in providing defective refrigerating apparatus for the purposes of the transportation. The apparatus had been constructed by builders of requisite capacity, and, after it had become a part of the equipment of the steamship, had been tested by competent experts in the most thorough manner, and found to be perfect. It, was new, and had not been used long enough to impair its efficiency; but it had been used sufficiently to demonstrate that it was adequate, and apparently in perfect condition.
It is the duty of the carrier by water, when he oilers a vessel for freight, to see that she is in suitable condition to transport her cargo in safety; and he impliedly warrants that this duty has been fulfilled. And, when he proposes to transport across Ihe Atlantic a cargo of frozen meat, we agree, as was adjudged in The Maori King [1895] 2 Q. B. 550, and Queensland Nat. Bank v. Peninsula & Oriental Steam-Nav. Co. [1898] 1 Q. B. 567, that he must he taken to stipulate with the shipper that the vessel is provided with suitable apparatus of requisite efficiency to enable him to deliver it in proper order. But
In the present case the bill of lading contained a clause especially addressed to restricting the liability of the carrier in respect to the transportation of dressed meat, and the parties to the instrument agreed that the carrier should not be responsible for any loss or damage to it arising from defects or insufficiencies in any part of the refrigerating apparatus, whether arising before or after the shipment. While this clause would not extend to exempt the carrier for loss or damage caused by his own negligence, we have no doubt it protects him against such as arises in consequence of a latent defect in the apparatus, existing without his knowledge or negligence. The express contract displaces the warranty which would be implied in its absence.
It is insisted for the appellant that the clause is in violation of section 2 of the Harter act. In our opinion, the provisions of this section only prohibit contracts relaxing the obligation of carriers to exercise due diligence in respect to .providing seaworthy vessels, and in respect to the handling and storage of cargoes. The warranty of seaworthiness is that a vessel is competent to resist the ordinary action of the sea during the voyage, without damage or loss of cargo (Dupont De Nemours v. Vance, 19 How. 162),—in other words, in such a state, as to repair, equipment, and crew, as to be able to encounter the ordinary perils of the adventure (Gibson v. Small, 4 H. L. Cas. 390). The carrier is not an insurer against damage proceeding “from an intrinsic principle of decay, naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of the ship” (Clark v. Barnwell, 12 How. 282); and the implied understanding created by the proposal to transport and deliver a commodity, which the shipper and carrier know cannot be practically performed unless the carrier is provided with the proper instrumentalities in customary use for its preservation, is not a warranty of seaworthiness. Section 2 of the Harter act is the complement of section 3, which excuses the shipowner if he has exercised due diligence to make the vessel “in all respects seaworthy, and properly manned, equipped and supplied.” The two sections are to be read together, both being intended to enforce the same rule of diligence in respect to the same subject-matter.
We conclude that the damage sued for arose in consequence of a latent defect in the refrigerating machinery, that due diligence was exercised by the owner of the steamship to provide suitable and per-
The decree is affirmed, with costs.