20 F. 869 | S.D.N.Y. | 1884
The libel in this case was filed to recover $23,600, the value of a quantity of Spanish gold coin shipped, on the twenty-seventh day of May, 1880, on board the steam-ship Saratoga, and consigned to Havana, but which was not delivered there because stolen from the steamer, as the evidence shows, before she left New York. The coin was in bags contained in a wooden box, which was strapped with iron, and was about 18 inches long, 12 wide, and 8 deep. It was received on board the steamer, as she lay at her wharf, about 1 o’clock in the afternoon, some three hours only before she sailed. It was delivered to one of the quartermasters, who immediately carried it to the locker, where it was deposited and locked up. The evidence leaves no reasonable doubt that, within an hour or two after-wards, the locker was entered by a former employe of the ship, who had been discharged on the previous voyage; that the box was broken open by him, the bags of coin stuffed around his waist; and that, with the coin about him, he went off the steamer, by the usual gangway, and in broad daylight, shortly before the ship sailed.
The bill of lading exempts the vessel from liability for loss occasioned by “pirates, robbers, thieves, * * * or from any act, neglect, or default of the master or mariners.”
The defendant’s vessel was a general ship, and a common carrier. The clause of the bill of lading exempting her from liability for any “act, neglect, or default of the master or mariners” is therefore invalid, and affords no defense, if the loss was occasioned through their negligence. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174; The Hadji, 16 Fed. Rep. 861; 18 Fed. Rep. 459.
It is not necessary to consider the conflicting views as to the ship’s liability under the exception of “thieves, robbers,” etc., had the theft been committed by one of her own employes, (Spinetti v. Atlas Steamship Co. 80 N. Y. 71; Taylor v. Liverpool, etc., L. R. 9 Q. B. 546;) nor what effect, in the consideration of that question, should be given to the principles laid down by the supreme court, in Railroad Co. v. Lockwood; since Jacques, who is satisfactorily shown to have committed the theft, was not at this time in the ship’s employ, but had been previously discharged.
In Clark v. Barnwell, 12 How. 272, 281, the court say:
“But if it can be shown that it (the loss) might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, they may still be held liable. It is competent Cor the libelants to show that the respondents might have prevented it (the loss) by proper skill and diligence in the discharge of their duties.”
In Transp. Co. v. Downer, 11 Wall. 129, 133, the court say:
“If the danger might have been avoided by the exercise of proper care and skill on the part of the defendant, it is plain that the loss should bo attributed to the negligence and inattention of the company, and it should be held liable, notwithstanding the exception in the bill of lading.” See, also, tii;n Hundred and Thirty Quarter Casks of Sherry Wine, 14 Blatchf. 517; Dedekham v. Vosa, 3 Blatchf. 44; Richards v. Hansen, 1 Fed. Rep. 54, 63; The Invincible, 1 Low. 225; The Montana, 17 Fed. Rep. 377.
There can be no doubt that this rule, which, upon the above authorities, is applicable to the other exceptions of the bill of lading, is equally applicable to an exception of loss through theft or robbery. The exception of loss by “robbers, thieves/’ etc., applies to all goods alike; but it does not, therefore, follow either that the ship is relieved of all care whatsoever against loss by theft, or that only the same kind of care is required as regards coin, or other valuables, as would be sufficient as respects ordinary merchandise. The effect of the exception is to relieve the ship as a common carrier from its liability as a guarantor against loss by theft; and also to relievo the ship, as I think, from that high degree of care, which may be termed extreme care, which might naturally be expected to accompany its extreme obligation as a guarantor against theft in any event. But notwithstanding the exception of theft, the ship still remains liable for all ordinary, all customary, all reasonable 'diligence in the care of the goods intrusted to it; having reference to the nature of the goods themselves, their liability to ipjury or loss, whether by theft or by any other cause, the temptations to theft, and the facility with which it may be committed. This principle is recognized and well settled in
The principal facts relied on to show negligence in this case relate to the place of the locker, its imperfect fastening, and the want of reasonable watch of persons coming on board and going off the ship. The locker was a small place in the run of the ship, beneath the deck of the “glory-hole,” about six feet high, six feet long, and four feet wide. It was lined with sheet-iron; and the only access to it was through a scuttle two feet square in the deck or floor of the glory-hole. The latter was a small room in the after-part of the ship, approached only through the reai of the cabin by stairs descending about six or seven feet. It was used as a sleeping-room for the waiters, and had 10 or 12 berths. The scuttle to the locker beneath was a part of the floor of this room, flush with it, and designed to be fastened by means of an iron bar extending across it, which was permanently fastened at one end, and at the other end was fastened by a padlock. In the edge of the scuttle upon one side was a heavy lock having two stout bolts projecting, when locked, into the adjoining edge of the deck or floor. There was a key-hole in the scuttle, the key of which was in charge of the purser. When the box of coin was put in this locker, the purser was called arid the lock fastened. But the bar across the top was not secured by the padlock, either then or at any time during "the voyage following. Before the box was placed in the locker the purser had left the key loose upon his desk or hung up in his room. His room was approached by two doors, which were usu
I cannot hold, upon the evidence, that the place where the locker was put was, in itself, an improper one, so as to constitute negligence. The evidence shows that the place of this locker, in the run of the ship, under the glory-hole, was frequently used for such purposes; and that in some of the last and best steamers built that place was selected as the safest. In those the scuttle was secured by two iron bars across the top, fastened by padlocks, without any lock in the edge of the scuttle. In other cases, safes or lockers in the cabin are used, with upright doors.
There are several particulars, however, wherein I feel bound to
(1) The failure to lock the iron bar across the top of the scuttle. This bar was a part of the equipment of the ship, and one of the provisions for the security of the locker. The failure to use it was neglect of one of the customary and ordinary means of security. It cannot be called immaterial or unnecessary. Even if not used when there was no coin in the locker, had it been used as soon as the coin was put there, it would probably have prevented the theft, as there is no evidence that Jacques was provided with ready means to unlock the padlock,.and every obstruction is of the greatest importance where the theft, to be successful, must be accomplished in a very brief space of time.
(2) The lack of reasonable vigilance to prevent tampering with the 'fastenings of the locker before the coin’was placed there. No safe can be of any value if proper care is not exercised to prevent its locks or keys being tampered with. This care is equally necessary whether the safe at the moment contains valuables or not.' The evidence shows that no special care was taken of the key of the main lock,, until after the coin had been received. I am inclined to think, however, that the key was immaterial in this case, because the inference from the evidence is that the scuttle, before the coin was received, was left unlocked. But it was want of reasonable care to leave the lock unfastened, when it was so slightly secured in the edge of the scuttle that the whole lock was easily removable.
(8) Neglect of any precautions to prevent access to the glory-hole after this treasure was received. If it be said that the waiters, whose berths were in the glory-hole, might be expected to supply the needful precaution against thieves, the evidence shows that no reliance was to be placed on them, and that they were plainly remiss in the duty which they owed to the ship in not reporting at once their clear observation and knowledge that Jacques was engaged in some illicit or criminal design. Some guard or check ought to have been provided against repeated access to the glory-hole and locker by persons having no business there.
(é) I cannot resist the conclusion that there was negligence also in the proper observation of Jacques upon his repeated visits to the ship after his discharge, and also at the time when he left the ship ■ with his booty visibly and plainly stuffed about him. These repeated visits excited the suspicions of two of the seamen, who observed him as above stated. They knew the danger of theft of their clothing on sailing days, and they gave Jacques sufficient watch and examination to satisfy themselves that he was not stealing their clothes. They did suspect he was carrying off smuggled articles; and, in my judgment, they knew that he was engaged in some criminal project. The plan of the theft required Jacques to come upon the ship three .times in the prosecution of -his design during the few days the ship
While the facts in this instance present none of those evidences of gross negligence which were exhibited in the case of King v. Shepherd, 3 Story, 349, 361, I cannot avoid the conclusion that there was a lack, in the particulars above mentioned, of that reasonable vigilance and caution to prevent theft which the law imposes upon the carrier, notwithstanding the exception of loss by theft or robbery; and a lack of that care also which, by the common understanding, the ship is expected to exercise. This negligence, both before and at the time of the theft, co-operated with.it. Without this neglect, I am satisfied the theft would not have been accomplished; and the libelant is therefore entitled to a decree for $22,871.50, with interest from June 1, 1880, and costs.