119 F. 375 | S.D.N.Y. | 1902
This was an action brought by the libellant, by rights of subrogation, to recover certain amounts paid by it to various shippers of goods on the steamer Seaboard for delivery at Carrabelle, Florida, in September, 1899.
- The principal facts have been agreed upon and may be stated briefly as follows:
The steamer, prior to and during September, 1899, was being run by one W. C. Taylor, as charterer under the name of the Mobile Steamship Company, as a common carrier of such freight as she might, from time to time, receive for transportation between Mobile and Carrabelle and other points; that upon each trip from Mobile, the steamer was put upon the berth as a general ship, and advertised as such, and received such cargo as was offered ber, giving receipts in a form which, among other things, provided that “The carrier is not to be liable for any damage to any goods which is capable of being covered by insurance” and that the agent of the vessel should have “the option of hiring lighters at the. port of destination for the landing of the * * * goods, at the expense and risk of the owners of the said goods”; that about the middle of September, 1899, or a little later, the steamer Seaboard was placed upon berth for cargo in Mobile, and the goods in question were shipped upon her to certain consignees, in good order and condition, to be transported to Carrabelle and there delivered to the respective consignees, or to a connecting carrier, to be forwarded to the consignees; that the Walker Steamship Company owned the steamer in May, 1899, and continued to own it until May 25, 1900, during which time she was
The only substantial controversy upon the facts arose with respect to the seaworthiness of the lighter and some testimony was taken in that connection but I do not think it needs discussion because it clearly appears that the lighter became unseaworthy through being negligently overloaded by the officers and crew of the steamer and it was from such cause that the loss occurred. Two lighters were used for the purpose of delivering the cargo, and the one in question sank alongside of the ship a few minutes after the loading was finished.
Various defenses have been put forward by the claimant to escape liability: (1) the fact of the vessel being chartered and the shippers being put upon inquiry with respect to the provisions of the charter; (2) the effect of the insurance in connection with the provision in the bill of lading relating thereto; (3) the effect of the Harter Act, and (4) laches.
(1) The fact of the steamer being operated under a charter, even if the fact were known to the shippers, would not serve to relieve the steamer from a lien arising from default in her obligation to the cargo —Freeman v. Buckingham, 18 How. 182, 15 L. Ed. 341; The Alert, 9 C. C. A. 390, 61 Fed. 113.
(2) The stipulation with respect to insurance will not excuse loss by the carrier’s negligence. The Hadji, (C. C.) 20 Fed.-875; The Egypt, (D. C.) 25 Fed. 320.
(3) This loss is within section 1 of the Harter Act [U. S. Comp. St. 1901, p. 2946]. and not within section 3. The primary cause of the loss was negligence in the delivery of the cargo, for which no exemp
(4) It does not appear that the claimant purchased the vessel without knowledge of the liens and it is not therefore in a position to invoke the doctrine of laches. Moreover, the delay between the time of the accident, September, 1899, and the filing of the libel, July 28, 1900, was not so unreasonable as to affect the libellant’s rights in view of the circumstances of the case.
Decree for libellant, with interest. An order of reference may be entered, if the amount of loss is disputed.