115 F. 919 | S.D. Ala. | 1902
The libelant brings this suit to recover damages for breach, of contract on the part of the vessel to deliver a cargo of cattle shipped by him to Havana, Cuba. The ship sailed August n, 1901, and while on her voyage, on the night of the I2th-i3th of August, encountered a terrific storm in the Gulf of Mexico, in which many of the cattle were lost by being carried overboard or killed or injured by the breaking down of the superstructure of the cattle fittings upon the deck, which was in great part broken away and also carried overboard. The bill of lading contains the following provisions:
“It is expressly stipulated that live stock shall be at the risk of the owner, shipper, or consignee thereof, and the steamship is in no way responsible for any accident or any mortality which may occur during the voyage, * * * from whatever cause arising. It is also mutually agreed that steamer reserves the right to load the live stock either under or on deck of steamer, shippers accepting fittings, fastenings, and ventilation as satisfactory. It is also mutually agreed that this shipment is subject to all the terms and provisions of, and all exemptions from liability contained in, an act of congress of the United States approved on the 13th day of February 1893 [known as the “Harter Act”].”
“In every contract for the carriage of goods there is an implied engagement on the part of the carrier to furnish safe and suitable means of transportation, and in the case of a carrier by ship to supply a ship which is not only seaworthy, but is also reasonably fit to carry the cargo stipulated for in the bill of lading. It is also elementary law that a carrier by vessel cannot escape liability for the loss or injury
In The Prussia, 35 C. C. A. 625, 93 Fed. 837, the court said:
“It is the duty of the carrier by water, when he offers 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. * * * But it is competent for the parties by express contract to modify the obligations which would otherwise devolve upon the carrier, including even that of providing a seaworthy vessel, and short of any modifications which will exempt him from the consequences of his own misconduct or negligence, or those for whom he is responsible, such contracts, though strictly construed against the carrier, are given full effect.”
In Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 441, 9 Sup. Ct. 472, 32 L. Ed. 788, it is said that:
“Special contracts between the carrier and the customer, the terms of which are reasonable, and not contrary to public policy, are upheld; such as those exempting the carrier from responsibility for losses happening from accident, * * * or for perishable articles, or live animals when injured without default or negligence of the carrier.”
The warranty that a ship is fit at the beginning of a voyage to safely carry the cargo received by her, which is decided to be implied where the bill of lading is silent, cannot be implied if the parties have chosen to contract otherwise. The burden of proof in such case is not upon the carrier, but upon the shipper, and there must be sufficient evidence of the carrier’s negligence before the shipper can recover. The Southwark (D. C.) 104 Fed. 103.
The proctors for libelant do not, as I understand it, question these principles of law, but their contention is that, through the negligence of the owner of the steamship, or of those for whom he is responsible, the ship was unseaworthy, and improperly equipped, in that the fittings of the pens or compartments provided for the cattle were insufficient and insecure, both in construction and material; and that the cattle were improperly and negligently stowed on the ship by being too much crowded in the pens, and that the loss complained of was attributable to these causes. The claimant takes issue on this contention, and alleges that the loss was attributable solely to the perils of the sea. The evidence on the part of the claimant shows the encountering by the ship of a terrific storm of wind and heavy seas, characterized by the master of the ship as “a very heavy hurricane,” with wind from 90 to 100 miles an hour. The first mate, who had been going to sea ioj4 years, speaks of it as “the most terrible storm” he ever saw. The second mate has been going to sea 10 years, and says he “never saw such a big storm before.” This evidence shows a specific and. adequate cause for the loss of the cattle, consistent with the seaworthiness of the ship, and warrants the conclusion that this was the immediate cause of the loss. This, then, puts-the burden on libelant to show that the result would have been prevented by the exercise of due care and diligence in the construction of the fittings of the vessel, and in the proper stowage of the cattle. My opinion is that, notwithstanding the stipulations in the bill of lading, the owner of the ship-
The preponderance of evidence clearly shows the seaworthiness of this vessel in respect to her fittings and fastenings. It shows that they were in accordance with the custom and usage of this port with vessels engaged in the same trade prior to the storm1 in which the loss here complained of occurred; that this particular vessel had been regularly running in the trade for four or five months prior to1 that time; that her fittings were substantially like those of the other vessels in the same line; that libelant had been a regular shipper of cattle with the line of steamships to which the Tjomo belonged for about two and a half years, and had shipped on the Tjomo nearly ever since.she had been in the trade, and that he was familiar with her fittings for cattle. The libelant described the character of the fittings, and stated that some of the planks.out of which they were constructed were split at the ends, and that the nails would not catch well, and that some part of the structures was weak. He, however, stated that his observation of this condition of things was several weeks — perhaps one or two months — before the trip on which the loss complained of occurred. There was some other evidence on the part of libelant as to the character and condition of the fittings of tins steamship, but it related to them subsequent to the storm. There was also expert testimony for both libelant and claimant on the question of the sufficiency of fittings) of the character of those shown ±0' have been constructed on the
Was there a want of proper skill and care in stowing the cattle? *Tt is well settled that in determining what is proper stowage the customs and usages of the place of shipment are to be considered, and, if these customs are followed, and if none of the known and usual precautions for safe stowage are omitted, no breach of duty or negligence can be imputed to the ship, and in case of damage under great stress of weather the injuries will be ascribed to perils of the seas.” The Titania (D. C.) 19 Fed. 107. Dibelant testified that he saw all of his cattle after they had been put aboard the ship, except one car load of 24, which had not been loaded at the time he was aboard; that they were loaded later. He said his cattle were too crowded, and that he told the first mate of the ship, who was present, that they were crowded, but that the first mate was not superintending or supervising the loading of the cattle; that a stevedore was, and that he made no complaint to the stevedore, or to the master of the ship; that he does not know how many cattle he had aboard without seeing the bill of lading. He further testified that there were 85 grown cows in two pens, — 43 and 42, — and he thought there were 60 or 65 calves divided in the two pens, and that there were from 70 to 80 cows and calves in each of the pens. It does not appear that he counted the cattle. He says he had shipped a great many cattle by this ship and others in the same line, and that the usual load was from 18 to 25 in a pen. W. J. Denton testified on behalf of libelant that he is now in the cattle business with libelant; that he observed the loading of the steamship Tjomo in last August, when libelant’s cattle were shipped; that he told libelant his cattle were crowded too many in a pen; did not know how many;
My judgment is that the libelant is not entitled to recover, and that the libel must be dismissed.