Tysen v. Moore

Ingraham, P. J., and Brady, J. We agree that there should be a new trial, upon the ground that the exception to the charge at folio 86 was well taken. The justice erred in saying to the jury that the only question was whether the cask containing the wine brandy was properly made and sufficient, so that with ordinary care, or proper care, in bringing it around from San Francisco to this port, the cask would have arrived' safely. This withdrew from the jury the question whether the casks were properly stowed, an element in the cause to the benefit of which the defendants were entitled. [449] Geo. G. Barnard, J. The appellants’ counsel presents two points (among others) on this appeal: 1st. That if any one is liable for the injury it is the owner of the hull, and not the defendant, who is the charterer for the voyage. 2d. That if the cask in question was well and sufficiently stowed, and secured in a proper manner, according to the well established custom existing at the port of lading at the time of its stowage, then neither the owner nor the charterer is liable, and that the court below erred in refusing to charge to this effect when so requested. By the, bill of lading the contract was to deliver the cask in question in good order and well conditioned at the port of Yew York, the danger of the seas only excepted. There is no doubt but that the bill of lading correctly sets forth the contract made for the carrying of the cask; for Milo Hoodley, who was the manager of the plaintiffs, at San Francisco, and who shipped the cask, testified: “ The bills of lading corresponded in their terms with what my son told me of the agreement.” The question presented by the evidence was, whether this loss arose from the perils of the seas or not; if it did, the defendants are not liable. The phrase “ perils of the seas,” covers all losses or damages which arise from the extraordinary action of the wind and sea. (Parsons on Marine Ins., vol 1, p. 544.) What is to be considered ordinary and what extraordinary in the degree and effects of the perils, is a question for the jury, often of much difficulty. (1 Phillips on Ins. § 1087.) In some instances the damage done is a sufficient proof of the extraordinary degree of the operation of the peril. The question of most frequent occurrence, in regard to damage to the body of the ship is, whether the extent of the injury does not rather prove the ship to have been unseaworthy, than that the peril was extraordinary. (Id. 1105.) A proper [450] and sufficient stowage of a cargo implies that.it is secured from damage by the ordinary action of the wind and sea. If the cargo is not so secured it is not properly and sufficiently stowed. When then a cargo, on its arrival at the port of discharge is found to be damaged, and the damage is of a character that shows it must have occurred on the voyage, and it is established that the cargo was properly and sufficiently stowed and secured, the damage will be ascribed to the perils of the seas, unless it is affirmatively shown to be due to other causes; and the carrier under a bill of lading exempting him from liability for loss occurring through the perils of the sea, will not be liable for the damage, unless it is affirmatively shown that the damage might have been avoided by the exercise of proper skill and diligence at the time. If it is shown that the damage could have been avoided by such exercise of skill and diligence, then the damage is deemed to have occurred not through the perils of the seas, but rather through the carrier’s negligence and inattention to his duty, and he is liable. Upon these principles the cases of Clark v. Barnwell, (12 How. U. S. 272, cited from pp. 280, 281;) Rich v. Lambert, (12 id. 347, cited from pp. 356, 357;) and Muddle v. Stride, (9 Carr. & Payne, 163,) rest. Applying these principles to the present case, we find that on the arrival of the cargo the cask in question had one of its stoves broken by the pressure on it during the voyage, of one of the chocks used in stowing the cargo. There is a mass of testimony to the effect that the cargo was properly and sufficiently stowed and secured; there is no evidence tending to show that the damage cpuld have been prevented by the use of care and diligence during the voyage. There is no affirmative evidence showing that the damage can be ascribed to any cause other than that of the perils of the seas, except such as can be drawn [451] from the nature and character of the injury thereof. (See 1 Phillips on Ins. § 1105, cited supra, which, so far as it tends to show what caused the chock to work down, ascribed it to bad stowage. [New York General Term, April 4, 1870. The liability of the party who contracted to carry these goods, therefore, depends on the solution of the question whether the cargo was properly and sufficiently stowed and secured or not. There was a great deal of evidence given in support of the affirmative, while for the negative there was the inference to be drawn from the nature and character of the injury, and from the absence of all evidence that the vessel encountered anything but ordinary weather during her passage. The liability would depend on the finding of the jury on this question. The defendant, therefore, was entitled to have the jury instructed in accordance with his request that if they found in the affirmative on this question, their verdict should be for the defendant. Having come to this conclusion, it is unnecessary, on this appeal, to consider or pass upon the first point raised by the appellants. The judgment should be reversed, and new trial ordered, with costs to abide the event. a Hew trial granted. Ingraham, Geo. G. Barnard and Brady, Justices.]