Thomas v. Ship Morning Glory

Buchanan, J. Plaintiff claims of defendants for loss, occasioned by leakage, upon a shipment of Brandies per ship Morning Glory, from Bordeaux to New Orleans. The shipment consisted of twenty-five half pipes, twenty-five quarter pipes, and other packages. On the arrival of the ship at her port of destination, and the unloading of her cargo, it was found that three of the half pipes, mentioned in the bill of lading, were entirely empty, and a quarter pipe partially so. The witnesses are of opinion that these casks were crushed by the pressure of cargo. The defence is put upon two grounds: 1st. That the bill of lading contained the following clause: “Not accountable for leakage.” 2d. That by the custom of the port of Bordeaux, which was observed in the case of this ship, the stowage of the cargo was done by stevedores employed and paid by the shippers of the cargo. [270] 1. The common carrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God (perils of the seas) or of public enemies. But the tendency of the more modern decisions has been to permit the carrier to limit his responsibility by special notice of the extent of the liability which he means to assume. The goods, in that case, says Chancellor Kent, (Comm’s, lecture 40,) are understood to be delivered on the footing of a special contract. Story on Bailments, § 549. Angelí on Carriers, § 220. In conformity with these authorities, under a clause in a bill of lading, “ not accountable for leakage,” it was lately held by Mr. Justice Campbell, sitting in the Circuit Court of the United States in this city, that the shipper was bound to prove negligence or fault in the carrier, before he could recover the value of certain glass show cases, conveyed on freight from Philadelphia to this port, and delivered broken. Case of Merryman v. Brig May Queen. The doctrine thus sanctioned by precedent seems conformable to the general principle, that in whatever manner a man has bound himself towards another, he shall remain bound. The clause in the bill of lading limiting the responsibility of the carrier, is not to be understood as having exempted him from liability for leakage occasioned by the fault or negligence of himself or his agents ; but as throwing upon the bailor the burden of proof of such fault or negligence, as a prerequisite to recovery under the contract. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 Howard, 384. The fault which is imputed to the ship in argument, is bad stowage of cargo, causing an undue pressure upon the casks in the lower tier. The proof of bad stowage is not satisfactory. The Morning Glory was a very large ship, of upwards of 1100 tons burden. Her cargo consisted of 2519 casks of wine and brandy. The casks in her lower hold were stowed six or seven tiers deep, upon a bed of ballast, and properly dunnaged. The ship experienced very rough weather on her passage from Bordeaux to New Orleans, with a very heavy head sea, causing her to pitch, bows under. Her cargo does not appear to have shifted, but some of the quoins worked out from between the casks. The port-warden, MeCerren, an experienced seaman, gives it as his opinion that the loss by leakage was smaller, in proportion to the size of the cargo, than is usual in ships from Bordeaux. II. The second ground taken, is that the ship is not liable in this instance for the stowage of the cargo, admitting it to have been defective; because, by the custom of the port of Bordeaux, the charterer of the vessel, or the broker who procures the cargo, acting for the shippers, has a recognized right to employ the stevedore who loads the ship. The proof of this custom is entirely conclusive. It appears from the testimony of many shipmasters in the Bordeaux trade, that the right of the shipper, or his agent the ship broker, to employ his own stevedore to load the cargo, has been sustained, in spite of the opposition of masters of. American vessels, in that port. It is also proved that the Morning Glory was loaded on this voyage by a stevedore employed by the shippers of the cargo. This evidence may afford an additional reason for the insertion of the clause of limitation of the carrier’s responsibility, which we find in the bill of lading. As the carrier had no control of the loading of his ship, it seems but natural that he should stipulate not to be liable for the fault or incompetency of the person who loaded her ; and which person was, in truth, the servant or agent of the opposite party in the contract of affreightment. Judgment affirmed, with costs.