Pierce v. Winsor

CLIFFORD, Circuit Justice. 2 [This is an appeal in admiralty from the decree of the district court of the United States for this district, in a cause of contract, civil and maritime. The libellant was the owner of the ship Golden City, and the respondents were the charterers for a voyage from Boston to San Francisco. Charter-party bears date on the 4th day of May, 1858, and the libel was filed on the 10th day of November, 1859. The respondents chartered the whole ship, with the usual exceptions of the cabin and necessary room for the accommodation of the crew and stowage of the sails, cables, and provisions; and the stipulation was that the ship should be at the sole use and disposal of her charterers for the voyage, and that no goods or merchandise should be laden on board otherwise than from the charterers or their agent. The owners engaged to make necessary repairs, man, and victual the ship, and take and receive on board the vessel during the voyage all such lawful goods and merchandise as the charterers or their agent might think proper to ship. Among other things the libellant alleged that the respondents. as the charterers of the ship, while she was lying at New York, delivered or caused to be delivered on board the ship to the master, to be carried to Boston, and thence to San Francisco, on the voyage under the charter-party. one thousand and four cakes of an article called mastic; that the article is composed of bitumen and earthy matter, and at a certain degree of heat will soften and melt, and will then set so as to become very hard' and flinty; that on a voyage such as that from Boston to San Francisco, the tendency on that behalf is so grfeat that, unless the article is properly and skilfully packed, the cakes are liable to melt and run together, and among the other goods stowed in contact with the same, and to diffuse itself in the hold of the ship, and then to set and harden so as to injure and destroy the other goods, and to cause great and unusual expense in discharging the other goods and the mastic out of the ship; that the article was then new in commerce, and that the effect of a voyage upon it was unknown to the master and to the libellant; that the respondents did not give to the master or to the libellant any notice of the character of the article or of its liability or tendency to melt and do damage as aforesaid, and that neither the master nor himself had any knowledge or means of knowledge upon the subject, or that the mas-tie might not properly be stowed in the way that goods are usually stowed for such voyages; and he also alleged that the mastic did soften and melt on the voyage, and that the-cakes did run together and among the other goods placed in contact with the mastic, diffusing itself in the hold of the ship, and did then set and become hard and flinty, whereby the goods were injured and destroyed, and the libellant was compelled under the bills of' lading to make good the loss and damage, and was put to additional expense in discharging the goods and freeing the ship of the.mastic. [Most of the material allegations of the libel are denied in the answer. The respondents deny that the mastic was a new article of commerce, or that they were bound to ascertain any further respecting the mastic, or-give any notice to the libellant as to its character or the manner in which it should bestowed, or that they were in that particular- or in any other respect at fault in the premises, as alleged by the libellant. Lawful goods and merchandise they had a right to-ship; and they allege that the mastic was such under the charter-party, and that they shipped the same without any fault, and that the same was received by the consignees, paying freight on the same, and that the mastic was put to the purposes for which it was designed, and consequently they allege that if' the libellant was put to any expense or suffered any damage, it was through his own. fault, and that of his agents. Both parties took testimony in the district court, and, after the hearing, the court entered a decree in favor of the libellant, and the respondents appealed to this court. The mastic, as alleged, was shipped by the government of the United States from their works at New York to-the fortification at Fort Point at San Francisco. When delivered on board it was in. cakes, and was stowed in bulk in the run. Upon the arrival of the ship at the port of' destination, it was found that the mastic had melted on the voyage, and that the cakes had run together and among the cargo stowed in contact with it, and had hardened as alleged, in the libel, and in that state was adhering to the sides of the ship and to certain portions of the cargo. The amount of damage done to the cargo, which was paid by the master on account of the ship, including the extra expense in discharging the mastic, exceeded nineteen hundred dollars. Two other ships, the Dasha way and the Fleetwing, which sailed shortly after the Golden City, also had mastic on board, shipped in the same way, and the proofs show that when the vessels arrived out it was in the same condition. These cargoes, with one shipped in casks at a later period, and after the facts respecting the earlier shipments had become known, were all the cargoes, so far as known, ever shipped by the United States to San Francisco, or on any long voyage. Such mastic is manufactured by the government at New York, and is used on fortifications, and has been repeatedly shipped to the various ions on the Atlantic coast and in the Gulf, and had always been. [651] shipped in bulk without its being known that it was liable to he so affected by the heat in the hold of the vessel. Suit is brought by the owners of the vessel against the charterers to recover the damage and expense as already explained. The libellant does not allege or prove that the respondent had any knowledge of the dangerous character of the article, but he claims to recover upon the ground that there is always an implied contract on the part of the charterer or- general shipper of the merchandise that the goods shipped shall not be of a character dangerous to the ship or the rest of the cargo, and that the want of knowledge of the true character of the article will not release such charterer or shipper from the responsibility which the law imposes upon him as incidental to his contract.] 2 Two propositions may be assumed as beyond dispute: first, that the case is not one of inevitable accident; and, secondly, that the owner of the ship is without any actual fault arising out of any act of his own. or that of the master or his agents. Inevitable accident is not pretended, and if the-pretence were set up, it could not be supported for a ' moment. Union S. S. Co. v. New York & Virginia S. S. Co., 24 How. [65 U. S.] 313. Some attempt was made to impute fault to the owner of the vessel, because she was delayed in Boston for the purpose of repairs, but the explanations are satisfactory, and the position wholly unsupported. Neither party had any knowledge of the dangerous character of the article, so that it may be said that there was no actual fault on either side, except such, if any, as the law implies from the nature of the transaction. The charterers put up the ship as a general ship, and under the terms of the charter-party the ship was at their sole use and disposal, to ship such lawful goods as they might think proper; and it was expressly stipulated that their stevedore should be employed by the owner, in Boston. The stowage of the mastic was made in the usual way, and it is not disputed it would have been proper, if the article had been what it was supposed to be when it was received and laden on board. Want of greater care in that behalf is not a fault, because the master had no knowledge. or means of knowledge that the article required any extra care or attention beyond what is usual in respect to other goods. The proper precautions in respect to loss in the vessel, therefore, bad been taken, if the goods had not been of a dangerous character, which was wholly -unknown to the master or the owner of the ship, or his agents. But damage -was occasioned, and loss and expense were incurred, and the only question is, Who must suffer? Where the owners of a general ship undertook that they would receive the goods, and safely carry and deliver them at .the destined port, it was held in Brass v. Maitland, 6 El. & Bl. 481, that the shippers undertook that they would not deliver to be carried on the voyage packages of goods of a dangerous nature, which those employed on behalf of the ship-owner might not, on inspection, be reasonably expected to know to be of a dangerous nature, without expressly giving notice that they were of a dangerous nature. ' Such was the principle laid down in that case, but the reasoning of the court in support of the rule is even more applicable to the present case. Although those employed on behalf of the ship-owner have no reasonable means, during the loading of a general ship, to ascertain the quality of the goods offered for shipment, or narrowly to examine the sufficiency of the packing of the goods, the shippers, says Lord Campbell, have such means, and it seems more just and expedient that, although they were ignorant of the dangerous quality of the goods, or the insufficiency of the packing, the loss occasioned thereby should fall upon the shippers than upon the ship-owner. Accordingly, he held that the shippers, and not the ship-owners, must suffer, if, from the ignorance of the former, a notice was not given to the latter, which they were entitled to receive, and from the want of notice a loss had arisen, which must fall on either the shipper or the owner of the vessel. . Undoubtedly that rule, as is well contended by the libellant, rests upon the same principle as that which is applied in other commercial transactions of an analogous character. Where damage is sustained in a case not falling within the category of an inevitable accident, and neither party is in actual fault, the loss shall fall on him who, from the relation he bears to the transaction, is supposed to be possessed of the necessary knowledge to have avoided the difficulty. Baron Parke applied that rule in the case of Gibson v. Small, 24 Eng. Law & Eq. 40, with great force and vigor, in the ease of a voyage policy, holding that the law did not regard exceptional eases, but wisely laid down a general rule, which is a most reasonable one in the vast majority of voyage policies, that the assured impliedly contracts to do that which he ought to do before the commencement of the voyage. Judge Sprague approved the rule, upon the ground that it ordained that the loss should fall upon the party who generally had the best means of informing himself as to the condition of the article to be shipped, which undoubtedly is the foundation principle on which the liability rests. Were the rule otherwise, it might, as was well said by the district judge, encourage negligence, and even induce the general shipper or charterer to try experiments with articles unknown to commerce, at the expense of his ship-owner. In view of the whole case, I am of the opinion that there is no error in the record. The decree of the district court is accordingly affirmed, with costs. Footnotes [2] [From 2 Am. Law Reg. (N. S.) 139.] [2] [From 2 Am. Law Reg. (N. S.) 139.]