New Jersey Steam Navigation Co. v. Merchants' Bank
47 U.S. 344 (1848)

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U.S. Supreme Court

New Jersey Steam Navigation Co. v. Merchants' Bank, 47 U.S. 6 How. 344 344 (1848)

New Jersey Steam Navigation Co. v. Merchants' Bank

47 U.S. (6 How.) 344

Syllabus

A decree of the Circuit Court of Rhode Island affirmed which was a judgment upon a libel in personam against a steamboat company for the loss of specie carried in their boat by one of the persons called "express carriers," and lost by fire in Long Island Sound.

In February, 1839, the State of New Jersey chartered a company by the name of the New Jersey Steam Navigation Company, with a capital of five hundred thousand dollars, for the purpose of purchasing, building, repairing, and altering any vessel or vessels propelled by steam, and in the navigation of the same &c.; under which charter they became proprietors of the steamboat Lexington.

On 1 August, 1839, the following agreement was made:

"This agreement, made and entered into this 1st August, A.D. 1839, in the City of New York, by William F. Harnden, of Boston, Massachusetts, on the one part, and Ch. Overing Handy, President of the New Jersey Steam Navigation Company, of the other part, witnesseth: "

"That the said William F. Harnden, for and in consideration of the sum of two hundred and fifty dollars per month to be paid monthly to the said New Jersey Steam Navigation Company, is to have the privilege of transporting in the steamers of said company between New York and Providence via Newport and Stonington, not to exceed once on each day, from New York and from Providence, and as less frequently as the boats may run between and from said places, one wooden crate, of the dimensions of five feet by five feet in width and height, and six feet in length (contents unknown), until 31 of December, A.D. 1839, and from this date."

"The following conditions are stipulated and agreed to as

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part of this contract, to-wit:"

"The said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden, and the New Jersey Steam Navigation Company will not in any event be responsible either to him or his employers for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate or otherwise in any manner in the boats of the said company."

"Further that the said Harnden is to attach to his advertisements, to be inserted in the public prints, as a common carrier exclusively responsible for his acts and doings, the following notice, which he is also to attach to his receipts or bills of lading, to be given in all cases for goods, wares, and merchandise and other property committed to his charge to be transported in said crate or otherwise:"

" Take notice -- William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to, the proprietors of the steamboats in which his crate may be and is transported in respect to it or its contents at any time."

"Further that the said Harnden is not to violate any provisions of the post office laws, nor to interfere with the New Jersey Steam Navigation Company in its transportation of letters and papers, nor to carry any powder, matches, or other combustible materials of any kind calculated to endanger the safety of said boats or the property or persons on board of them."

"And that this contract may be at any time terminated by the New Jersey Steam Navigation Company, or by the said Harnden, upon one month's notice given in writing."

"Further, that a contract made by the said Harnden with the Boston and New York Transportation Company, on 5 July, A.D. 1839, is hereby dissolved by mutual consent."

"In witness whereof the said William F. Harnden has hereunto set his hand and seal, and the president of the said New Jersey Steam Navigation Company has hereto affixed his signature and the corporate seal of the company."

"WM. F. HARNDEN [L.S.]"

"CH. OVERING HANDY, President"

"Sealed and delivered in presence of"

"ROSWELL E. LOCKWOOD"

It is proper to remark that prior to the date of this agreement, Harnden had made a similar one with the Boston &

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New York Transportation Company, which became merged in the New Jersey Steam Navigation Company on 1 August, 1839. Harnden, having begun to advertise in the newspapers in July, 1839, whilst his contract with the Boston company was in force, continued to use the name of that company in the following advertisement, which was inserted in two of the Boston newspapers until the end of the year 1839.

"Boston and New York Express Package Car -- Notice to Merchants, Brokers, Booksellers, and all Business Men."

"Wm. F. Harnden, having made arrangements with the New York & Boston Transportation, and Stonington & Providence Railroad Companies, will run a car through from Boston to New York, and vice versa, via Stonington, with the mail train, daily, for the purpose of transporting specie, small packages of goods, and bundles of all kinds. Packages sent by this line will be delivered on the following morning at any part of the city free of charge. A responsible agent will accompany the car who will attend to purchasing goods, collecting drafts, notes, and bills, and will transact any other business that may be entrusted to his charge."

"Packages for Philadelphia, Baltimore, Washington, New Haven, Hartford, Albany, and Troy, will be forwarded immediately on arrival in New York."

"N.B. Wm. F. Harnden is alone responsible for any loss or injury of any articles or property committed to his care; nor is any risk assumed by, or can any be attached to, the Boston and New York Transportation Company, in whose steamers his crates are to be transported, in respect to it or its contents, at any time."

The above-mentioned contract with the New Jersey Steam Navigation Company being about to expire, Harnden addressed letters, on 7 and 16 December to the president expressing a desire to renew it, and, on 31 December, received a letter from Mr. Handy, the President, renewing the contract for one year from 1 January, 1840.

The New Jersey Company also published the following notice:

"Notice to Shippers and Consignees"

"All goods, freight, baggage, bank bills, specie, or any other kind of property taken, shipped, or put on board the steamers of the New Jersey Steam Navigation Company must be at the risk of the owners of such goods, freight, baggage &c., and all freight consisting of goods, wares, and merchandise, or any other property landed from the steamers, if not taken away

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from the wharf without delay, will be put under cover at the risk of the owners of said goods, freight, baggage &c. in all respects whatsoever."

The bills of lading or receipts given by the company were in the following form:

"New Jersey Steam Navigation Company"

"Received of ________ on board the steamer ________ master ________ marked and numbered as in the margin, to be transported to ________ and there to be delivered to ________ or assigns, danger of fire, water, breakage, leakage, and all other accidents excepted; and no package whatever, if lost, injured, or stolen, to be deemed of greater value than two hundred dollars."

"Freight as customary with the steamers on this line."

"N.B. The company are to be held responsible for ordinary care and diligence only in the transportation of merchandise, and other property, shipped or put on board the boats of this line."

"Dated at _____ the _____ 18__"

"(Contents unknown.)"

In January, 1840, Mr. Harnden received from the Merchants' Bank in Boston a large amount of checks and drafts upon New York which he was to collect in specie and transmit the proceeds to Boston.

On 13 January, 1840, the sum of eighteen thousand dollars, in gold and silver coin, was shipped by William F. Harnden, and received on board of the steamboat Lexington, said boat being the property of the New Jersey Steam Navigation Company and employed in making regular trips between New York and Stonington in Connecticut. The shipment was made at New York. The boat left New York about half past four o'clock in the afternoon, and in the course of a few hours a fire broke out, which totally destroyed the boat, the lives of nearly all the passengers and crew, and the property on board. The money, amongst the other property, was lost. As the circumstances under which the loss took place were much commented on in the argument, it may be proper to insert the narrative of Stephen Manchester, the pilot, who was examined as a witness:

"To the third interrogatory he saith:"

"She was near Huntington Lighthouse, some four miles east of the light, and between forty and fifty miles from New York. It was about

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half past seven o'clock in the evening. I know the hour because we always take down on a slate the hour that we pass every lighthouse. This was the business of the pilot. I was in the wheelhouse when I heard that the boat was on fire. Someone came to the wheelhouse and told the wheelman and myself that the boat was on fire. I stepped out of the wheelhouse and went up to the smoke pipe. I saw the fire blazing up through the promenade deck, around the smoke pipe. The promenade deck was on fire, and was blazing up two or three feet. I looked down a scuttle which went through the promenade deck, and which was about three or four feet on the larboard side, a little abaft of the smoke pipe; it was not exactly abreast of it or abaft of it, but quartering. The scuttle led down between the after part of the boiler and the forward part of the engine."

"In looking through the scuttle, I saw blaze and smoke, as if she was on fire there. I can't say whether or not the main deck was on fire at that time. I next returned to the wheelhouse, and hove the wheel hard over a-port, which would sheer the boat to the southward, for the purpose of running the boat ashore to the nearest land, which was Long Island shore. Just as I got the wheel hove a-port, Captain Childs came in and put his hand on the spoke of the wheel. As he took hold of the wheel, the starboard wheelrope gave way. Within an instant from that time, the smoke broke into the wheelhouse, so that we were obliged to leave it. Captain Childs went out of the wheelhouse and went aft, and I did not see anything of him after that. I then stepped out and called to some of our people on the forecastle to get out the fire engine. They got it out. I then told them to get out the hose and the fire buckets. The fire then spread so between decks that they could not get at the hose or buckets. I then went to the life boat, and found some men there casting off the lashings with which she was fastened to the promenade deck. I caught hold of the lashings, and told them not to cast them off till we had attached a hawser to the boat. I sang out to someone on the forecastle to pass up a hawser to attach to the boat, which was done. I then told them to take the hawser attached to the boat, and to fasten it to the forward part of the steamer. The fire then was burning up through the deck and around the life boat, and I cut the lashings, and told the men to throw the boat overboard; I then jumped down on to the forward deck, caught hold of the hawser, and found that it was not made fast to the steamboat, as directed. I found the boat was getting away from us, and I sang out to the people about there to hang on to the hawser, or we should lose her. They let go of the hawser, one after another, until they let the boat

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go. The promenade deck was at that time all of a blaze to the bulkhead. It was about fifteen or twenty minutes after I first heard of the fire that the life boat was let go. The life boat was somewhat burnt before she was thrown over. The next thing I, with the others on the forecastle, did was to empty the baggage cars and attach lines to them and throw them overboard for anyone to save himself that could. Some of those on the forecastle drew water with what buckets we had, and threw it on the fire."

"I then took the flagstaff and another spar that we had knocked off the bulwarks and fastened them to those two spars to make a raft to get on to. I threw the raft overboard, and several persons, some two or three, got on to it; but it was not buoyant enough to hold them up. That was all we could do, excepting to throw water, which we did as long as we could. The boat was then nearly burnt to the water's edge, and the forward deck was burnt and had fallen in. We then got cornered up so that we had no chance to throw water, and were obliged to leave the boat to burn. Those left on the forecastle, some eight or ten in number, then asked me what they could do to save themselves. I then told them that I saw no chance; that we had done all that we could do. We then began to get overboard; some hung on to the crates at the forward part of the boat, and some got on to the guard. I got down on to the raft I have before mentioned. I found it sinking under me, and I lifted myself up again by a piece of rope which I had, and which I whipped over a spike. Then I jumped from the raft on to the piece of guard, and from this guard I got on to a bale of cotton. I found a man by the name of McKinney on the bale. After I had got on, a man standing on this piece of guard asked if there was room on the bale of cotton for another man. I made him no answer. He jumped to get on to it, and in doing so knocked off McKinney. I hauled McKinney on to the bale again, and the man returned to the guard. I found the bale was lashed to this piece of guard, and I took my knife and cut away the lashings; I took up a piece of board which was floating by, and shoved the bale clear of the guard, and let it drift down the Sound before the wind. McKinney froze to death about daylight the next morning, and fell off the bale. Between eleven and twelve o'clock the next day, I was picked up by the sloop Merchant, Captain Meeker. When I first heard that the boat was on fire, I had been in the wheelhouse, after taking my tea, for about twenty-five or thirty minutes."

On 10 February, 1842, the Merchants' Bank filed a libel in the District Court of the United States for the District of Rhode Island against the New Jersey Steam Navigation

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Company, as the owners of the Lexington, for "a cause of bailment, civil and maritime." As the libel is not long and the circumstances of this case are peculiar, it is deemed proper to insert it.

"To the Honorable John Pitman, Judge of the District Court of the United States within and for the District of Rhode Island."

"The libel and complaint of the President, Directors, and Company of the Merchants' Bank of Boston, a corporation incorporated by the Legislature of the Commonwealth of Massachusetts, against the New Jersey Steam Navigation Company, a corporation incorporated by the Legislature of the State of New Jersey, owners of the steamboat Lexington, for a cause of bailment, civil and maritime: "

"And thereupon the said President, Directors, and Company of the Merchants' Bank of Boston do allege and articulately propound as follows:"

"First. That the respondents, in the month of January in the year of our Lord one thousand eight hundred and forty, were common carriers of merchandise on the high seas from the City of New York, in the State of New York, to Stonington, in the State of Connecticut, and were then owners of the steamboat Lexington, then lying at the port of New York in the State of New York, and which vessel was then used by the respondents as common carriers, as aforesaid, for the transportation of goods, wares, and merchandise on the high seas from the said port of New York to the said port of Stonington in the State of Connecticut."

"Second. That the complainants, on the high seas, and within the ebb and flow of the tide and within the admiralty and maritime jurisdiction of the United States and of this Court, on the thirteenth day of January, A.D. 1840, contracted with the respondents for the transportation, by water, on board of the said steamboat Lexington, from the said port of New York to the said port of Stonington, of certain gold coin, amounting to fourteen thousand dollars, and of certain silver coin, amounting to eleven thousand dollars, to the libellants belonging, and the said respondents then and there, for a reasonable hire and reward, to be paid by the libellants therefor, contracted with the libellants that they would receive said gold coin and silver coin on board of the said steamboat Lexington and transport the same therein on the high seas from said New York to said Stonington and safely deliver the same to the libellants."

"Third. That the libellants, on the said thirteenth day of

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January, A.D. 1840, at said New York, delivered to the said respondents on board of the said steamboat Lexington, then lying at said New York, and within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States and of this Court, and the respondents then and there received on board of said steamboat the said gold coin and silver coin for the purpose of transporting the same by water on the high seas from said New York to said Stonington and to deliver the same to the libellants as aforesaid."

"Fourth. That the steamboat Lexington sailed from said port of New York with the said gold coin and silver coin on board on said thirteenth day of January, A.D. 1840, and bound to said port of Stonington; yet the respondents, their officers, servants, and agents, so carelessly and improperly stowed the said gold coin and silver coin, and the engine, furnace, machinery, furniture, rigging, and equipments of the said steamboat were so imperfect and insufficient, and the said respondents, their officers, servants, and agents, so carelessly, improperly, and negligently managed and conducted the said steamboat Lexington during her said voyage that by reason of such improper stowage, imperfect and insufficient engine, furnace, machinery, furniture, rigging, and equipments, and of such careless, improper, and negligent conduct, the said steamboat, together with the said gold coin and silver coin to the libellants belonging, were destroyed by fire on the high seas and wholly lost."

"Fifth. That by reason of the destruction of the said steamboat Lexington and of the said gold coin and silver coin, the libellants have sustained damage to the amount of twenty-five thousand dollars."

"Sixth. That the said New Jersey Steam Navigation Company are possessed of certain personal property within the said Rhode Island District and within the ebb and flow of the sea and within the maritime and admiralty jurisdiction of this Court, to-wit, of the steamboat called the Massachusetts, her tackle, apparel, furniture, and appurtenances, and of other personal property."

"Seventh. That all and singular the premises are true and within the admiralty and maritime jurisdiction of this Court, in verification whereof, if denied, the libellants crave leave to refer to the depositions and other proof to be by them exhibited in the cause. Wherefore the libellants pray that process in due form of law according to the course of admiralty and of this Court in causes of admiralty and maritime jurisdiction may issue against the respondents and against the said steamboat Massachusetts, her tackle, apparel, furniture, and appurtenances,

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or any other property to the respondents belonging within the said Rhode Island District, and that the said property or any part thereof may be attached and held to enforce the appearance of the respondents in this court to answer the matters so articulately propounded and to answer the damages which may be awarded to the libellants for the causes aforesaid, and that this court would be pleased to pronounce for the damages aforesaid and to decree such damages to the libellants as shall to law and justice appertain."

On the same day a monition and attachment were issued directing the steamboat Massachusetts, her tackle, apparel, furniture, and appurtenances, or any other property to the respondents belonging, within the Rhode Island district, to be attached. All of which was done.

In May, 1842, the respondents filed their answer, which is too long to be inserted. The substance of it was:

1st. They admitted the ownership of the Lexington, and her being used for the transportation of passengers, goods, wares, and merchandise between New York and Stonington.

2d. They denied any contract whatever with the libellants.

3d. They denied that the libellants ever shipped, or that the respondents received from the libellants, any gold and silver coin whatever.

4th. They asserted that whatever goods were received on board the Lexington were received under the advertisements and notices mentioned in a previous part of this statement.

5th. That the usage and custom of the company was to be held responsible for ordinary care and diligence only, and that this usage, being well known to the libellants, constituted a part of the contract of shipment.

6th. That the bill of lading, heretofore mentioned, was a copy of all the bills of lading given by the company, which was well known to the libellants.

7th. That the notice above mentioned was posted up on board the steamboat, and on the wharf, and in the office of the company, of which facts the libellants were informed.

8th. That the Lexington was accidentally destroyed by fire.

9th. They denied that the cotton was improperly stowed, that the engine, machinery &c., were imperfect and insufficient, that the officers carelessly, improperly, or negligently managed the boat, or that by reason of these things the boat was lost. The contrary of all these things was averred, and they further averred that they had complied with the requisitions of the Act of Congress passed on 7 July, 1838.

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In verification of this last averment, they filed the inspection certificate, dated on September 23, 1839.

On 18 October, 1842, the district court pronounced a pro forma decree dismissing the libel with costs, from which an appeal was taken to the circuit court.

Under the authority of the circuit court, commissions to take testimony were issued, under which a vast mass of evidence was taken on both sides.

The libellants offered evidence to prove the following positions: that the furnaces were unsafe and insufficient; that there was no proper casing to the steam chimney, nor any safe lining of the deck where the chimney passed through; that dry pine wood was habitually kept in a very exposed situation; that, especially, there was a very improper stowage or disposition of the cargo on board, considering what that cargo was; that the boat had no tiller chain or rope, such as the act of Congress, as well as common prudence, required; that there were on board no fire buckets, properly prepared and fitted with heaving-lines; that the fire engine was in one part of the boat, while the hose belonging to it was kept or left in another, and where it was inaccessible when the fire broke out, and that in other respects the respondents were guilty of negligence the more culpable, as the same boat had actually taken fire in her last preceding voyage, and no measure of caution had been taken to prevent a recurrence of the accident.

The respondents, on the contrary, offered evidence to rebut that adduced in support of the above, and particularly that the boat, hull, engine, boiler, and general equipment were good; that the most experienced men had been employed, without regard to expense, in putting her into complete order; that she had a captain, pilot, and crew equal to all ordinary occasions, and that respondents were not liable if they did not prove fit for emergencies which might appall the stoutest; that the boat was well found in tool chests; that there were on board a suction hose, fire engine, and hose, as required by the act of Congress; that they were stowed in a proper place; that sufficient reasons were shown why they were not available at the fire; that there were three dozen and a half of fire buckets on board; that the steering apparatus was good; that the loss of the boat did not result from her not having "iron rods and chains" instead of "wheel or tiller ropes"; that the parting of the wheel ropes, if occasioned by the fire, did not contribute at all to her loss.

At November term, 1843, the cause came on to be heard before the circuit court, when the court pronounced the following decree.

"This cause came on to be heard upon the libel, the answer

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of the respondents, and testimony in the case. The respondents submitted to a decree."

"Whereupon it is ordered, adjudged, and decreed that the said libellants have and recover of the said respondents the sum of twenty-two thousand two hundred and twenty-four dollars, and costs of suit, and that execution issue therefor according to the course of the court."

An appeal from this decree brought the case up to this Court.

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The Reporter understands that MR. CHIEF JUSTICE TANEY, MR. JUSTICE McLEAN and MR. JUSTICE WAYNE, concurred in the following opinion.

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