Lawrence v. Minturn
58 U.S. 100

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U.S. Supreme Court

Lawrence v. Minturn, 58 U.S. 17 How. 100 100 (1854)

Lawrence v. Minturn

58 U.S. (17 How.) 100




A consignee of goods has a right, in his own name, to libel a vessel for their nondelivery unless there is something to show that he had no interest in them. The presumption is that he had an interest, and to defeat the right to sue in his own name, this presumption must be rebutted by proof.

In the present case, there is no such proof.

The goods being thrown overboard, the facts in this case show that the jettison was justifiable and the loss occasioned by the perils of the sea.

The nature of the contract explained between the master and owner of a vessel and the shipper where the latter knows that the articles shipped are to be carried upon the deck, and the cases upon this subject examined.

In this case the evidence shows that there was no want of due diligence and skill either in the construction of the vessel or the stowage of the cargo.

Minturn libeled The Hornet for the nondelivery of two steam boilers and chimneys shipped on board of that vessel in the port of New York and consigned to the libellant.

Alexander M. Lawrence and seven others intervened as claimants, and after a hearing upon the pleadings and profits, the district judge decreed that the libellant should recover $25,275 and costs. From this decree the claimants appealed to this Court.

The case is stated in the opinion of the Court.

Page 58 U. S. 105

MR. JUSTICE CURTIS delivered the opinion of the Court.

This is an appeal from a decree of the District Court of the United States for the Northern District of California, sitting in admiralty. The appellee filed his libel in that court against the ship Hornet for the nondelivery of two steam boilers and chimneys shipped on board that vessel in the port of New York and consigned to the libellant.

The appellants intervened as owners of the ship, and upon the pleadings and proofs the district court made a decree in favor of the libellant. The claimants appealed.

The first question to be determined on the appeal is whether the libellant had a right to sue in his own name. The facts bearing on this question are that on the nineteenth day of July, 1851, Edward Minturn, at New York, made a contract with the agent of the ship Hornet, which was reduced to writing, as follows:

"Memorandum of agreement to ship on board the ship Hornet by Edward Minturn, Esq., two boilers, two chimneys or steam chests, smoke pipes in sheets, and some grate bars, in all about forty tons weight, from this port to San Francisco, California, for the sum of forty-five hundred dollars, with five percent primage, the whole to go on deck except the grate bars and sheet iron for smoke pipe. It is understood that the shipper is to put them on the deck of the vessel at his expense, and the ship is to discharge them as soon as convenient, and they are to be received at Cunningham's wharf, in San Francisco, without other than the ordinary charge per day for discharging. It is further understood that the said boilers are to be ready to go on board the

Page 58 U. S. 106

vessel on the ninth day of August or as soon thereafter as the ship may require them, giving shipper two days' notice thereof."



"Agent for ship Hornet"

It appeared that the boilers and chimneys were manufactured in New York upon an order given by James Cunningham; that they were intended for the steamer Senator, a boat then in California; that James Cunningham and Edward Minturn were part owners of The Senator, and that they paid the makers for these articles. The bill of lading was as follows:

"210. Shipped in good order and well conditioned by Edward Minturn on board the ship called The Hornet, whereof Lawrence is master, now lying in the port of New York and bound for San Francisco, California, to say: two boilers, and two steam chimneys for ditto, eight pieces sheet iron work, three pieces pipe, one band, two hundred and four grate bars, sixteen grate bar bearers, eight boiler bearers, six man-hole plates, eight boiler doors, one bundle four bolts, two boxes; the whole to be discharged as soon as convenient, and to be received at Cunningham's wharf, in San Francisco, without other than the usual or ordinary charge for discharging per day; being marked and numbered as in the margin."

Freight $4,500.00

5 percent primage 225.00




84 Wall street

Dispatch line California packets

Contents unknown

"Goods to be delivered at the vessel's tackles when ready to be delivered. Not accountable for breakage, leakage, or rust; freight payable before delivery, if required, and are to be delivered in like order and condition at the port of San Francisco, the dangers of the seas, fire, and collision only excepted, unto Charles Minturn, or to his assigns, he or they paying freight for the said boilers, steam chimneys, and other iron work, forty-five hundred dollars, with five percent primage, and average accustomed."

"In witness whereof the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void."

"Dated in New York, the 19th day of August, 1851."


Upon the proofs, we are of opinion that the libellant had a right to sue the carrier in his own name. He is the consignee named in the bill of lading, and in the absence of evidence to control the effect of that document, the property is presumed to

Page 58 U. S. 107

be in him. In Evans v. Marlett, 1 Lord Raymond 271, it is laid down that

"If goods, by bill of lading, are consigned to A, A is the owner, and must bring the action against the master of the ship if they are lost; but if the bill be special, to be delivered to A to the use of B, B ought to bring the action."

Whether it be strictly correct to affirm that in the case first put, A shall have a right of action against the carrier, though in point of fact he be only an agent for the consignor, has been much controverted. In Griffith v. Ingledew, 6 S. & R. 429, goods were shipped by A for his own account and risk, but deliverable under the bill of lading to B or his assigns. The previous decisions were examined with great care. There was a difference of opinion on the bench, Mr. Justice Gibson dissenting, but the majority of the court held that by force of the bill of lading, the legal title was in the consignee, and he could maintain the action.

Since that decision was made, the question has been much discussed both in this country and in England. It is not easy to reconcile the decisions. We shall not attempt to do so here; the case does not require it. For if we take the rule to be that an action against the carrier cannot be brought by a consignee who has no beneficial interest in the goods, it still remains true that a presumption of such an interest in the consignee arises from a bill of lading which makes the goods deliverable to him or his assigns. This is admitted in the cases in which it has been held that the consignee had not the right of action or was not liable for the freight. Coleman v. Lambert, 5 M. & W. 502; Wright v. Snell, 5 B. & Ald. 350; Chandler v. Spraigue, 5 Met. 306.

In Grove v. Brien, 8 How. 439, this Court said: "The effect of a consignment of goods generally is to vest the property in the consignee," and though it is also there declared that this effect may be controlled by special clauses in the bill of lading or by evidence aliunde, yet the general effect of a bill of lading to raise a presumption of property in goods in him to whom it makes them deliverable is conceded.

This is in accordance with the rule given in Abbott on Shipping 415-416.

Such being the presumption arising from the bill of lading, we do not find it to be controlled by any proof in this case. It does appear that Edward Minturn and James Cunningham were part owners of The Senator, for which boat these boilers and chimneys were intended, and that they contracted with the makers of the articles and paid for them, and that Edward Minturn shipped them in New York. But all this leaves open the question whether the libellant was not the managing owner

Page 58 U. S. 108

and ship's husband of The Senator, residing in California, where that boat was employed, attending to its repairs and supplies for the joint account of himself and the other owners. Indeed, the testimony of Squire, an agent of the libellant, in the absence of all other evidence, tends to prove that such was the fact, for he speaks of himself as acting for the libellant in reference to the management of The Senator, and says that, her boilers being worn out, an order was sent out to obtain new ones to replace the old. We understand this order to have been given by the libellant for the boilers now in question.

Considering the burden of proof to have been on the respondents to displace the prima facie right of action of the consignee arising from the bill of lading, that for aught he has shown, and upon the proof, we may conclude that the consignee ordered these articles as managing owner of The Senator, and that, if so, he, as consignee and managing owner, might sustain the libel in his own name, this objection to the decree must be overruled.

The next inquiry is whether the failure to deliver the boilers and chimneys is justified.

The Hornet sailed from New York on the 23d of August, 1851, having these articles on deck. On the 5th of September the chimneys, and on the 12th of September the boilers, were thrown overboard.

Two questions arise:

1. Was the jettison necessarily made for the common safety? and, if so,

2. Was the necessity attributable to any, and what, fault on the part of the master or the vessel?

The material facts upon which the first of these questions depends are that The Hornet was a clipper ship of about sixteen hundred tons burden, built at New York in the years 1850 and 1851, of the best materials in use for first-class ships at that port. She had a cargo under deck, and the weight of these boilers and chimneys on deck was somewhat over thirty-one tons. The height of each of the boilers, above the deck at the forward end, when stowed, was about twelve feet. The steam chimneys were between five and six feet in diameter, and besides these there was a piece of steam pipe weighing 667 pounds. The ship sailed on the 23d of August, and on entering the gulf stream encountered rather heavy weather and a cross-sea. The performance of the vessel in this sea was found to be bad. On the 26th, a gale came on from the south, veering to the northwest, and lasted until the night of the 27th.

Though this gale was not of uncommon severity, it raised a heavy cross-sea. The effect of this sea was to cause the ship

Page 58 U. S. 109

to roll down to leeward so as to take in water over her rail; she rose very slowly and then rolled over to windward, straining and laboring in a manner described by the witnesses as very unusual. She would not mind her helm, but would fall off; she would settle down aft and take in water over her stern, and plunged heavily forward. At sundown on the 27th, the wind lulled and the sea became more smooth. It was found during and immediately after the gale that the ship was very severely strained, so as to open some wood-ends aft one-half to three quarters of an inch, and her waterway seam half an inch, and that other injuries of an alarming character had been received. The master then held a consultation with his officers and drew up the following protest:

"August 29, 1851, latitude 31

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