A contract, made at New York to carry cattle on deck of a
steamboat from New York to Liverpool, contained these
provisions:
"On deck at owner's risk, steamer not to be held accountable for
accident to, or mortality of, the animals, from whatever cause
arising. . . . The carrier shall not be liable for loss or damage
occasioned by causes beyond his control, by the perils of the sea,
or other waters; . . . by barratry of the master or crew; . . . by
collisions, stranding or other accidents of navigation, of
whatsoever kind, even when occasioned by the negligence, default,
or error in judgment of the pilot, master, mariners or other
servants of the shipowner."
Held that, by the terms of this contract, whether
governed by the law of this country or by the law of England, the
carrier was not exempted from responsibility for the loss of sound
cattle, forcibly thrown or driven overboard in rough weather by
order of the master from unfounded apprehension on his part, in the
absence of any pressing peril to the ship, and with no apparent or
reasonable necessity for a jettison of the sound cattle, and no
attempt to separate them from those which had already been injured
by perils of the sea.
This was a libel in admiralty in the District Court of the
United States for the Southern District of New York by William W.
Brauer and Frederick C. Brauer, residing and doing business as
partners under the name of William W. Brauer & Co. at Richmond,
in the State of Virginia, and by the Reliance Marine Insurance
Company, Limited, of Liverpool, a corporation organized under the
laws of Great Britain, against the Compania de Navigacion La
Flecha, a corporation organized under the laws of Spain, and owner
of the steamship
Hugo, to recover for the loss of cattle
shipped by the partnership October 24, 1891, on deck of the
Hugo at New York, for Liverpool, under a bill of lading,
the material parts of which are copied in the margin, the parts
there
Page 168 U. S. 105
printed in ordinary type being in print, and those in italics
being in writing, in the original. [
Footnote 1]
The libel alleged that the vessel, having 165
Page 168 U. S. 106
head of live cattle on board, sailed for the port of Liverpool
on October 24, 1891; that
"about October 31, 1891, the said vessel having encountered some
rough weather, the master and crew of said vessel became
panic-stricken, and drove overboard 126 head of cattle; the said
vessel did not incur any extraordinary or unusual stress of
weather, and the act of said master and crew in driving overboard
said cattle was wholly unnecessary, and the loss of said cattle was
due to the incompetency and lack of skill of the master and
crew;"
that the vessel afterwards arrived safely at Liverpool, and
delivered to the shippers or their agents 38 of the cattle in good
condition, one having died, and that the insurance company, having
insured the cattle, paid the partnership for the loss and took an
assignment of its rights of action against the steamer and her
owners.
The answer alleged that the receipt, transportation, and
delivery of the cattle were subject to the terms and conditions of
a contract between the shippers and the respondents, dated October
10, 1891 (which is copied in the margin [
Footnote 2]), and of the
Page 168 U. S. 107
bill of lading; admitted the sailing of the vessel with the
cattle on board, and a loss of the cattle; denied the other
allegations of the libel, and contained the following
averments:
Page 168 U. S. 108
"Further answering the said libel, respondent avers that, by the
terms and conditions of the contract and bill of lading under which
the said cattle were received for transportation and delivery, it
was provided that the carrier should not be liable for loss or
damage occasioned by causes beyond his control, by the perils of
the seas or other waters, or by other accidents of navigation, even
when occasioned by the negligence, default, or error in judgment of
the master, mariners, or other servants of the shipowner, and that
the cattle were carried on deck at the owner's risk, and under a
special provision that the steamer should not be held accountable
for accident to, or mortality of, the animals, from whatsoever
cause arising. There was a further provision that the contract
should be construed and governed by the law as administered in the
courts of Great Britain, with reference to which law the contract
was stated to be and was made."
"And the respondent avers that the loss of said cattle was due
to the perils of the sea encountered upon the said voyage, which
broke certain of the cattle houses, and set the cattle adrift, and
that, during the continuance of the perils, and by reason thereof,
certain of the cattle were washed overboard, and others were thrown
about the deck, bruised and with broken limbs, and reduced to a
dead, dying, or hopeless condition, and that, upon such being taken
to the gangways, they were washed over by the seas."
It was stipulated by counsel
"that the English judicial
Page 168 U. S. 109
decisions, as contained in the printed decisions of the law or
admiralty courts, may be referred to by either party as evidence of
the English common or maritime law as administered in the English
courts."
The conclusions of fact of the district judge were summed up in
his opinion as follows:
"During three days from October 30th to November 1, inclusive,
the vessel met heavy weather, during which there was heavy rolling
of the vessel. The cattle were in pens on deck -- a few forward
under and near the turtle-back, which were saved; the rest were in
the vicinity of Nos. 3 and 1 hatches, forward and aft of the engine
room, in pens built in the wings on the port and starboard sides of
the ship, all of which were lost. The storm was heaviest on the
afternoon and night of Saturday, the 31st, the wind and seas coming
first and heaviest from the northwest, but on Saturday hauling to
the northward, and to east-northeast, with cross seas. Some slight
damage was done to a few pens on the 30th; more were broken on
Saturday, the 31st; but these were repaired and the cattle put in
place toward nightfall. About 5 o'clock on that day, the after
gangways were opened on each side, and about ten or twelve cattle
that had become maimed and helpless were sent overboard through
those gangways. The chief loss was during that night and the
following morning, when, shortly after daylight, the captain gave
orders to open the forward gangways also, and the whole deck was
cleared of all the cattle save the thirty-nine under the
turtle-back. . . ."
"Upon the whole testimony in this pitiful case, I am not
disposed to pronounce any unfavorable judgment upon the handling of
the ship by the master. His record as a master appears to have been
good, and on any doubtful question of navigation he is entitled to
the benefit of his record. He had some, though not large,
experience in the transportation of cattle, and the experts called
by each party place so much stress upon the special circumstances
of the situation, the quality of the ship, and the necessary
determination of the master's own judgment at the time, that in the
circumstances
Page 168 U. S. 110
testified to I do not find any conclusive proof adverse to the
master's judgment as to the navigation of the ship."
"The evidence leaves not the least doubt in my mind, however,
that the sacrifice of a considerable number of live cattle that
were not maimed or substantially hurt was made on the morning of
Sunday, the 1st of November, not from any pressing necessity, but
solely from mere apprehension, and I am further persuaded that
there was no reasonable or apparent necessity for the sacrifice. It
was morning. The night was past. No one testifies to any pressing
peril to the ship. The log does not hint of it. No reason appears
why such cattle as could go about, and were actually going about,
should not have been cared for and preserved. There was plainly no
effort made to separate the sound from the maimed. Even the master
says, in answer to the question: 'Were these cattle standing up
that went overboard? Ans. They were down. Some may have been up. I
don't know.' His object plainly was to clear the deck of all the
cattle from No. 3 aft, with no attempt to discriminate or save any.
His state of mind is shown by his concluding words, 'We all
breathed happily when we saw it open' (No. 3 hatch)."
The district judge was of opinion that the stipulations of the
bill of lading, so far as they undertook to exempt the respondent
from accountability for the negligence of the master or crew,
though valid by the law of England, were invalid by our law, and
therefore decreed
"that the libelants recover damages for such of the oxen as were
of any market value, and not fatally wounded or maimed at the time
when the houses and cleats provided for them were designedly torn
up, and which oxen were cast overboard, or negligently suffered to
go overboard, through the open gangways, on the morning of November
1st and on the evening of the night previous,"
and referred the case to a commissioner to ascertain and report
the amount of such damage. 57 F. 403.
The commissioner reported that 63 of the cattle were thus
voluntarily and unnecessarily sacrificed, and assessed damages for
that number of cattle. The district court confirmed his report, and
entered a decree accordingly for the libelants. 61 F. 860.
Page 168 U. S. 111
Both parties appealed to the circuit court of appeals, which
adopted the conclusions of fact of the district court and affirmed
the decree upon the ground that the case was not within the
exceptions in the bill of lading. 35 U.S.App. 44.
The respondent applied for and obtained a writ of certiorari
from court.
Page 168 U. S. 117
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The contract sued on was made in October, 1891, more than a year
before the passage of the Harter Act, and the case is unaffected by
its provisions. Act of Feb. 13, 1893, c. 105, 27 Stat. 445.
By the law of this country before that act, as declared upon
much consideration by this Court, common carriers by land or sea
could not, by any form of contract with the owner of property
carried, exempt themselves from responsibility for loss or damage
arising from negligence of their own servants, and any stipulation
for such exemption was contrary to public policy, and void.
Railroad Co. v.
Lockwood, 17 Wall. 357;
Liverpool Steam Co. v.
Phenix Ins. Co., 129 U. S. 397.
By the modern decisions in England, on the other hand, made
since it has become to us a foreign country, common carriers,
except so far as controlled by the provisions of the Railway and
Canal Traffic Act of 1854, were permitted to exempt themselves by
express contract from responsibility for losses occasioned by
negligence of their servants.
Peck v. North Staffordshire
Railway, 10 H.L.Cas. 473, 493, 494;
Page 168 U. S. 118
Steel v. State Line Steamship Co., 3 App.Cas. 72;
Manchester &c. Railway v. Brown, 8 App.Cas. 703;
In re Missouri Steamship Co., 42 Ch.Div. 321;
The
Cressington (1891), Prob. 152.
In the case at bar, the decision of the district judge proceeded
upon the ground that, any stipulation directly exempting the
carrier from all liability for negligence of his servants being
void by our law, as against public policy, the equivalent
stipulation that the contract should be governed by the law of
England was equally void, and could not be enforced in the courts
of the United States. That decision is in accordance with the
previous decision of the same judge in
The Brantford City,
29 F. 373, and with several subsequent decisions of his.
The
Energia, 56 F. 124;
The Guildhall, 58 F. 796;
Worsted Mills v. Knott, 76 F. 582. The like view has been
taken by Judge Nelson in the District of Massachusetts in
The
Iowa, 50 F. 561; by Judge Benedict in the Eastern District of
New York in
Lewisohn v . National Steamship Co., 56 F.
602, and by Judge Butler in the Eastern District of Pennsylvania in
The Glenmavis, 69 F. 472.
See also Oscanyan v. Arms
Co., 103 U. S. 261;
Hamlyn v. Talisker Distillery (1894), App.Cas. 202, 209,
214;
Rousillon v. Rousillon, 14 Ch.Div. 351, 369.
But it is unnecessary to express a decisive opinion upon the
validity of the contract, because, assuming it to be valid and to
govern the case, this Court concurs with the circuit court of
appeals in the opinion that the respondent was liable for the loss
in question.
Exceptions in a bill of lading or charter party, inserted by the
shipowner for his own benefit, are unquestionably to be construed
most strongly against him.
The Caledonia, 157 U.
S. 124,
157 U. S. 137;
The Majestic, 166 U. S. 375,
166 U. S. 386;
Norman v. Binnington, 25 Q.B.D. 475, 477;
Baerselman
v. Bailey (1895), 2 Q.B. 301, 305.
By the laws of both countries, the ordinary contract of a common
carrier by sea involves an obligation on his part to use due care
and skill in navigating the vessel and in carrying the goods, and
an exception, in the bill of lading, of perils
Page 168 U. S. 119
of the sea or other specified perils does not excuse him from
that obligation nor exempt him from liability for loss or damage
from one of those perils, to which the negligence of himself or his
servants has contributed.
This rule of construction was fully established in this Court
before it had occasion to decide the question whether it was within
the power of the carrier by express stipulation to exempt himself
from all responsibility for the negligence of himself or his
servants.
In the leading case of
New Jersey Steam Navigation
Co. v. Merchants' Bank, 6 How. 344, a crate of
William F. Harnden, in which was money belonging to the bank, was
shipped upon a steamboat of the navigation company under an
agreement stipulating that
"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."
This Court held that the navigation company was not thereby
exonerated from loss by fire arising from the negligence of that
company or its servants, and the reasons for the decision were
stated by Mr. Justice Nelson as follows:
"The special agreement in this case, under which the goods were
shipped, provided that they should be conveyed at the risk of
Harnden, and that the respondents were not to be accountable to him
or to his employers in any event for loss or damage. The language
is general and broad, and might very well comprehend every
description of risks incident to the shipment. But we think it
would be going further than the intent of the parties, upon any
fair and reasonable construction of the agreement, were we to
regard it as stipulating for willful misconduct, gross negligence,
or want of ordinary care, either in the seaworthiness of the
vessel, her proper equipments and furniture, or in her management
by the master and hands. . . . If it is competent at all for the
carrier to
Page 168 U. S. 120
stipulate for the gross negligence of himself and his servants
or agents in the transportation of the goods, it should be required
to be done at least in terms that would leave no doubt as to the
meaning of the parties."
6 How.
47 U. S.
383-384.
See also The Hornet, 17
How. 100;
Transportation Co. v.
Downer, 11 Wall. 129;
The
Syracuse, 12 Wall. 167;
Liverpool Steam Co. v.
Phenix Ins. Co., 129 U. S. 397,
129 U. S.
438.
In England, likewise, it has long been recognized as a settled
rule that under a contract to carry goods containing an exception
such as of "breakage or leakage," or of "barratry of the master or
mariners," or of "perils of the sea," there still rests upon the
carrier not merely the duty to carry the goods if not prevented by
the excepted perils, but also the obligation that he and his
servants shall use due care and skill, and shall not be negligent
in carrying the goods.
Phillips v. Clark, 2 C.B. (N.S.)
156;
The Helene, L.R. 1 P.C. 231;
Lloyd v. General
Iron Screw Coliery Co., 3 H. & C. 284;
Grill v.
Same, L.R. 1 C.P. 600 and L.R. 3 C.P. 476;
Czech v.
General Steam Navigation Co., L.R. 3 C.P. 14;
Steel v.
State Line Steamship Co., 3 App.Cas. 72, 87-88;
Manchester
&c. Railway v. Brown, 8 App.Cas. 703, 709-710;
The
Xantho, 12 App.Cas. 503, 510, 515.
The English case most resembling in its circumstances the case
at bar is
Leuw v. Dudgeon, briefly reported in L.R. 3 C.P.
17, note, and more fully in 17 Law Times (N.S.) 145, by which it
appears to have been as follows: cattle were shipped, some of them
on deck, under a bill of lading containing these clauses:
"Ship free in case of mortality and from all damage arising from
the act of God, the queen's enemies, fire, accidents from machinery
or boilers, steam, or other dangers of the seas, rivers,
roadsteads, or steam navigation whatsoever. . . . The ship not
liable for accident, injury, mortality, or jettison, whether
shipped on deck or in the hold."
On the vessel's putting out to sea, she experienced fine
weather, and the sea was smooth, but there was a ground swell, and
after she had been out some time, she suddenly rolled over on her
beam ends; the cattle pens gave way, and the cattle fell over to
the starboard side, and, in order to save the vessel, it was
Page 168 U. S. 121
necessary to throw those on deck overboard. It was held that if
the accident was owing to the vessel's putting to sea with
insufficient ballast, the owners were liable notwithstanding the
exemptions in the bill of lading, which included "jettison" as well
as "accidents from dangers of the seas."
In that case, indeed (as in the case in this Court of
The
Caledonia, above cited), the fault of the shipowner consisted
in sending the ship to sea in an unseaworthy condition. But Mr,
Justice Willes, who delivered the leading opinion, laid down the
general rule that
"the exceptions were intended to save the shipowner from
liability for the effects of accident, and not to absolve him from
the duty of exercising reasonable diligence."
17 Law Times (N.S.) 146. And he treated the case as coming
within the principle of that rule as affirmed in the cases, above
cited, of
Phillips v. Clark and
Grill v. General Iron
Screw Colliery Co., in the one of which the clause, "not to be
accountable for leakage or breakage," and in the other the clause,
"accidents or dangers of the seas, rivers, or navigation, of
whatever nature or kind soever, excepted," was held not to cover a
loss, otherwise within the exception, caused by the negligence of
the master or crew. So, in
Steel v. State Line Steamship
Co., above cited, Lord Blackburn said in the House of Lords
that in construing such exceptions in a bill of lading, exactly the
same considerations would arise as to the duty of the shipowner to
furnish a ship really fit for the purpose as had been applied, in
the series of cases of which
Phillips v. Clark was the
leading one, to the duty of himself and his servants to use due
care and skill in carrying the goods.
In
Notara v. Henderson, L.R. 7 Q.B. 225, 236, the Court
of Exchequer Chamber, in a considered judgment delivered by Mr.
Justice Willes, held that the words
"loss or damage arising from collision or other accidents of
navigation occasioned by default of the master or crew or any other
accidents of the seas, rivers, and steam navigation of whatever
nature or kind excepted"
did not exempt the owner from negligence in omitting to take out
and dry the cargo at a port of distress, because the authorities
(specially mentioning
Grill
Page 168 U. S. 122
v. General Iron Screw Colliery Co., above cited),
"and the reasoning upon which they are founded, are conclusive
to show that the exemption is from liability for loss which could
not have been avoided by reasonable care, skill, and diligence, and
that it is inapplicable to the case of a loss arising from the want
of such care, and the sacrifice of the cargo by reason
thereof."
In
Gill v. Manchester &c. Railway, L.R. 8 Q.B. 186,
the Court of Queen's Bench, applying the same rule of construction,
held that a provision in a contract for the carriage of cattle by
railway by which the railway company was not to be responsible for
any loss or injury to the cattle "in the receiving, forwarding, or
delivering, if such damage be occasioned by the kicking, plunging,
or restiveness of the animal" did not relieve the company from
liability for negligence of its servants in delivering a restive
cow.
In
Lloyd v. General Iron Screw Colliery Co., above
cited, Lord Bramwell said that the words, "accident or damage from
machinery, boilers, steam" could not apply to an explosion caused
by the willful act of the engineer.
The passages quoted by the respondent from
Burton v.
English, 12 Q.B.D. 218, 220, 223, as showing that the words
"on deck at owner's risk" exempt the carrier from liability for
unlawful jettison or for negligence of the master and crew, were
obiter dicta, the only point decided being that those
words did not exclude the right of the owner of the goods to
recover in general average for a lawful jettison.
See Ralli v.
Troop, 157 U. S. 386,
157 U. S. 396.
The two other cases cited by the respondent were cases in which
railway companies were held not to be responsible for the
negligence of their servants under contracts essentially different
from that now in question. One was an action by a passenger
traveling as a drover accompanying cattle, under a free pass, one
of the terms of which was that he should travel at his own risk.
McCauley v. Furness Railway, L.R. 8 Q.B. 57. The other was
an action by a person who, knowing that the defendant had two rates
of carriage -- a higher rate when it took the ordinary liability of
a carrier and a lower rate when it was
Page 168 U. S. 123
relieved from all liability except that arising from the willful
misconduct of its servants -- delivered goods to be carried at the
lower rate under a contract in which the only words defining the
carrier's liability were "owner's risk."
Lewis v. Great Western
Railway, 3 Q.B.D. 195.
Upon consideration of the conflicting testimony, with the aid of
the careful arguments of counsel, no ground is shown for reversing
or modifying the conclusions of fact reached by both courts below.
Their concurrent decisions upon a question of fact are to be
followed unless clearly shown to be erroneous.
Morewood
v. Enequist, 23 How. 491;
The Richmond,
103 U. S. 540, and
cases cited;
The Conqueror, 166 U.
S. 110,
166 U. S. 136.
By the facts so found, it appears that the cattle for the loss
of which a recovery has been permitted were sound and uninjured
animals, forcibly thrown or driven overboard in rough weather by
order of the master from unfounded apprehension on his part, in the
absence of any pressing peril to the ship, and with no apparent or
reasonable necessity for a jettison of the sound cattle, and no
attempt to separate them from those which had already been injured
by perils of the sea.
The clauses of the bill of lading (other than the reference to
British law) on which the respondent relies are those in the first
paragraph, "on deck at owner's risk; steamer not to be held
accountable for accident to or mortality of the animals, from
whatever cause arising," and those in the third paragraph, by
which
"it is also mutually agreed that the carrier shall not be liable
for loss or damage occasioned by causes beyond his control, by the
perils of the sea, or other waters; . . . by barratry of the master
or crew,"
or
"by collisions, stranding, or other accidents of navigation, of
whatsoever kind, even when occasioned by the negligence, default,
or error in judgment of the pilot, master, mariners, or other
servants of the shipowner."
The bill of lading itself shows that all the cattle to be
carried under this contract were to be on deck. The words "on deck
at owner's risk" cannot have been intended by the
Page 168 U. S. 124
parties to cover risks from all causes whatsoever, including
negligent or willful acts of the master and crew. To give so broad
an interpretation to words of exception inserted by the carrier and
for his benefit would be contrary to settled rules of construction
and would render nugatory many of the subsequent stipulations of
the bill of lading.
The wrongful jettison of the sound cattle by the act of the
carrier's servants cannot reasonably, or consistently with the line
of English authorities already cited or with our own decisions, be
considered either as an "accident to or mortality of the animals"
or as a "loss or damage occasioned by causes beyond his control, by
the perils of the sea, or other waters," or yet as a loss or damage
"by collisions, stranding, or other accidents of navigation." There
having been no collision, stranding, or other accident of
navigation, there was nothing to which the only stipulation in the
bill of lading against the consequences of negligence, default, or
error in judgment of the master and crew could apply.
There was no barratry, because there was neither intentional
fraud nor breach of trust, nor willful violation of law, one of
which, at least, is necessary to constitute barratry.
Patapsco Ins. Co. v.
Coulter, 3 Pet. 222;
Lawton v. Sun Ins.
Co., 2 Cush. 500;
Grill v. General Iron Screw Colliery
Co., above cited.
The facts of the case therefore do not bring it within any of
the exceptions of the bill of lading, assuming them to be
valid.
Decree affirmed.
[
Footnote 1]
"Received in apparent good order and condition, by the Spanish
steamer
Hugo, from Wm. W. Brauer & Co., to be
transported by the good steamship
Hugo, now lying in the
port of New York, and bound for Liverpool, one hundred and
sixty-five live cattle on deck. On deck at owner's risk, steamer
not to be held accountable for accident to, or mortality of, the
animals, from whatever cause arising; being marked and numbered as
per margin (weight, quality, contents, and value unknown), and to
be delivered in like good order and condition at the port of
Liverpool (or so near thereto as she may safely get) unto shippers'
order, or to his or their assigns. Freight prepaid in New York.
General average payable according to York-Antwerp rules."
"It is mutually agreed that the ship shall have liberty to sail
without pilots; to tow and assist vessels in distress; to deviate
for the purpose of saving life or property; that the carrier shall
have liberty to convey goods in lighters to and from the ship at
the risk of the owners of the goods; and, in case the ship shall
put into a port of refuge, or be prevented from any cause from
proceeding in the ordinary course of her voyage, to transship the
goods to their destination by any other steamship."
"It is also mutually agreed that the carrier shall not be liable
for loss or damage occasioned by causes beyond his control; by the
perils of the sea, or other waters; by fire from any cause, and
wheresoever occurring; by barratry of the master or crew; by
enemies, pirates, or robbers; by arrest and restraint of princes,
rulers, or people; riots, strikes, or stoppage of labor; by
explosion, bursting of boilers, breakage of shaft, or any latent
defect in hull or machinery or appurtenances; by collisions,
stranding, or other accidents of navigation, of whatsoever kind
(even when occasioned by the negligence, default, or error in
judgment of the pilot, master, mariners, or other servants of the
shipowner, not resulting, however, in any case, from want of due
diligence by the owners of the ship, or any of them, or by the
ship's husband or manager); nor by decay, heating, putrefaction,
rust, sweat, change of character, drainage, leakage, breakage, or
any loss or damage arising from the nature of the goods or the
insufficiency of packages; nor for land damage; nor for the
obliteration, errors, insufficiency, or absence of marks or
numbers, address or description; nor for risk of craft, hulk, or
transshipment; nor for any loss or damage caused by the
prolongation of the voyage."
"
* * * *"
"14. Also, that this contract shall be governed by British law,
with reference to which law this contract is made."
"And, finally, in accepting this bill of lading, the shipper,
owner, and consignee of the goods and the holder of the bill of
lading agree to be bound by all of its stipulations, exceptions,
and conditions, whether written or printed, as fully as if they
were all signed by such shipper, owner, consignee or holder."
[
Footnote 2]
"White Star Line. Cattle Contract -- Memorandum of Agreement
Concluded at New York the Tenth Day of October, 1891, between H.
Maitland Kersey, Agent of the Spanish Steamer
Hugo, and
Messrs. William Brauer & Co., of Richmond, Virginia."
"The agent agrees to let to the said shipper suitable space, as
undernoted, for the transportation of live cattle; this is to
say:"
"On the steamer
Hugo, intended to sail from New York
about Oct. 24th, 1891, for Liverpool, England."
"For about one hundred sixty live cattle on the upper deck."
"No other cattle to be carried this voyage."
"The shipper agrees to ship all the cattle, as above mentioned
at the rate of fifty shillings, British sterling, for each animal
shipped on open decks."
"The shipper especially agrees to prepay freight on the
above-mentioned shipments on date of sailing, in current funds at
the rate for which prime bankers are selling sight bills on London,
on the number of cattle shipped at New York, vessel lost or not
lost, and irrespective of the number landed at the port of
destination, and the shipper assumes all risk of mortality or
accident, however caused, throughout the voyage."
"Stalls to be put up at ship's expense, and to be constructed to
the satisfaction of the inspector or underwriters interested, and
to the satisfaction of shipper, who will assume all responsibility
for same, and for the various appliances for ventilation after
shipment of cattle."
"The steamer undertakes to supply sufficient good condensed or
fresh water for the use of the animals during the voyage; also
water casks and hose."
"Steamer to provide space, free of charge, for corn and strictly
compressed fodder for animals, but freight, if demanded, shall be
payable on any unusual excess of fodder landed at port of
destination. If fodder be supplied that is not strictly compressed,
a proportionate quantity may be carried on deck."
"Steamer to supply suitable gangways and elevators for loading
cattle."
"Steamer to give free passage over and back and to supply
bedding to drovers in charge of animals (not exceeding one man to
every thirty cattle), and, if not returning direct to port of
sailing, to provide free intermediate passage back for foreman, and
free steerage passage back for other attendants, by first available
steamer of this line."
"Steamer to give six running days' notice of her intended
departure, and twelve hours' notice of the hour the cattle must be
delivered to her, but such notices to be given or received are
subject to become inoperative in case of strike or stoppage of
labor."
"Steamer guaranties to sail as soon after shipment of all the
animals as tide and weather permit, or pay expenses of keep of
animals at the rate of 50c. per head per day in full."
"Steamer has privilege of exceeding her net register tonnage in
grain, upon paying to shippers the extra premium charged by the
underwriters with whom the animals are insured."
"Shippers to deliver the cattle to the vessel between sunrise
and sunset at the dock or in the stream, at their option."
"Shippers guaranty to deliver animals by expiry of notice,
provided vessel is ready for them, or to pay for detention of
steamer at the rate of �50 per day."
"In case of nonarrival of vessel in time to sail from New York
on or before November 4, 1891, shipper has option of
cancellation."
"The line form of livestock bill of lading to be used for cattle
shipped under this contract, and its conditions to govern any
questions not provided herein, subject to U.S. government
inspection."
"Any dispute arising under this contract to be settled by
arbitration in the usual way."
"Dated New York, October 10th, 1891."
"H. Maitland Kersey"
Wm. W. Brauer & Co.
