1. A preliminary freight reservation agreement for carriage of
goods "on or under deck, ship's option," and subject "to terms of
bills of lading in use by steamer's agents," gives the ship an
option as to place of stowage, and, in the absence of a general
port custom to the contrary, the issuance thereafter of a clean
bill of lading amounts to a positive representation by the ship
that the option has been exercised and that the goods will go under
deck. P.
263 U. S.
123.
2. Where rosin shipped under a clean bill of lading was stowed
on deck, and was jettisoned during the voyage to relieve the ship
in a storm,
held that the ship was liable as for a
deviation, could not escape by reason of relieving clauses in the
bill, and must pay damages measured by the value of the goods at
destination. P.
263 U. S.
124.
280 F. 553 affirmed.
Certiorari to a decree of the circuit court of appeals which
affirmed a decree of the district court, in admiralty awarding
damages against a ship for loss of cargo.
Page 263 U. S. 122
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The General Commercial Company, Limited, doing business as
commission merchant and exporting concern at
Page 263 U. S. 123
New York, in May, 1918, sold 800 barrels of rosin c.i.f. to the
respondent, a Brazilian corporation. and procured a written freight
reservation or agreement from the agents of the schooner
St.
Johns N.F. to carry the goods to Rio de Janeiro, "on or under
deck, ship's option," and subject "to terms of bills of lading in
use by steamer's agents."
The rosin was loaded on board June 11th and clean receipts,
without indorsement concerning stowage, were given therefor. A day
or two later, upon prepayment of freight, the ship issued a clean
bill of lading in the usual form. It contained no reference to the
prior freight agreement. The goods were placed on deck, but neither
the shipper nor the consignee knew this until after the loss
occurred. There was no general custom at the port so to stow goods
of this kind for such a voyage. The vessel was a general ship
carrying many kinds of merchandise, and no charter party question
is involved. She sailed from New York June 19th. Before reaching
Rio de Janeiro, she encountered a storm, and, for sufficient cause,
the master jettisoned the rosin in order to relieve her. The loss
resulted directly from the on-deck stowage; the under deck cargo
was safely delivered.
Respondent libeled the schooner and demanded the value of the
goods at destination. It claims that, by issuing the clean bill of
lading, the vessel in effect notified the shipper that she had
exercised the option specified by the freight agreement, and would
stow underdeck; also that the ship broke her contract as by
deviation, and thereby lost the benefit of limitation or relieving
clauses in the bill.
The owners maintain that, as the freight agreement gave an
option as to place of stowage, it was unnecessary for the bill of
lading to specify the action taken in respect thereto, and that
silence did not amount to a promise to carry under deck. Moreover,
that consent to deck stowage sufficiently appeared by the bill of
lading, read
Page 263 U. S. 124
with the freight agreement, and therefore there was no departure
and no ground for assessing damages.
The court below sustained the position of the respondent and
decreed accordingly. 280 F. 553.
We find no conflict between the written original freight
contract and the bill of lading. The former referred to a bill
thereafter to be issued, and made the place of stowage optional
with the ship. When issued under such circumstances, the bill
amounted to a declaration that the option had been exercised, and
the goods would go under deck.
We are not dealing with a case arising under a general port
custom permitting above-deck stowage notwithstanding a clean bill,
with notice of which all shippers are charged. When there is no
such custom and no express contract in a form available as
evidence, a clean bill of lading imports under deck stowage.
The Delaware,
14 Wall. 579,
81 U. S. 602,
81 U. S.
604-605. Upon this implication respondent had the right
to rely. To say that the shipper assented to stowage on deck is not
correct. It gave the vessel an option, and the clean bill of lading
amounted to a positive representation by her that this had been
exercised, and that the goods would go under deck.
By stowing the goods on deck, the vessel broke her contract,
exposed them to greater risk than had been agreed, and thereby
directly caused the loss. She accordingly became liable as for a
deviation, cannot escape by reason of the relieving clauses
inserted in the bill of lading for her benefit,
* and must account
for the value at
Page 263 U. S. 125
destination. Generally, the measure of damages for loss of goods
by a carrier when liable therefor is their value at the destination
to which it undertook to carry them.
Lawrence
v. Minturn, 17 How. 100,
58 U. S. 111;
Mobile & Montgomery Ry. Co. v. Jurey, 111 U.
S. 584,
111 U. S. 596;
New York, etc., R. Co. v. Estill, 147 U.
S. 591,
147 U. S. 616;
Chicago, etc., Ry. Co. v. McCaull-Dinsmore Co.,
253 U. S. 97,
253 U. S. 100;
Royal Exchange Shipping Co. v. Dixon, 12 App.Cas. (1887)
11;
The Sarnia, 278 F. 459; 3 Hutchinson on Carriers, §
1360; Carver on Carriage of Goods by Sea (6th ed.) § 287.
The decree below is affirmed.
* The bill of lading provides:
"The carrier shall not be liable for loss or damage occasioned
by, due to, or arising from causes causes beyond the carrier's
control by the act of God,
vis major, by collision,
stranding, jettison or wreck, perils of the sea or other waters, by
fire from any cause or wheresoever occurring."
"In computing any liability, for negligence otherwise, by the
shipowner as carrier or otherwise, regarding any property hereby
receipted for, no value shall be placed on the said property higher
than the invoice cost not exceeding $100 per package (or such other
value as may be expressly stated herein), nor shall the shipowner
be held liable for any profits or consequential or special damages
and the shipowner shall have the option of replacing any lost or
damaged goods."