1. An inexcusable deviation from her permitted course renders a
vessel liable as an insurer for any damage suffered by the cargo P.
725.
2. A steamship, bound from Messina, Sicily, to New York, put
into the Azores for repairs, and thence cleared for New York with a
supply of coal known by her owners and officers to be grossly
inadequate for the trip, and, after sailing for some days in that
direction, until the inadequacy became manifest, changed her course
to North Sydney, Nova Scotia, where she recoaled before proceeding
to her destination.
Held that there was an inexcusable
deviation, even if she had a right to go to North Sydney from the
Azores and so intended when leaving there, since, in that event,
the preliminary sailing towards New York was unjustifiable,
whereas, if the duty
Page 272 U. S. 719
was to sail direct to New York, the change of course to North
Sydney was due to negligence in not supplying fuel. P.
272 U. S.
726.
3. An emergency sufficient to excuse a departure cannot arise
out of circumstances deliberately planned, nor from gross
negligence. P.
272 U. S.
727.
300 F. 5 affirmed.
Certiorari (266 U.S. 297) to decrees for damages to cargo,
entered by the circuit court of appeals, reversing the district
court, in proceedings
in rem against a vessel.
Page 272 U. S. 724
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Respondents instituted proceedings
in rem against the
Willdomino, a British vessel, to recover the value of five
hundred and three (168 and 335) casks of citrate of lime owned by
and consigned to them, which she accepted June 10, 1920, at
Messina, Sicily, for delivery at New York, subject to issued bills
of lading. After leaving Messina, the vessel put in at Gibraltar,
Lisbon, Ponta Delgada (The Azores), North Sydney (Nova Scotia), and
Halifax. While passing between the last-named ports, through
negligent navigation, she struck a reef or submerged object; water
filled her forward compartment, and respondents' goods were so
damaged that they refused acceptance at destination. The causes
were heard upon the same record and present identical questions. In
the district court, petitioner prevailed, but the circuit court of
appeals thought otherwise, and entered judgments for the damages
sustained. 300 F. 5.
The petition for certiorari alleges that the causes involve
three questions:
(1) When in normal condition, citrate of lime contains 64
percentum of citric acid; the cargo offered for delivery at New
York contained 60 percentum of citric acid. Was it in sound
condition?
(2) Having regard to the bills of lading, did the
Willdomino deviate when she went to North Sydney?
(3) Must there be causal connection between the lack of due
diligence to make a vessel seaworthy and the accident from which
damage results in order to deprive the
Page 272 U. S. 725
vessel of the exemptions granted by ยง 3 of the Harter Act?
*
We confine our consideration to the points specified by the
petition, and agree with the conclusions of the circuit court of
appeals concerning the essential facts, although they are radically
different from those of the trial court. It is unnecessary now to
discuss the evidence -- that was adequately done below.
The first of the above-stated questions has not been pressed
here, and is either abandoned or inconsequential.
The circuit court of appeals, we think, rightly held that the
Willdomino made an inexcusable deviation from the
permitted course when she went to North Sydney. Consequently she
became liable as an insurer for any damage suffered by the cargo.
St. Johns Corp. v. Companhia Geral, etc., 263 U.
S. 119,
263 U. S. 124;
The Citta di Messina, 169 F. 472, 474, 475;
The
Sarnia, 278 F. 459.
Except as to inserted name of the consignee and number of casks,
the printed bills of lading were identical. They acknowledge
receipt
". . . casks citrate of lime . . . for shipment, in apparent
good order and condition, from Ferd. Baller & Co., to be
transported by the good
Page 272 U. S. 726
steamship
Willdomino to New York, with liberty to call
at intermediate ports or any port or ports in or out of the
customary route in any order, to receive and discharge coal, cargo,
passengers, and for any other purposes."
And they provide: "The ship has liberty of filling up and/or
bunkering at any port or ports in or out of the way." "Filling up
only in ports on the westwards of New York" is written at the
bottom of each bill, and all agree that
of therein really
means
to.
The
Willdomino left Messina with 569 tons of coal, not
sufficient under any circumstances to carry her to New York. At
Gibraltar, a customary coaling port, she took on 400 tons, and left
there for Lisbon with 756 tons in her bunkers. From Lisbon she
cleared for New York -- 2,905 miles away -- with but 651 tons, an
inadequate amount. When five days out from Lisbon, an accident
befell the high-pressure turbine, and she put into Ponta Delgada
for repairs. Finding that port not properly equipped therefor, the
master decided to proceed on the low-pressure turbine alone. She
took on 250 tons of coal and cleared for New York -- 2,290 miles --
with 629 tons on board. This was grossly inadequate for that
distance, as her officers knew. After proceeding five or six days
toward New York, it became manifest that there was not enough coal
to make that port, and thereupon she radically changed her course
and proceeded to North Sydney, where she arrived with 62 tons.
It is clear enough that, for some reason not quite definitely
disclosed, the officers of the vessel, under direction of the
owners, while realizing that there was not enough coal on board for
such voyage, wished to create the impression that she left Ponta
Delgada bound directly
Page 272 U. S. 727
for New York, when in truth they intended to take her to North
Sydney under pretense of an emergency.
In such circumstances, by proceeding for five or six days in the
direction of New York, the vessel deviated from any permissible
course to North Sydney, even if it be true, as her counsel now
maintain, that she had the right to go and intended to proceed to
the latter port from Ponta Delgada.
If, on the other hand, the vessel started from Ponta Delgada
with the intention of going to New York, the only emergency claimed
to justify departure from the ordinary course and procedure to
North Sydney arose from willful failure to take on sufficient
coal.
An emergency sufficient to excuse a departure cannot arise out
of circumstances deliberately planned, nor from gross
negligence.
Whether the intention was to proceed directly from Ponta Delgada
to New York, as counsel for the petitioner are said to have
maintained below, or to North Sydney, as they now insist, there was
inexcusable departure.
"In the law maritime, a deviation is defined as a 'voluntary
departure without necessity, or any reasonable cause, from the
regular and usual course of the ship insured.'"
Constable v. National Steamship Co., 154 U. S.
51,
154 U. S.
66.
"The voyage must be prosecuted without unnecessary delay or
deviation. The shipowner's undertaking is that he will be diligent
in carrying the goods on the agreed voyage, and will do so
directly, without any unnecessary deviation."
Carver on Carriage of Goods by Sea (6th ed.) 393.
Nothing in the present bills of lading suggests that the vessel
might wander about the sea, heading first for one port and then,
without adequate reason, for another. If the
Willdomino
had the privilege of going from Ponta Delgada to North Sydney and
intended so to do, it was
Page 272 U. S. 728
her duty to take the ordinary course. This she did not do.
What has been said of the second question renders it unnecessary
to discuss the third.
The decrees of the circuit court of appeals are
Affirmed.
*
"Sec. 3. That if the owner of any vessel transporting
merchandise or property to or from any port in the United States of
America shall exercise due diligence to make the said vessel in all
respects seaworthy and properly manned, equipped, and supplied,
neither the vessel, her owner or owners, agent, or charterers,
shall become or be held responsible for damage or loss resulting
from faults or errors in navigation or in the management of said
vessel nor shall the vessel, her owner or owners, charterers,
agent, or master be held liable for losses arising from dangers of
the sea or other navigable waters, acts of God, or public enemies,
or the inherent defect, quality, or vice of the thing carried, or
from insufficiency of package, or seizure under legal process, or
for loss resulting from any act or omission of the shipper or owner
of the goods, his agent or representative, or from saving or
attempting to save life or property at sea, or from any deviation
in rendering such service."
Act of Feb. 13, 1893 (the Harter Act) c. 105, 27 Stat. 445.