1. Rev.Stats., § 4282, exempting the vessel owner from liability
to cargo for loss or damage by fire, "unless such fire is caused by
the . . . neglect of such owner," means personal negligence of the
owner, or, in case of a corporate owner, negligence of its managing
officers or agents. P.
287 U. S.
424.
2. The fire resulted inevitably from conditions in a coal
bunker, which were chargeable to the negligence of the vessel's
chief engineer in storing new coal before sailing, and which
rendered her unseaworthy
Page 287 U. S. 421
from the time she left port. Assuming the unseaworthiness could
have been discovered by due diligence,
held:
(1) The breach of the owner's implied warranty of seaworthiness
did not constitute "neglect" in the sense of the fire statute. P.
287 U. S.
425.
(2) The provisions of the Harter Act, § 3, respecting
seaworthiness, have to do with exemption from liabilities other
than for lose by fire, and that act did not modify or repeal the
fire statute. P.
287 U. S.
426.
3. Bills of lading incorporating the fire statute and containing
clauses relieving the vessel owner from liability for losses due to
certain cause, if the owner had "exercised due diligence to make
the steamer seaworthy"
held not to have added anything to
the personal obligation of the vessel owner so far as loss from
fire is concerned, and not to have waived the statutory immunity in
that regard. P.
287 U. S.
428.
4. Rule that vessel owner's liability on personal contracts is
not limited to value of his interest in vessel and freight
held inapplicable where owner's claim is complete immunity
from liability, and where alleged personal contracts consisted
merely of bills of lading, executed by railroads and by other
steamship companies. P.
287 U. S.
429.
54 F.2d 913 affirmed.
Certiorari, 286 U.S. 535, to review the affirmance of a decree
dismissing a libel in admiralty. The District Court's opinion is
reported, 45 F.2d 231.
Page 287 U. S. 424
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Earle and Stoddart, Incorporated, and other owners of cargo
shipped on the steamship
Galileo sued her owner and
operator, Ellerman's Wilson Line, Limited, in the federal court for
southern New York for breach of contract to deliver at destination.
The defendant pleaded in bar the fire statute, which provides:
"No owner of any vessel shall be liable to answer for or make
good to any person any loss or damage which may happen to any
merchandise whatsoever which shall be shipped, taken in, or put on
board any such vessel by reason or by means of any fire happening
to or on board the vessel unless such fire is caused by the design
or neglect of such owner."
R.S. § 4282, Act of March 3, 1851, c. 43, § 1, 9 Stat. 635.
The District Court made these findings: shortly after the
departure from New York, coal in a temporary bunker was found to be
afire through spontaneous combustion. Following appropriate efforts
to extinguish the fire, the vessel sank, and practically the entire
cargo was lost. The immediate cause of the loss was the fire, to
which no design or neglect of the owner contributed. The immediate
cause of the fire was the condition of the coal at the time the
voyage was commenced, which rendered the vessel unseaworthy. The
sole cause of the unseaworthiness was the gross negligence of the
ship's chief engineer in putting a new supply of coal on top of old
coal then known to be heated. The Circuit Court of Appeals
concurred in these findings and affirmed the decree which dismissed
the libel. 54 F.2d 913. This Court granted certiorari on the ground
of conflict of decisions. 286 U.S. 535.
The cargo owners concede that ordinarily the phrase in the fire
statute "neglect of such owner" means personal negligence of the
owner or, in case of a corporate
Page 287 U. S. 425
owner, negligence of its managing officers or agents, and that
the negligence of the master, chief engineer, or other ship's
officers does not deprive the owner of the statutory immunity.
Walker v. Transportation
Co., 3 Wall. 150;
Craig v. Continental
Insurance Co., 141 U. S. 638,
141 U. S. 646.
The contention is that the statute does not confer immunity where
the fire resulted from unseaworthiness existing at the commencement
of the voyage and discoverable by the exercise of ordinary care, or
at least that the statute does not afford immunity where the owners
warrant by their bills of lading, as it is asserted they have done
here, that they will "exercise due diligence to make the steamer
seaworthy."
First. The fire statute, in terms, relieves the owners
from liability "unless such fire is caused by the design or neglect
of such owner." The statute makes no other exception from the
complete immunity granted. The cargo owners do not make the broad
contention that the statute affords no protection to the vessel
owner if the fire was caused by unseaworthiness existing at the
commencement of the voyage. [
Footnote 1] Their contention is that it
Page 287 U. S. 426
does not relieve the owner if the unseaworthiness was
discoverable by due diligence. The argument is that the duty of the
owner to make the ship seaworthy before starting on her voyage is
nondelegable, and if the unseaworthiness could have been discovered
by due diligence, there was necessarily neglect of the vessel
owner.
In support of this contention, the cargo owners place some
reliance upon
The Edwin I. Morrison, 153 U.
S. 199;
The Caledonia, 157 U.
S. 124, and
The Carib Prince, 170 U.
S. 655. Those cases enunciate the rule that in every
contract of affreightment there is, unless otherwise expressly
stipulated, an implied warranty of seaworthiness at the
commencement of the voyage. The warranty is absolute that the ship
is in fact seaworthy at that time, and the liability does not
depend upon the knowledge or ignorance, the care or negligence, of
the shipowner or charterer. Obviously, those cases lend no support
to the contention that breach of the implied warranty of
seaworthiness constitutes "neglect" of the vessel owner under the
fire statute. [
Footnote 2]
The cargo owners rely chiefly upon
International Navigation
Co. v. Farr & Bailey Mfg. Co., 181 U.
S. 218, and
The Wildcroft, 201 U.
S. 378. Those cases involved the construction of the
Harter Act, and the language there employed is different. The
Harter Act provides in § 3 that the vessel owner shall not be
liable if he "shall exercise due diligence to make the said vessel
in all respects seaworthy." And, under that Act, the
requirement
Page 287 U. S. 427
of due diligence is not satisfied if there is negligence on the
part of any of the ship's employees.
International Navigation
Co. v. Farr & Bailey Mfg. Co., supra. But the Act does not
purport to create any general duty on the part of shipowners. Its
requirement of due diligence is imposed as a condition of securing
immunity from liability for certain kinds of losses, like those due
to errors in navigation or management. That the provisions of the
Harter Act do not refer to liability for losses arising from fire
is made clear by § 6 (27 Stat. 446), which declares that the Act
"shall not be held to modify or repeal §§ 4281, 4282, and 4283 of
the Revised Statutes" -- § 4282 being the fire statute. The courts
have been careful not to thwart the purpose of the fire statute by
interpreting as "neglect" of the owners the breach of what in other
connections is held to be a nondelegable duty. [
Footnote 3] Nothing
Page 287 U. S. 428
contained in the opinion of this Court in
The Malcolm
Baxter, Jr., 277 U. S. 323, is
to be taken as indicating a different view.
Second. No provision in any bill of lading deprives the
vessel owner of the protection given by the fire statute. There are
238 bills of lading on 18 different forms. In no bill of lading is
there an express warranty of seaworthiness. In each, there is a
provision expressly incorporating the fire statute. Many of the
bills of lading contain also this provision:
"It is mutually agreed that . . . the carrier shall not be
liable, as carrier or otherwise, for any loss, damage, delay or
default, whether occurring during transit or before, . . .
occasioned by fire or flood, from any cause or wheresoever
occurring; . . . by explosion, bursting of boilers, breakage of
shafts, of any latent defect in hull, machinery, or appurtenances,
or unseaworthiness of the steamer, whether existing at the time of
shipment, or at the beginning of the voyage, provided the owners
have exercised due diligence to make the steamer seaworthy. . .
."
So far as loss from fire is concerned, the quoted provision
leaves the area of personal neglect unchanged, adding nothing to
the obligations of the vessel owner. And in view of the express
incorporation of the fire statute in the bill of lading, the
provision is not to be construed as a waiver of the statutory
immunity for loss by fire. [
Footnote 4]
Page 287 U. S. 429
Third. There was no personal contract of the vessel
owner superseding the fire statute. The cargo owners invoke the
rule announced in
Pendleton v. Benner Line, 246 U.
S. 353, and
Luckenbach v. McCahan Sugar Refining
Co., 248 U. S. 139.
Those cases have no application here. They declare that the
statutes limiting the amount of liability of a shipowner to the
amount or value of his interest in the vessel and her freight then
pending (Act of March 3, 1851, c. 43, § 3, R.S. § 4283; Act of June
26, 1884, c. 121, § 18, 23 Stat. 53, 57) do not apply to personal
contracts of the owner. [
Footnote
5] Here, the inquiry is not whether there was a "personal
contract" on which the shipowner can be held to the full amount of
the loss, but whether he can be held liable at all. He cannot be
held liable unless, by agreement or otherwise, he has waived the
benefit of the fire statute. The only basis for the claim of waiver
is the bill of lading. What has already been said concerning their
provisions disposes of that inquiry.
Moreover, the rule announced in the
Pendleton and
Luckenbach cases has been applied by this Court only to
private charter parties executed by the owner. The bills of lading,
which are said to contain "personal contracts," were not executed
by the respondent or by any of its officers or managers. They were
given, in large part, by agents of railroads or other steamship
companies, and are to be regarded merely as ship's documents.
Compare Capitol Transportation Co. v. Cambria Steel Co.,
249 U. S. 334,
249 U. S.
336.
The District Court was right in dismissing the libel, and the
decree of the Circuit Court of Appeals is accordingly
Affirmed.
[
Footnote 1]
Such a contention with respect to the English Act was rejected
by the House of Lords.
Louis Dreyfus & Co. v. Tempus
Shipping Co., [1931] A.C. 726.
See also Virginia Carolina
Chemical Co. v. Norfolk & N.A. Steam Shipping Co., [1912]
1 K.B. 229;
Ingram & Royle v. Services Maritimes du
Treport, [1914] 1 K.B. 541.
Compare Royal Exchange
Assurance v. Kingsley Navigation Co., [1923] A.C. 235,
construing the Canadian act. The English act relieves the shipowner
from liability for loss from fire where the loss occurred "without
his actual fault or privity." Merchants Shipping Act, 1894, § 502;
57 & 58 Vict., c. 60. The original English fire statute of
1786, 26 Geo. III, c. 86, which was the model for the American
statute of 1851, contained no exception for the owner's fault or
privity; the American enactment was a deliberate departure in that
respect. The bill as originally reported contained an exception
only for the "design" of the owner, but this was amended to read
"design or neglect."
See 23 Cong.Globe, 31st Cong., 2d
Sess., p. 715.
[
Footnote 2]
Compare also Christopher v. Grueby, 40 F.2d 8, 12-13,
cited in behalf of the cargo owners, which deals with the liability
of the shipowner to seamen for failure to provide a seaworthy
vessel,
and Bethlehem Corp. v. Gutradt Co., 10 F.2d 769,
likewise cited, which deals with the responsibility of the
shipowner, apart from statutory exemption, for loss arising from
the default of a shipbuilder on a contract to repair.
[
Footnote 3]
In all the cases where immunity from liability for damage by
fire was held to be lost because of neglect of the owners, the
courts have based their finding of neglect on the action of the
owners or managing agents, or upon their failure to see that action
was taken where it was their duty to act.
The Elizabeth
Dantzler, 263 F. 596;
Hines v. Butler, 278 F. 877;
Williams S.S. Co. v. Wilbur, 9 F.2d 622;
Arkell &
Douglas v. United States, 13 F.2d 555;
Bank Line v.
Porter, 25 F.2d 843;
Petition of Sinclair Navigation
Co., 27 F.2d 606;
United States v. Charbonnier, 45
F.2d 174;
The Older, 1 F. Supp. 119. In
The Etna
Maru, 20 F.2d 143, the District Court was of opinion that the
fire statute did not confer immunity where the loss was due to
unseaworthiness existing at the beginning of the voyage. As an
alternative ground of decision, however, the court held that the
vessel owner had not overcome a presumption of personal neglect
arising from the fact of unseaworthiness. On appeal, the case was
affirmed, 33 F.2d 232, but apparently on the ground that the fire
statute, like the statutes limiting the extent of liability, leaves
the owner liable, in any event, up to the value of the ship.
But compare The Rapid Transit, 52 F. 320, 321. Insofar as
the decision rests on the ground advanced by the cargo owners here,
it cannot be approved.
[
Footnote 4]
Compare The Strathdon, 101 F. 600, 602;
The
Hoffmans, 171 F. 455, 462, 463;
The
Yungay, 58 F.2d
352, 357;
D'Utassy v. Mallory S.S. Co., 162 App.Div.
410, 412-414, 147 N.Y.S. 313,
aff'd per curiam, 223 N.Y.
592, 119 N.E. 1040;
Louis Dreyfus & Co. v. Tempus Shipping
Co., [1931] A.C. 726;
Ingram & Royle v. Services
Maritimes du Treport, [1914] 1 K.B. 541. With these cases
compare The Poleric, 17 F.2d 513, 514-516,
aff'd sub.
nom. Bank Line v. Porter, 25 F.2d 843;
Virginia Carolina
Chemical Co. v. Norfolk & N.A. Steam Shipping Co., [1912]
1 K.B. 229.
[
Footnote 5]
See also Richardson v. Harmon, 222 U. S.
96,
222 U. S. 106.
Compare In re Pennsylvania R. Co., 48 F.2d 559, 566;
The No. 34, 25 F.2d 602, 607;
The Soerstad, 257
F. 130.