1. The provision of § 3 of the Harter Act, relieving vessels and
their owners from the consequences of "fault or error in navigation
or management" of the vessels, does not relate to damage caused to
cargo by failure to care for it properly on the voyage,
e.g., failure to give proper ventilation to a shipment of
onions, causing decay. P.
293 U. S.
303.
2. It is the general rule that a carrier by sea who delivers in
bad condition cargo that he received for shipment in good condition
must bear the loss unless he can bring himself within some common
law or stipulated exception to his general liability. P.
293 U. S.
303.
3. To such exceptions, the law itself annexes a condition that
they shall relieve the carrier from liability for loss from an
excepted cause only if, in the course of the voyage, he has used
due care to guard against it, and this is recognized and continued
in the first section of the Harter Act, which makes it unlawful to
insert any clause in a bill of lading whereby the carrier shall be
relieved of liability for negligence. P.
293 U. S.
304.
4. A stipulation in a bill of lading excepting liability for
damage to perishable cargo by "decay" relates to decay due to
inherent defects in the cargo or caused by excepted perils of the
sea; it leaves the carrier liable for decay resulting from
negligent stowage of the cargo or failure to care for it properly
during the voyage. P.
293 U. S.
305.
Page 293 U. S. 297
5. It appeared by the evidence that decay of a cargo of onions
was the result of poor ventilation caused by closure of hatches and
ventilators for many hours during the voyage, and that, for a
specified part of this time, the closure was proper because of bad
weather, but for the rest of the time it was improper.
Held that the burden was on the carrier to show how much
of the damage was due to the sea peril (excepted in the bill of
lading), and that, failing in this, the ship was liable for the
entire loss. P.
293 U. S.
306.
70 F.2d 261 reversed.
Certiorari to review the reversal of a decree in admiralty
finding a ship liable for damage to a cargo of onions.
Page 293 U. S. 301
MR. JUSTICE STONE delivered the opinion of the Court.
Petitioners brought suit in admiralty in the District Court for
Southern New York to recover damages for injury to a shipment of
onions on respondent's steamship
Vallescura from Spain to
New York City. The onions, receipt of which in apparent good
condition was acknowledged by the bill of lading, were delivered in
New York damaged by decay. The vessel pleaded as a defense an
exception in the bill of lading from liability for damage by
"decay" and "perils of the seas," and that the damage "was not due
to any cause or event arising through any negligence on the part of
the vessel, her master, owner, or agents."
On the trial, there was evidence that the decay was caused by
improper ventilation of the cargo during the voyage, and that the
failure to ventilate was due in part to closing of the hatches and
ventilators made necessary by heavy weather, and in part to the
neglect of the master and crew in failing to keep them open at
night in fair weather. The District Court entered an interlocutory
decree adjudging that the libelants recover the amount of the
damage sustained by them caused by closing the hatches and
ventilators during good weather, and appointing a special
commissioner to ascertain and compute the amount of damage. 43 F.2d
247.
The commissioner, after hearing evidence, found that it was
impossible to ascertain how much of the damage was due to want of
ventilation in fair weather and how much to want of it in bad. But,
after comparing the periods during which the ventilators were
negligently closed with those during which they were open or
properly closed,
* he stated: "It
would seem therefore that the
Page 293 U. S. 302
greater part of the damage must have been due to improper
shutting of the hatches and ventilators." He concluded that as the
vessel had failed to show what part of the damage was due to bad
weather, the petitioner should recover the full amount of the
damage. The District Court, accepting the report of the
commissioner as presumably correct, as required by Admiralty Rule
43 1/2, 286 U.S. 572, found no basis for rejecting its conclusions,
and gave judgment to libelants accordingly. The Court of Appeals
for the Second Circuit reversed, 70 F.2d 261, holding that, as the
damage was within the clause of the bill of lading exempting the
vessel from liability for decay, the burden was on petitioner to
show what part of the damage was taken out of the exception because
due to respondent's negligence.
Although certiorari was granted to review this ruling of the
court below, most of respondent's argument before us was given over
to the contention that the record discloses no finding, by either
court below, that any part of the damage was caused by respondent's
negligence. The decision of the District Court was made before the
promulgation of rule 46 1/2 in Admiralty, 281 U.S. 773, requiring
the trial court to make special findings of fact. No formal
findings were made, but, in directing entry of the interlocutory
decree, and after reviewing the evidence and commenting on the fact
that the hatches and ventilators had been kept closed at night in
fair weather, a circumstance which the trial judge declared
established negligence in the care and custody of the cargo, he
stated:
"Thus, it appears that this notoriously perishable cargo of
Spanish Onions (The Buckleigh, 1929 A.M.C. 449-450) was deprived of
all ventilation during the nighttime, regardless of the state of
the weather. Such treatment was obviously ruinous, and must have
caused substantial damage."
We have no doubt that this was intended to
Page 293 U. S. 303
be a finding that negligence in failing to provide proper
ventilation was the cause of some of the damage, and that, as such,
it was adequately supported by evidence. The commissioner and the
court below assumed it to be such, and we so accept it.
The failure to ventilate the cargo was not a "fault or error in
navigation or management" of the vessel, from the consequences of
which it may be relieved by § 3 of the Harter Act of February 13,
1893, § 3, c. 105, 27 Stat. 445; § 192, Tit. 46, U.S.C. The
management was of the cargo, within the meaning of §§ 1 and 2 of
the Act, and not of the vessel, to which § 3 relates.
The
Germanic, 196 U. S. 589,
196 U. S. 597;
Knott v. Botony Mills, 179 U. S. 69,
179 U. S. 73-74;
The Jean Bart, 197 F. 1002, 1006. Hence, we pass to the
decisive question whether, in view of the presumptions which aid
the shipper in establishing the vessel's liability under a contract
for carriage by sea, it was necessary for the petitioners to offer
further evidence in order to recover the damage which they have
suffered. If, in the state of the proof which the record exhibits,
recovery depends upon their ability to produce evidence which would
enable the court to separate the amount of damage attributable to
respondent's negligence from that attributable to the unavoidable
failure to ventilate in bad weather, they have failed to do so, and
judgment must go against them. But if respondent can relieve itself
from liability only by showing what part of the damage was due to
sea peril, in that bad weather prevented ventilation, judgment must
go against it for the full damages.
In general, the burden rests upon the carrier of goods by sea to
bring himself within any exception relieving him from the liability
which the law otherwise imposes on him. This is true at common law
with respect to the exceptions which the law itself annexed to his
undertaking,
Page 293 U. S. 304
such as his immunity from liability for act of God or the public
enemy.
See Carver, Carriage by Sea (7th Ed.), Chapter I.
The rule applies equally with respect to other exceptions for which
the law permits him to stipulate.
Clark v.
Barnwell, 12 How. 272,
53 U. S. 280;
Rich v.
Lambert, 12 How. 347,
53 U. S. 357;
The Niagara v.
Cordes, 21 How. 7,
62 U. S. 29;
The Maggie
Hammond, 9 Wall. 435,
76 U. S. 459;
The Edwin I. Morrison, 153 U. S. 199,
153 U. S. 211;
The Folmina, 212 U. S. 354,
212 U. S. 361.
The reason for the rule is apparent. He is a bailee intrusted with
the shipper's goods, with respect to the care and safe delivery of
which the law imposes upon him an extraordinary duty. Discharge of
the duty is peculiarly within his control. All the facts and
circumstances upon which he may rely to relieve him of that duty
are peculiarly within his knowledge, and usually unknown to the
shipper. In consequence, the law casts upon him the burden of the
loss which he cannot explain or, explaining, bring within the
exceptional case in which he is relieved from liability.
See
Bank of Kentucky v. Adams Express Co., 93 U. S.
174,
93 U. S. 184;
Chicago & Eastern Illinois R. Co. v. Collins Produce
Co., 249 U. S. 186,
249 U. S.
192-193;
Railroad Co. v.
Lockwood, 17 Wall. 357,
84 U. S.
379-380.
To such exceptions the law itself annexes a condition that they
shall relieve the carrier from liability for loss from an excepted
cause only if, in the course of the voyage, he has used due care to
guard against it.
Liverpool & Great Western Steam Co. v.
Phenix Insurance Co., 129 U. S. 397,
129 U. S. 438;
Compania De Navigacion la Flecha v. Brauer, 168 U.
S. 104,
168 U. S. 117.
This rule is recognized and continued in the first section of the
Harter Act, which makes it unlawful to insert any clause in a bill
of lading whereby the carrier shall be relieved of liability for
negligence.
It is commonly said that, when the carrier succeeds in
establishing that the injury is from an excepted cause,
Page 293 U. S. 305
the burden is then on the shipper to show that that cause would
not have produced the injury but for the carrier's negligence in
failing to guard against it. Such we may assume the rule to be, at
least to the extent of requiring the shipper to give evidence of
negligence where the carrier has sustained the burden of showing
that the immediate cause of the loss or injury is an excepted
peril.
Clark v.
Barnwell, 12 How. 272,
53 U. S. 280;
Memphis & C. Railroad Co.
v. Reeves, 10 Wall. 176,
77 U. S.
189-190;
Western Transportation Co. v.
Downer, 11 Wall. 129,
78 U. S. 134;
The Victory & The Plymothian, 168 U.
S. 410,
168 U. S. 423;
Cau v. Texas & Pacific Ry. Co., 194 U.
S. 427,
194 U. S. 432;
The Malcolm Baxter, 277 U. S. 323,
277 U. S.
334.
But this is plainly not the case where the efficient cause of
the injury for which the carrier is
prima facie liable is
not shown to be an excepted peril.
The
Mohler, 21 Wall. 230,
88 U. S. 234;
The Edwin I. Morrison, supra, 153
U. S. 211. If he delivers a cargo damaged by causes
unknown or unexplained, which had been received in good condition,
he is subject to the rule applicable to all bailees, that such
evidence makes out a
prima facie case of liability. It is
sufficient, if the carrier fails to show that the damage is from an
excepted cause, to cast on him the further burden of showing that
the damage is not due to failure properly to stow or care for the
cargo during the voyage.
Rich v. Lambert, supra,
53 U. S. 357;
The Maggie Hammond, supra, 76 U. S. 459;
The Folmina, 212 U. S. 354,
212 U. S. 361;
Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co.,
270 U. S. 416,
270 U. S.
422-423.
Here, the stipulation was for exemption from liability for a
particular kind of injury, decay. But the decay of a perishable
cargo is not a cause; it is an effect. It may be the result of a
number of causes, for some of which, such as the inherent defects
of the cargo, or, under the contract, sea peril making it
impossible to ventilate properly, the carrier is not liable. For
others, such as negligent stowage, or failure to care for the cargo
properly during the
Page 293 U. S. 306
voyage, he is liable. The stipulation thus did not add to the
causes of injury from which the carrier court claim immunity. It
could not relieve him from liability for want of diligence in the
stowage or care of the cargo.
It is unnecessary for us to consider whether the effect of the
clause is to relieve the carrier from the necessity, in the first
instance, of offering evidence of due diligence in caring for a
cargo received in good condition, and delivered in a state of
decay.
See The Hindoustan, 67 F. 794, 795;
The
Patria, 132 F. 971, 972;
Loma Fruit Co. v. International
Navigation Co., Ltd., 11 F.2d 124, 125;
The Gothic
Star, 4 F. Supp. 240, 241. For here want of diligence in
providing proper ventilation is established and it is found that
the failure to ventilate has caused the damage. It is enough that
the clause plainly cannot be taken to relieve the vessel from
bringing itself within the exception from liability for damage by
sea peril where the shipper has carried the burden of showing that
the decay is due either to sea peril, in that bad weather prevented
ventilation, or to the vessel's negligence. Where the state of the
proof is such as to show that the damage is due either to an
excepted peril or to the carrier's negligent care of the cargo, it
is for him to bring himself within the exception or to show that he
has not been negligent.
The Folmina, supra.
Similarly, the carrier must bear the entire loss where it
appears that the injury to cargo is due either to sea peril or
negligent stowage, or both, and he fails to show what damage is
attributable to sea peril.
Corsar v. J. D. Spreckels &
Bros. Co., 141 F. 260, 264;
The Gualala, 178 F. 402,
406;
The Jeanie, 236 F. 463, 472;
The Excellent,
16 F. 148;
The Nith, 36 F. 383, 384;
Speyer v. The
Mary Belle Roberts, 22 Fed.Cas. 929, No. 13,240;
Mainwaring v. The Carrie Delap, 1 F. 874, 879;
The
Aspasia, 79 F. 91;
Page 293 U. S. 307
Knohr & Burchard v. Pacific Creosoting Co., 181 F.
856, 860;
The Charles Rohde, 8 F.2d 506, 507;
H. E.
Hodgson & Co., Ltd. v. Royal Mail Steam Packet Co., 33
F.2d 337. In each of these cases, the carrier is charged with the
responsibility for a loss which, in fact may not be due to his
fault, merely because the law, in pursuance of a wise policy, casts
on him the burden of showing facts relieving him from
liability.
The vessel in the present case is in no better position because,
upon the evidence, it appears that some of the damage, in an amount
not ascertainable, is due to sea peril. That does not remove the
burden of showing facts relieving it from liability. If it remains
liable for the whole amount of the damage because it is unable to
show that sea peril was a cause of the loss, it must equally remain
so if it cannot show what part of the loss is due to that cause.
Speyer v. The Mary Belle Roberts, supra; The Rona, 5 Asp.
259, 262; Carver, Carriage by Sea (7th Ed.), § 78, p. 114.
Since the respondent has failed throughout to sustain the
burden, which rested upon it at the outset, of showing to what
extent sea peril was the effective cause of the damage, and as the
petitioners are without fault, no question of apportionment or
division of the damage arises.
Reversed.
* The voyage lasted twenty-three days. The commissioner found
that, during the voyage, day and night together, the hatches and
ventilators were kept open only 170 hours, that they were properly
closed 144 hours, and improperly closed for 238 hours.