A consignee of goods has a right, in his own name, to libel a
vessel for their nondelivery unless there is something to show that
he had no interest in them. The presumption is that he had an
interest, and to defeat the right to sue in his own name, this
presumption must be rebutted by proof.
In the present case, there is no such proof.
The goods being thrown overboard, the facts in this case show
that the jettison was justifiable and the loss occasioned by the
perils of the sea.
The nature of the contract explained between the master and
owner of a vessel and the shipper where the latter knows that the
articles shipped are to be carried upon the deck, and the cases
upon this subject examined.
In this case the evidence shows that there was no want of due
diligence and skill either in the construction of the vessel or the
stowage of the cargo.
Minturn libeled The Hornet
for the nondelivery of two
steam boilers and chimneys shipped on board of that vessel in the
port of New York and consigned to the libellant.
Alexander M. Lawrence and seven others intervened as claimants,
and after a hearing upon the pleadings and profits, the district
judge decreed that the libellant should recover $25,275 and costs.
From this decree the claimants appealed to this Court.
The case is stated in the opinion of the Court.
Page 58 U. S. 105
MR. JUSTICE CURTIS delivered the opinion of the Court.
This is an appeal from a decree of the District Court of the
United States for the Northern District of California, sitting in
admiralty. The appellee filed his libel in that court against the
for the nondelivery of two steam boilers and
chimneys shipped on board that vessel in the port of New York and
consigned to the libellant.
The appellants intervened as owners of the ship, and upon the
pleadings and proofs the district court made a decree in favor of
the libellant. The claimants appealed.
The first question to be determined on the appeal is whether the
libellant had a right to sue in his own name. The facts bearing on
this question are that on the nineteenth day of July, 1851, Edward
Minturn, at New York, made a contract with the agent of the ship
which was reduced to writing, as follows:
"Memorandum of agreement to ship on board the ship
by Edward Minturn, Esq., two boilers, two chimneys
or steam chests, smoke pipes in sheets, and some grate bars, in all
about forty tons weight, from this port to San Francisco,
California, for the sum of forty-five hundred dollars, with five
percent primage, the whole to go on deck except the grate bars and
sheet iron for smoke pipe. It is understood that the shipper is to
put them on the deck of the vessel at his expense, and the ship is
to discharge them as soon as convenient, and they are to be
received at Cunningham's wharf, in San Francisco, without other
than the ordinary charge per day for discharging. It is further
understood that the said boilers are to be ready to go on board
Page 58 U. S. 106
vessel on the ninth day of August or as soon thereafter as the
ship may require them, giving shipper two days' notice
"[Signed] EDWARD MINTURN"
"E. B. SUTTON"
"Agent for ship Hornet
It appeared that the boilers and chimneys were manufactured in
New York upon an order given by James Cunningham; that they were
intended for the steamer Senator,
a boat then in
California; that James Cunningham and Edward Minturn were part
owners of The Senator,
and that they paid the makers for
these articles. The bill of lading was as follows:
"210. Shipped in good order and well conditioned by Edward
Minturn on board the ship called The Hornet,
Lawrence is master, now lying in the port of New York and bound for
San Francisco, California, to say: two boilers, and two steam
chimneys for ditto, eight pieces sheet iron work, three pieces
pipe, one band, two hundred and four grate bars, sixteen grate bar
bearers, eight boiler bearers, six man-hole plates, eight boiler
doors, one bundle four bolts, two boxes; the whole to be discharged
as soon as convenient, and to be received at Cunningham's wharf, in
San Francisco, without other than the usual or ordinary charge for
discharging per day; being marked and numbered as in the
5 percent primage 225.00
E. B. SUTTON
84 Wall street
Dispatch line California packets
"Goods to be delivered at the vessel's tackles when ready to be
delivered. Not accountable for breakage, leakage, or rust; freight
payable before delivery, if required, and are to be delivered in
like order and condition at the port of San Francisco, the dangers
of the seas, fire, and collision only excepted, unto Charles
Minturn, or to his assigns, he or they paying freight for the said
boilers, steam chimneys, and other iron work, forty-five hundred
dollars, with five percent primage, and average accustomed."
"In witness whereof the master or purser of the said vessel hath
affirmed to four bills of lading, all of this tenor and date, one
of which being accomplished, the others to stand void."
"Dated in New York, the 19th day of August, 1851."
"[Signed] WILLIAM W. LAWRENCE"
Upon the proofs, we are of opinion that the libellant had a
right to sue the carrier in his own name. He is the consignee named
in the bill of lading, and in the absence of evidence to control
the effect of that document, the property is presumed to
Page 58 U. S. 107
be in him. In Evans v. Marlett,
1 Lord Raymond 271, it
is laid down that
"If goods, by bill of lading, are consigned to A, A is the
owner, and must bring the action against the master of the ship if
they are lost; but if the bill be special, to be delivered to A to
the use of B, B ought to bring the action."
Whether it be strictly correct to affirm that in the case first
put, A shall have a right of action against the carrier, though in
point of fact he be only an agent for the consignor, has been much
controverted. In Griffith v. Ingledew,
6 S. & R. 429,
goods were shipped by A for his own account and risk, but
deliverable under the bill of lading to B or his assigns. The
previous decisions were examined with great care. There was a
difference of opinion on the bench, Mr. Justice Gibson dissenting,
but the majority of the court held that by force of the bill of
lading, the legal title was in the consignee, and he could maintain
Since that decision was made, the question has been much
discussed both in this country and in England. It is not easy to
reconcile the decisions. We shall not attempt to do so here; the
case does not require it. For if we take the rule to be that an
action against the carrier cannot be brought by a consignee who has
no beneficial interest in the goods, it still remains true that a
presumption of such an interest in the consignee arises from a bill
of lading which makes the goods deliverable to him or his assigns.
This is admitted in the cases in which it has been held that the
consignee had not the right of action or was not liable for the
freight. Coleman v. Lambert,
5 M. & W. 502; Wright
5 B. & Ald. 350; Chandler v. Spraigue,
5 Met. 306.
In Grove v.
8 How. 439, this Court said: "The effect of
a consignment of goods generally is to vest the property in the
consignee," and though it is also there declared that this effect
may be controlled by special clauses in the bill of lading or by
yet the general effect of a bill of
lading to raise a presumption of property in goods in him to whom
it makes them deliverable is conceded.
This is in accordance with the rule given in Abbott on Shipping
Such being the presumption arising from the bill of lading, we
do not find it to be controlled by any proof in this case. It does
appear that Edward Minturn and James Cunningham were part owners of
for which boat these boilers and chimneys
were intended, and that they contracted with the makers of the
articles and paid for them, and that Edward Minturn shipped them in
New York. But all this leaves open the question whether the
libellant was not the managing owner
Page 58 U. S. 108
and ship's husband of The Senator,
California, where that boat was employed, attending to its repairs
and supplies for the joint account of himself and the other owners.
Indeed, the testimony of Squire, an agent of the libellant, in the
absence of all other evidence, tends to prove that such was the
fact, for he speaks of himself as acting for the libellant in
reference to the management of The Senator,
and says that,
her boilers being worn out, an order was sent out to obtain new
ones to replace the old. We understand this order to have been
given by the libellant for the boilers now in question.
Considering the burden of proof to have been on the respondents
to displace the prima facie
right of action of the
consignee arising from the bill of lading, that for aught he has
shown, and upon the proof, we may conclude that the consignee
ordered these articles as managing owner of The Senator,
and that, if so, he, as consignee and managing owner, might sustain
the libel in his own name, this objection to the decree must be
The next inquiry is whether the failure to deliver the boilers
and chimneys is justified.
sailed from New York on the 23d of August,
1851, having these articles on deck. On the 5th of September the
chimneys, and on the 12th of September the boilers, were thrown
Two questions arise:
1. Was the jettison necessarily made for the common safety? and,
2. Was the necessity attributable to any, and what, fault on the
part of the master or the vessel?
The material facts upon which the first of these questions
depends are that The Hornet
was a clipper ship of about
sixteen hundred tons burden, built at New York in the years 1850
and 1851, of the best materials in use for first-class ships at
that port. She had a cargo under deck, and the weight of these
boilers and chimneys on deck was somewhat over thirty-one tons. The
height of each of the boilers, above the deck at the forward end,
when stowed, was about twelve feet. The steam chimneys were between
five and six feet in diameter, and besides these there was a piece
of steam pipe weighing 667 pounds. The ship sailed on the 23d of
August, and on entering the gulf stream encountered rather heavy
weather and a cross-sea. The performance of the vessel in this sea
was found to be bad. On the 26th, a gale came on from the south,
veering to the northwest, and lasted until the night of the
Though this gale was not of uncommon severity, it raised a heavy
cross-sea. The effect of this sea was to cause the ship
Page 58 U. S. 109
to roll down to leeward so as to take in water over her rail;
she rose very slowly and then rolled over to windward, straining
and laboring in a manner described by the witnesses as very
unusual. She would not mind her helm, but would fall off; she would
settle down aft and take in water over her stern, and plunged
heavily forward. At sundown on the 27th, the wind lulled and the
sea became more smooth. It was found during and immediately after
the gale that the ship was very severely strained, so as to open
some wood-ends aft one-half to three quarters of an inch, and her
waterway seam half an inch, and that other injuries of an alarming
character had been received. The master then held a consultation
with his officers and drew up the following protest:
"August 29, 1851, latitude 31�0' N., longitude 61�5' W."
"At sea, on board ship Hornet,
of New York, William W.
Lawrence, master, bound from New York to San Francisco,
"We, the undersigned, master, officers, and mariners of the ship
of New York, do, after mature and serious
deliberation, enter this solemn protest:"
"That on the 26th day of August, 1851, the ship Hornet
being then in or about the longitude of 49�W., latitude 37�N.,
experienced a gale of wind from south, veering to N.W., and that
during said gale, which lasted until the night of the 27th of
August, the weight of the deck load, consisting of two boilers,
with furnaces attached, and two steam chimneys, the whole supposed
to be of the weight of forty tons or thereabouts, did cause the
ship to labor very hard, rolling gunwale deep, shipping large
bodies of water, straining the ship in her upper works and decks,
causing the ship to leak badly, and her pumps constantly worked,
placing our lives, ship, and cargo, in imminent peril for their
safety. We now, therefore, do most seriously and solemnly assert
that for the future preservation of the ship, and thereby our lives
and cargo, the said boilers, furnaces, and chimneys are unsafe on
the decks, and for the safety of the whole should be thrown
overboard as soon as possible, the weather and sea permitting."
"In testimony whereof to the above, we hereby subscribe our
This protest was signed by all the officers and by such of the
crew as could write, and its substantial facts are testified to by
the master and officers who were examined in the cause in such a
manner as to satisfy us of their truth.
Upon these facts, we have come to the conclusion that the
jettison was necessary for the common safety.
The nature of the case imposes on the master the duty, and
clothes him with the power, to judge and determine upon the
Page 58 U. S. 110
facts before him whether a jettison be necessary. He derives
this authority from the implied consent of all concerned in the
common adventure. The obligation of the owners is to appoint a
competent master, having reasonable skill and judgment and courage,
and they are liable if through his failure to possess or exert
these qualities in any emergency the interest of the shippers is
prejudiced. But they do not contract for his infallibility, nor
that he shall do, in an emergency, precisely what, after the event,
others may think would have been best.
If he was a competent master; if an emergency actually existed
calling for a decision, whether to make a jettison of a part of the
cargo; if he appears to have arrived at his decision with due
deliberation, by a fair exercise of his skill and discretion, with
no unreasonable timidity, and with an honest intent to do his duty,
the jettison is lawful. It will be deemed to have been necessary
for the common safety because the person to whom the law has
entrusted authority to decide upon and make it, has duly exercised
Applying these principles to the case before us, we find no
reason to doubt that this jettison was thus necessary. It is true
that when it was actually made, the sea was smooth and the ship in
no immediate danger. But it satisfactorily appears that these
boilers and chimneys could not be thrown overboard without the
greatest risk when there was any considerable sea. To require delay
until a storm, would be, in effect, to prohibit the sacrifice.
Precaution against dangers which are certain to occur is surely
proper. That they must experience gales and heavy seas at that
season in that voyage was so nearly certain that it was not
unreasonable to act on the assumption that they would occur and
prepare the ship to encounter them while in a smooth sea, when
alone they could do so.
We find the conduct of the master and crew in making the
jettison to have been lawful, and the remaining inquiry is whether
the necessity for it is to be attributed to any fault on the part
of the master or owners.
The libel alleges the loss of the goods to have been "through
the mere carelessness, unskillfulness, and misconduct of the said
master, his mariners, and servants."
We were at first inclined to the opinion that this allegation is
not broad enough to put in issue what the libellants have at the
hearing much relied on, and what we think is the main question in
this part of the case -- the sufficiency of the ship to carry this
cargo. It is, no doubt, the general rule that the owner warrants
his ship to be seaworthy for the voyage with the cargo contracted
for. But a breach of this implied contract of the owners does not
amount to negligence or want of skill of the master or
Page 58 U. S. 111
There would be much difficulty, therefore, in maintaining as a
general proposition that an allegation of negligence of the master
would let the libellant in to prove unseaworthiness of the
But it must be observed that this libellant relies not on
general unseaworthiness, but upon the fact that a vessel, staunch
and sufficient to carry a cargo, was overloaded by this burden on
the deck, and as the quantity of lading and the consequent trim and
seaworthiness of a vessel are matters as to which the master is
generally speaking bound to exercise his skill, and over which he
is entrusted for the benefit of all concerned with a supervision,
his failure to do so properly is negligence for which the owner may
be liable. While, therefore, we have some difficulty in respect to
the sufficiency of this allegation, we think it is such as
necessarily leads us into the inquiry whether the loss by jettison
was occasioned by negligence of the master in overloading the ship.
And as we find it extremely difficult, if not impossible, to
distinguish between the obligation of the owners and master in
these particulars, we shall proceed to consider the question
whether the case is one of culpable negligence or is within the
exception of perils of the seas contained in the bill of
There can be no doubt that a loss by a jettison occasioned by a
peril of the sea is a loss by a peril of the sea. In that case, the
sea peril is deemed the proximate cause of the loss. But if a
jettison of a cargo becomes necessary in consequence of any fault
or breach of contract by the master or owners, the jettison is
attributable to that fault or breach of contract, and not to sea
peril, though that also may be present and enter into the case.
This distinction is familiar in the law of insurance.
General Mut. Ins. Co. v.
14 How. 365, and cases there cited.
In this case, did the necessity for the jettison arise from any
fault or breach of contract by the master or owners?
Two grounds are assumed by the libellant. The first is that
considering the great weight of these articles, resting upon a
small part of the upper deck, sufficient means were not used to
support the weight and stiffen the ship so as to prevent the deck
from being strained.
This was a new ship, built of such materials and so fastened and
braced as to be uncommonly strong. The owners employed a ship
carpenter, who had worked on the vessel when built, to do what he
deemed necessary to support this unusual weight on the deck. He
describes what was done. The master superintended these
alterations. He and the carpenter deemed them sufficient. They were
both going to sea in the vessel, the one
Page 58 U. S. 112
as commander, the other as carpenter, and can hardly be supposed
to have omitted anything which they thought necessary for safety.
The owners do not appear to have restricted them in point of
expenditure. We cannot avoid the conclusion that everything was
done which these men thought necessary, and possessing, as they
must be presumed to have done, competent skill in their respective
occupations, they believed this part of the cargo was securely
stowed and fastened and stayed to go safely on the voyage. In point
of fact, however, after being subjected to the action of the sea in
a storm, it was found the deck had settled.
The second ground taken by the libellants is that the ship was
so overloaded by the great weight of these articles on deck as to
be unseaworthy, and as the jettison was made to relieve the vessel
from this condition, the owners are responsible for the loss. In
part, at least, the same principles of law will be found applicable
to both these grounds, and therefore we consider them together.
The principal question -- and it is one of much importance -- is
what is the extent and operation of the implied contract of the
owner respecting the ability of his ship to carry a particular deck
load which he receives on board, under a contract that it shall be
carried on deck, dangers of the seas excepted.
In general, the owner warrants the sufficiency of his vessel to
carry the cargo put on board by the freighter provided the vessel
be not injured by a peril of the sea. Besides this, he contracts
for the use of due care and skill in stowing the cargo and in
navigating the vessel.
But in applying these rules to cargo on deck, some peculiar
considerations must be borne in mind.
This bill of lading declares that the property is to go on deck.
It excepts perils of the seas. The exception must be construed with
reference to the particular adventure which the contract of
affreightment shows was contemplated by the parties. Under this
bill of lading, the question is not what in other circumstances
could be deemed a peril of the sea, but what is to be deemed such
when operating on this vessel, with this deck load. If a very
burdensome cargo, like iron, is taken on board, and heavy weather
met with, and a jettison made, it would not be a ground of claim
against the owner that the weather encountered would not have been
sufficient to justify a jettison if the cargo had been cotton.
And when this freighter consented to place on the deck of this
ship his boilers and chimneys, weighing upwards of thirty tons, not
distributed about the deck, but lying in a small space, must he not
be taken to have known that their necessary effect
Page 58 U. S. 113
might be to embarrass the sailing of the ship in a gale of wind
and cause her to labor in a heavy sea. The grounds upon which the
rights and obligations as to contribution of owners of cargo on
deck in case of jettison have long rested have an intimate
connection with this question. Valin, lib. 3, tit. 8, art. 12,
giving the reason of the rule that goods jettisoned from the deck
are not paid for in general average, but contribute if not thrown
"The reason why articles on deck, thrown overboard or damaged,
are not contributed for is that as they cannot but embarrass the
working of the ship, the presumption is that they have been
jettisoned before a full necessity for a jettison of cargo arose,
and only because they hindered and confused the maneuvering of the
This has been still more clearly expressed by Locre in his
Commentary on the Code du Commerce Maritime, lib. 2, tit. 12, art.
421. He says:
"Perhaps the common safety would not have made a jettison
necessary if the lading had not been in contravention of rule, if
it had not brought the dangers on the vessel, or contributed to
Similar views have been taken by the most approved writers on
the law of insurance, in this country and in England, and they have
been applied in many cases. Abbott on Shipping 481, 490, and notes;
3 Kent's Comm. 240; 2 Phillips on Ins. 71; 2 Arnold on Ins. 890. It
was remarked by Lord Denman in Milward v. Hibbert,
& El.N.S. 120, that the reason assigned by Valin that goods on
deck embarrassed the navigation of the ship is not sufficient to
form the basis of a universal rule excluding goods on deck from the
benefit of contribution, because it may be that in many cases,
goods can best and most safely be stowed on deck, and that they may
in some cases be so stowed as not to be in the way of the crew in
their operations. This may be true, but the point here is not
whether there may be cases in which the deck load does not
embarrass the navigation or increase the danger, but whether, in
case it does so, the shipper who has consented to his goods being
placed on deck under a special contract, and not pursuant to any
general custom, which might be evidence of the safety of the
practice, must not be taken to have known that such might be its
It was strongly urged by the libellant's counsel that the
shipper could not be supposed to have, and should not suffer for
not possessing, a knowledge of the capacity or sufficiency of the
ship; that the carrier was bound to know that the instrument by
which he agreed to perform a particular service was sufficient for
that service, and that, as these carriers contracted to convey this
deck load to San Francisco, they were obliged to
Page 58 U. S. 114
ascertain whether placing it on deck would overload their
vessel. This appears to have been the ground on which the court
below rested its decree.
This reasoning would be quite unanswerable if applied to a
shipment of cargo under deck, or to its being laden on deck without
the consent of the merchant, or to a contract in which perils of
the sea were not excepted. But the maritime codes and writers have
recognized the distinction between cargo placed on deck with the
consent of the shipper and cargo under deck.
There is not one of them which gives a recourse against the
master, the vessel, or the owners if the property lost had been
placed on deck with the consent of its owner, and they afford very
high evidence of the general and appropriate usages in this
particular of merchants and shipowners. Consolato, par Pardessus,
c. 186; Ord. de Mer, Valin, lib. 2, tit. 1, art. 12; Code du Com.
Mar. par Locre, art. 229, lib. 2, tit. 4, art. 229; Emerigon, ch.
12, sec. 42; Boulay Paty, tom. 4, 566, 568.
So the courts of this country and England and the writers on
this subject have treated the owner of goods on deck, with his
consent, as not having a claim on the master or owners of the ship
in case of jettison. The received law on the point is expressed by
Chancellor Kent with his usual precision in 3 Com. 240:
"Nor is the carrier in that case jettison of deck load
responsible to the owner unless the goods were stowed on deck
without the consent of the owner, or a general custom binding him,
and then he would be chargeable with the loss."
The cases of Smith v. Wright,
1 Caines 43; Dodge v.
5 Green. 286; Hampton v. Brig Thaddeus,
Martin 582; Story on Bailments 339, sec. 531; and Gould v.
4 Bing.N.C. 142, support this statement. In the
last-mentioned case, Tindal, C.J., says:
"Now where the loading on deck has taken place with the consent
of the merchant, it is obvious that no remedy against the shipowner
or master for a wrongful loading of the goods on deck can exist.
The foreign authorities are indeed express on that point, and the
general rule of the English law that no one can maintain an action
for a wrong where he has consented or contributed to the act which
occasions his loss leads to the same conclusion."
It must be admitted that no one of the authorities referred to
go so far as to maintain that the shipowner contracts no obligation
whatever to the merchant respecting the sufficiency of the vessel
to carry the deck load received on board. They should not be
understood as supporting such a position. The extent to which we
understand them to go, and the law which
Page 58 U. S. 115
we intend to lay down, is this: that if the vessel is seaworthy
to carry a cargo under deck, and there was no general custom to
carry such goods on deck in such a voyage, and the loss is to be
attributed solely to the fact that the goods were on deck, and
their owner had consented to their being there, he has no recourse
against the master, owners, or vessel, for a jettison rendered
necessary for the common safety by a storm, though that storm, in
all probability, would have produced no injurious effect on the
vessel if not thus laden. It is not for him to say that in the
first storm the vessel encountered, though not of unusual severity,
she proved to be unable to carry the deck load, and so was not of
sufficient capacity to perform the contract into which the carrier
The carrier does not contract that a deck load shall not
embarrass the navigation of the vessel in a storm or that it shall
not cause her so to roll and labor in a heavy sea as to strain and
endanger the vessel. In short, he does not warrant the sufficiency
of his vessel, if otherwise stanch and seaworthy, to withstand any
extraordinary action of the sea when thus laden. If the vessel is
in itself stanch and seaworthy and her inability to resist a storm
arises solely from the position of a part of the cargo on the deck,
the owner of the cargo, who has consented to this mode of shipment,
cannot recover from the ship or its owners on the ground of
negligence or breach of an implied contract respecting
seaworthiness. His right to contribution is not involved in this
Applying these principles to the case before us, there is no
difficulty in coming to a satisfactory conclusion. This vessel was
uncommonly stanch and strong. The amount of dead weight on board
was not excessive, for there is no pretense that she was too deep
in the water. There was no apparent inability to carry the deck
load when she sailed, nor until heavy seas were encountered. Her
inability to carry these boilers and chimneys arose solely from
their particular position on deck.
The libellant, through the shipper in New York, consented to
their being placed in this position. He took the risk of their
rendering the ship unmanageable in a storm, and he, and not the
shipowners, must bear the loss occasioned by their being placed on
the deck so far as the liability for the loss rests upon any ground
of negligence in the place of stowage or breach of warranty
respecting the seaworthiness of the vessel. As to the argument that
there was negligence in not properly stowing and supporting this
burden on deck, we think it is not made out in proof. The master is
bound to use due diligence and skill in stowing and staying the
cargo, but there is no absolute warranty that what is done shall
prove sufficient. We are of
Page 58 U. S. 116
opinion that due diligence and skill were used. Besides, we do
not find the necessity for the jettison attributable to any defects
in these particulars. It may be that additional supports of the
lower deck would have assisted the vessel in bearing the weight,
but we see no reason to believe they would have enabled it to carry
this unusual burden through a storm, and therefore, if we found
negligence in this particular, we could not declare that the loss
was to be attributed to it.
The decree of the district court is to be
Reversed and the cause remanded, with directions to dismiss
the libel with costs.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of California, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court that the decree of the said district court in this cause be
and the same is hereby reversed with costs, and that this cause be
and the same is hereby remanded to the said district court with
directions to that court to dismiss the libel with costs.