Where a cargo of potatoes was shipped at Hamburg to be delivered
at New York, the evidence shows that they were in bad condition
when shipped, and consequently the vessel is not responsible for
The facts are stated in the opinion of the Court.
MR. JUSTICE CATRON delivered the opinion of the Court.
This is a proceeding in rem
against a foreign vessel by
libel, charging that the libellant shipped on her, at Hamburg, in
Germany, 5,004 bushels of potatoes in good order and well
conditioned for the purpose of shipping, and that, by the long and
willful delay of the vessel at Hamburg and on her voyage to New
York, the port of destination, and through the carelessness and
misconduct of the master and owner, the potatoes became and were
injured, decayed, and wholly lost to the libellant.
To this charge the respondents answer that the decay of the
potatoes was caused by their lying in port for some time before
they were put on board, and that they were delivered to the vessel
in a damp and wet state, and were not in a sound condition. The
alleged negligence is denied generally.
On the foregoing issue the district court made an interlocutory
decree declaring that
"the libellant recover in this action against the ship, the
value of the potatoes at Hamburg at the time they were laden on
board, together with charges and expenses, unless it be proved by
the claimants that they were not then in a good, sound condition or
that they perished afterwards in consequence of inherent disease or
defects existing at the time of lading the same, and not from the
prolonged detention in their transportation, and it is further
ordered that it be referred to a commissioner to ascertain and
report the cause of the destruction and loss of the potatoes and
their value at the time of shipment. "
Page 59 U. S. 232
The commissioner reported that he had heard the parties and
their testimony and found that the potatoes were in a sound
condition and that they did not perish afterwards in consequence of
inherent disease or defects existing at the time of loading the
same, but that the cause of their destruction and loss was the long
and protracted voyage of one hundred and nine days, and that they
were worth, when shipped, including charges, $2,256 77/100.
This report was adopted by the district court, and a decree made
An appeal was prosecuted by the claimants to the circuit court,
where the decree below was affirmed.
The potatoes were shipped in bulk in the hold of the vessel,
which mode of shipment was adopted at the instance of the
libellants' agent, who superintended their stowage.
It appears that much rain fell during the time the potatoes were
lying in lighters awaiting an opportunity to ship them, being about
a month, and it rained when they were alongside, and putting into
the vessel; and in our opinion it is satisfactorily established
that the potatoes were wet to a considerable extent when delivered
and stowed in the hold. Wulff, the stevedore under whose immediate
supervision they were stowed, deposes that they were wet,
"and considering their condition, and their being shipped in
bulk, he thinks they should not have been shipped across the
Atlantic, for said potatoes began to steam before the sailing of
the ship Howard.
The pilot of The Howard deposes that he saw them steam out of
the fore-hatch, during the passage down the river, before the
vessel got outside.
Kumpel deposes that he saw the potatoes in the lighters and on
board, and that they were wet. So the other witnesses prove.
Kundsten, mate of The Howard,
deposes that the potatoes
began to have a bad smell when the vessel was fourteen days out.
The captain says he smelt them when they were only eight days at
It is proved by all the witnesses of both sides that the potato
crop of 1849 was much blighted and diseased all over Germany, and
several witnesses declare that potatoes grown that year were
generally unfit for shipment across the ocean.
The libellants' witness Heidpriein answers to
cross-interrogatories that he purchased and sold that year
7,200,000 pounds of potatoes; that the crop was generally unsound,
and would not stand being shipped in bulk for so long a voyage as
from Hamburg to New York; says he shipped to Hamburg -- about forty
German miles, 160 of ours -- by water, and that no cargo arrived,
after being on the way from four to fourteen days, without
Page 59 U. S. 233
the potatoes' being in a bad condition. And respecting those
shipped on The Howard,
he states that Mr. Rawalle, Mr.
Wissman's agent, applied to him to purchase potatoes, and he,
having none to sell, told Mr. Rawalle of some for sale by Lehman
and Cleve -- which, not being sound, the deponent had refused to
buy -- and he understood Rawalle purchased them. Rawalle deposes
that he got the potatoes he shipped of Deven and Lehman, but
declares they were not sick or diseased.
Baalmann deposes that he saw the potatoes in the lighters; they
were in a bad condition and diseased, he having made examination by
cutting them with a knife, and found they were not in good shipping
order, and he knows that potatoes of that year's growth, shipped in
bulk to England, arrived there in a worthless state, and had to be
Wulff, the stevedore, says that when he stowed the potatoes he
examined them, by breaking and cutting; they appeared to be unsound
The master of The Howard
deposes that the ship
took a cargo of the potatoes purchased by Rawalle
for Wissman, and what The Miles
did not take were taken by
that, he the master, purchased some of the
potatoes that were going to The Miles,
for use on The
which proved to be diseased and unfit for use on being
The mate declares that the potatoes looked well outside, but
when cut open they had sickness in them; that the potatoes loaded
on both vessels came from the same man.
Arianson, master of the bark Miles,
deposes, that more
potatoes were sent to The Miles,
when loading at Hamburg,
than he could take on board, and that the balance were sent to
that the potatoes that he brought rotted. He
discovered it five or six weeks after going to sea, by the smell,
which was two or three weeks before arriving at New York.
The owner having been committed to the prima facie
facts of soundness and good condition by his contract of
affreightment, it was properly imposed on him by the district court
to establish the contrary by due proof; and our opinion is that the
proof produced by him does overcome the prima facie
presumption, and shows the potatoes of the libellant to have been
unsound and unfit for shipment, and especially unfit to be shipped
in bulk and wet, as was done by the libellant's agent.
Rawalle was examined for the libellant several times. He deposes
that the potatoes were put on board in good order, that they were
dry and sound, and in his opinion, if The Howard
sailed in due time, according to her advertisement, they would have
arrived at New York in a sound condition.
As a dealer in this article, the witness had very small
Page 59 U. S. 234
compared with various others examined, none of whom express the
belief that this cargo, stowed in bulk, could have reached the port
of destination uninjured. But what appears to us far more
satisfactory than the speculations of witnesses is that the cargo
of The Miles
was lost by decay, she being loaded at the
same time and in the same manner as was The Howard,
with part of the potatoes taken from the same lighters -- although
made her voyage in due time.
Our conclusion is that the libellant's case has no merits. It is
therefore ordered that the decree of the circuit court be
Reversed and the cause remanded to that court with
directions to dismiss the libel with costs.
MR. JUSTICE DANIEL.
In the opinion just pronounced, so far as it goes to demonstrate
the entire want of justice in the demand of the libellant, I
entirely concur, the testimony in this case having satisfactorily
ascertained that the loss of the cargo was inevitable from the
character of the subject of which that cargo consisted, and that by
no degree of diligence or care could it have been transported in
good condition to its point of destination. But independently of
these considerations, and in advance of them, there is another
which of itself, in my judgment, should have prevented the claim of
the libellant from being established or entertained at all in the
district and circuit courts, and which should operate with equal
effect in preventing its being entertained here.
This case is one of contract between the owner of property and
the master of a vessel to transport a cargo of potatoes from
Hamburg and to deliver them in New York. It is nothing more than a
contract between the owner of property and a carrier to convey a
given subject for hire. It was a contract made upon land to be
terminated and executed upon the land for a stipulated
compensation, and not strictly or properly a maritime contract in
any sense beyond any other contract in the performance of which a
party or agent would be compellable to cross the ocean or even to
pass a river. It did not begin and terminate on the sea. Upon this
contract an action might have been instituted in a court of law
either upon the charter party or the bill of lading, in conformity
with ancient and well settled practice, and could have been as
speedily and efficiently decided in such a court as it could be in
the present form of proceeding, less familiar to the common
understanding and habits of the country, dubious and undefined in
its claims to power, and attended with expenses beyond those
incident to the usual tribunals of the land.
Page 59 U. S. 235
My opinion is that for want of jurisdiction in the case
presented upon the face of the libel, that libel should have been
dismissed by the circuit court, and that this Court should now, for
that cause, order it to be dismissed.