Where bills of lading for goods, shipped on board of a steamboat
in the River Mississippi, mentioned that the carrier was not to be
responsible for accidents which happened from the "perils of the
river," these words did not include fire amongst those perils, and
the carrier was responsible for losses by fire, although the boat
was consumed without any negligence or fault of the owners, their
agents, or servants.
The evidence of a witness was not admissible, who offered to
testify that he had not known a case where the omission of the word
"fire," in the exceptions mentioned in the bill of lading, was
considered to give a claim against the boat on account of a loss by
fire.
There is no ambiguity which requires to be explained, and the
evidence fails to establish a usage.
An insurance company, which paid these losses, had a right to
seek relief from the owners of the boat.
This relief could be sought in equity, not only upon the general
principles of equity jurisprudence, but also because, in this case,
a number of shipments were joined in the same bill, and thus a
multiplicity of suits was avoided.
Page 60 U. S. 313
The bill was filed by the Memphis Insurance Company, a
corporation created by the laws of Tennessee, and whose
stockholders were citizens thereof, against the owners of the
steamboat
Convoy. In February, 1849, they received on
board of their boat a large amount of cotton, to be carried from
Memphis to New Orleans. The boat and cargo were destroyed by fire
on the downward voyage, without any fault or negligence of the
owners, their agents, or servants. The insurance company paid the
owners of the cotton the amounts of their several insurances, and
then filed this bill to recover such sums from the owners of the
boat. The facts are more particularly stated in the opinion of the
Court. The circuit court held the owners of the boat liable, and
rendered a decree against them for the amounts paid by the
insurance company.
There were fifteen different bills of lading mentioned in the
bill. The first five, covering three hundred and eighty-eight bales
of cotton, stipulated for the delivery at New Orleans, "the dangers
of the river only excepted." In the sixth, seventh, and eighth,
covering one hundred and twenty-one bales, "the dangers of the
river and unavoidable accidents only" are excepted. In the ninth,
fourteenth, and fifteenth, covering two hundred and seventy-four
bales, "the unavoidable dangers of the river and fire only" are
excepted; and in the tenth, eleventh, twelfth, and thirteenth, "the
dangers of the river and fire only" are excepted. The ground upon
which the owners of the boat were claimed to be liable upon those
bills of lading, where "fire" was excepted, was that the fire arose
from carelessness. But in the progress of the trial this branch of
the claim was given up, and the claim of the plaintiffs was
declared to rest upon the construction to be given to the bills of
lading, in which the vessel was merely exempted from "the dangers
of the river," or "the dangers of the river and unavoidable
accidents."
The circuit court decreed that the owners of the boat were
liable upon those bills of lading which contained the exception
only of "the dangers of the river," being the first five mentioned
in the bill, and dismissed the bill as to the relief sought in
respect to the bills of lading in which "the dangers of the river
and unavoidable accidents" are excepted, being the sixth, seventh,
and eighth, mentioned in the bill. The owners of the boat appealed
to this Court.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
Page 60 U. S. 314
The appellee filed a bill in the circuit court against the
appellants, the owners of the steamboat
Convoy, a vessel
formerly employed in the navigation of the Mississippi River, and
which, in 1849, was consumed by fire, with a cargo of cotton.
The appellee is an insurance corporation of Memphis, Tennessee,
and insured eleven hundred and fifty-two bales of the cotton
belonging to this cargo from loss by fire; this insurance was
effected upon fifteen distinct parcels, and shipped mostly from
Tennessee to a number of consignees in New Orleans. The company
adjusted the losses with the assured on their policies, and bring
this suit for reimbursement, by enforcing the claims of the
shippers against the owners. These answer the bill by a denial of
their legal responsibility for the loss. They maintain that fire is
one of the perils of the River Mississippi; that all the bills of
lading that exempt the carrier from a loss by perils of the river,
imply fire as one of those perils; that the variations in the bills
of lading, some including "fire," and "unavoidable accidents" as
well as fire, are referable to the fact that they are preferred by
different shippers, who have different forms for expressing the
same legal consequence. That they all understand that a carrier is
exempt from a liability for fire on a bill of lading exonerating
him from the risks of the river.
It was admitted on the hearing that the boat was consumed,
without any negligence or fault of the owners, their agents, or
servants. The circuit court excused the owners from losses, where
the bills of lading contained an exception of fire or unavoidable
accidents, but condemned them on the others, to satisfy the demand
of the company.
It cannot be denied that the appellants are responsible,
according to the strictness of the common law rule determining the
carrier is liability, unless an accidental fire is one of the
exceptions included in the term "perils of the river." These words
include risks arising from natural accidents peculiar to the river,
which do not happen by the intervention of man, nor are to be
prevented by human prudence; and have been extended to comprehend
losses arising from some irresistible force or overwhelming power
which no ordinary skill could anticipate or evade.
Jones v.
Pitcher, 3 S. & R.P. 136; 4 Yerg. 48; 5 Yerg. 82;
Schooner Reeside, 2 Sum. 568.
They exonerate a carrier from a liability for a loss arising
from an attack of pirates, or from a collision of ships, when there
is no negligence or fault on the part of the master and crew.
Latterly, the courts have shown an indisposition to extend the
comprehension of these words. The destruction of a
Page 60 U. S. 315
vessel by worms at sea is not accounted a loss by the perils of
the sea; nor was a damage from bilging, arising in consequence of
the insufficiency of tackle for getting her from the dock; nor was
damage occasioned to a vessel by her props being carried away by
the tide while she was undergoing repairs on the beach, excused, as
falling within that exception. In
Laveroni v. Drury, 8 Ex.
166, a question arose whether a damage to a cargo of cheese,
occasioned by rats, was within the exception of the dangers or
accidents of the sea and navigation; and the Continental and
American authorities were cited to the Barons of the Exchequer to
show that it was, and that the carrier was excused, he having taken
the usual and proper precautions against them.
That court decided otherwise, and said:
"The exception includes only a danger or accident of the sea or
navigation, properly so called,
viz., one caused by the
violence of the winds and waves, a
vis major, acting upon
a seaworthy and substantial ship, and does not cover damage by
rats, which is a kind of destruction not peculiar to the sea or
navigation, or arising directly from it, but one to which such a
commodity as cheese is equally liable in a warehouse on land as in
a ship at sea."
And the court conclude
"That the liability of the master and owner of a general ship is
prima facie that of a common carrier, but that his
responsibility may be either enlarged or qualified by the terms of
the bill of lading, if there be one; and that the question, whether
the defendant is liable or not, is to be ascertained by this
document when it exists."
The principle of these cases establishes a liability against a
carrier for a loss by fire arising from other than a natural cause,
whether occurring on a steamboat accidentally, or communicated from
another vessel or from the shore; and the fact that fire produces
the motive power of the boat does not affect the case.
New J. S. N. Co. v. Merchants'
Bank, 6 How. 344,
47 U. S. 381;
Hale v. N.J. S. N. Co., 15 Conn. 539;
Singleton v.
Hilliard, 1 Strab. 203;
Gilmore v. Carman, 1 S. &
R. N. 279.
In this suit, a witness was introduced, who claims to have been
long familiar with the usages of the navigation and the river
insurance risks of the Mississippi, and competent to testify in
reference to the perils of that river. He says
"those are sinking by coming in collision with rocks, snags, or
other boats or vessels, and fire; that the most common form of
bills of lading contains the exceptions, perils of the river and
fire; but that in many instances the word fire is omitted, and he
has not known an instance where the want of that word has created a
difficulty in adjusting a loss, or was considered to give a claim
against a boat on account of a loss by fire."
The first inquiry
Page 60 U. S. 316
is whether this evidence is admissible. In mercantile contracts,
evidence is admissible to prove that the words in which the
particular contract is expressed, in the particular trade to which
the contract refers, are used in a peculiar sense, and different
from that which they ordinarily import, and to annex incidents to
written contracts, in respect to which they are silent, but which
both parties probably contemplated, because usual in such
contracts.
But although it is competent to explain what is ambiguous, and
to introduce what is omitted, because sanctioned by usage, it is
not competent to vary or contradict the terms of the contract. The
exceptions in the bills of lading under consideration have been in
use in policies of insurance and contracts of affreightment for a
long period, and have acquired a distinct signification in the
customs of merchants, and the opinions of professional men and
courts. It would be surprising if any particular or artificial
meaning was attached to them in the customs of the Mississippi
River, contrary to, or distinguishable from, that which existed
elsewhere in the community of shippers and merchants. In this case,
the evidence fails to establish any peculiar sense of these words,
as appropriate to the locality where the parties to this contract
reside and made their contract. The evidence rather serves to show
that the witness did not recognize the liability of a carrier, as
it exists in the common law, and was ready to acquit him of
responsibility for losses to which he did not contribute, by the
negligence or fault either of himself or his agents. In
Turney
v. Wilson, 7 Yerger 340 -- a case decided in the state from
which the shipments described in the bill were chiefly made --
evidence was offered to show there was an implied contract
recognized in the usages of shippers and merchants, which had
prevailed from the first settlement of the country, to exempt the
carrier from losses, except those proceeding from negligence or
dishonesty to explain or construe a bill of lading of the common
form. The court decided, that the dangers of the river were such as
could not have been prevented by human skill and foresight, and
were incident to river navigation. That all evidence was irrelevant
that did not show that the loss was occasioned by the act of God,
the enemies of the country, or dangers of the river; that the
custom could not affect or in anywise alter the written contract of
the parties, as contained in the bill of lading, as the language
had a definite legal meaning which this custom could not change. A
similar question arose in the case of the
Schooner
Reeside, 2 Sum. 568, where Justice Story condemns, in pointed
language, the habit of admitting loose and inconclusive usages and
customs
Page 60 U. S. 317
"to outweigh the well known and well settled principles of law."
And in
Rogers v. Mechanics' Insurance Co., 1 Story 601, he
denies the authority of a usage of a particular port, in a
particular trade, to limit or control or qualify the language of
mercantile contracts, such as a policy of insurance. A usage such
as is pleaded in this suit, if existing, must be notorious and
certain, and have been uniform in its application and long
established in practice. It must have been exhibited in the
transactions of the individuals and corporations concerned, in
conducting the business of shipments, transportation, and
insurance, through the Mississippi valley.
If the evidence had established that policies of insurance there
did not designate fire among the risks assumed; that the words
"perils of the river" were used to include that risk, and losses by
fire had been uniformly settled under that clause in the policy;
that contracts of affreightment had been made and losses adjusted
on the same conditions; that these usages had received the sanction
of professional and judicial opinion in the states bordering that
river -- the cause of the appellants would have presented different
considerations. The record contains nothing to exempt them from the
legal rule of liability, as established by the common law. Seven of
the bills of lading produced contain the exception, "perils of the
river and fire;" three others add to the perils of the river,
"unavoidable accidents;" and in these cases the circuit court
exonerated the appellants from responsibility.
The appellants further contend that the insurance company is not
subrogated to the claims of the shippers of the cotton, whose
losses have been adjusted on their policies of insurance; or, if
this is so, still their suit should have been at law, in the name
of the assured -- the remedy being adequate and complete. In
Randell v. Cochran, 1 Vesey Sr., 98, the chancellor
replied to a similar objection, "that the plaintiff had the
plainest equity that could be." The person originally sustaining
the loss was the owner; but, after satisfaction made to him, the
insurer. And in
White v. Dabinson, 14 Sim. 273, an insurer
enforced a lien on a judgment recovered by the assured for a loss,
where the loss had been partially settled by him, on the policy.
Monticello v.
Morrison, 17 How. 152. These cases also show that
an insurer may apply to equity whenever an impediment exists to the
exercise of his legal remedy in the name of the assured.
The bill discloses fifteen different contracts of affreightment,
of a similar character, which have been adjusted by the appellees,
and which form the subject of this suit.
They have been joined in the same bill, and much
inconvenience
Page 60 U. S. 318
and vexation have been prevented. Without further inquiry, we
think a sufficient ground for a resort to equity is disclosed.
Decree affirmed.