Where a general ship, employed in navigating the lakes, receives
goods under a contract of shipment corresponding in terms to the
usual bill of lading for the transportation of goods on inland
navigable waters, her liability must be determined by the rules of
law applicable to carriers of goods upon such inland waters.
A common carrier by water, as on land, is responsible for every
loss or damage, however occasioned, unless it happened by the act
of God or the public enemy,
Page 62 U. S. 8
or by some other cause or accident, without any fault or
negligence on the part of the carrier, and expressly excepted in
the bill of lading.
Amongst the duties imposed upon carriers by water, one is to see
that the vessel is provided with a competent and skillful
master.
The act of Congress, passed on the 3d of March, 1851, 9 Stat.
635, limiting the liability of ship owners, does not apply to the
present case.
After a vessel is stranded, there is still an obligation upon
the master to take all possible care of the cargo. His duties in
that respect are not varied by that event, and proof merely of
reasonable care and diligence will not excuse him from
liability.
Where a vessel put into Presque Isle at night, in a storm, upon
Lake Huron, the evidence does not justify this Court in adjudging
that the master could have kept on his course, nor in holding the
vessel responsible for an error in judgment in the master, in the
measures which he adopted after he had succeeded in entering the
harbor.
But after the vessel was stranded, he was guilty of culpable
negligence in not protecting the cargo with sufficient care, and in
returning home and allowing the cargo to remain in the vessel
during the remaining part of the winter, and until a late day in
the spring.
A master must not abandon his ship and cargo upon any grounds,
so far as the goods are concerned, when it is practicable for human
exertion, skill, and prudence, to save them from the impending
peril.
These two cases were appeals in admiralty from the district
court of the United States for the District of Wisconsin. Both
cases were founded upon the same facts, which are fully stated in
the opinion of the Court.
In the first case, that of Cordes, the district court decreed
that the libellant should recover $3,763.76, with costs; and in the
other case, that Sexton should recover $4,964.50, with costs. The
owners of the propeller appealed to this Court in both cases.
Page 62 U. S. 14
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Libels were filed in these cases at a special term of the
District Court of the United States begun and held at the City of
Milwaukee, on the first Monday of November, 1855. They are drawn in
the usual form of libels
in rem, and respectively allege a
breach of contract of affreightment. Both suits grew out of
contracts for the transportation of goods by the steam propeller
Niagara, on her last trip during the season of 1854, from
the port of Buffalo, in the State of New York, to Chicago, in the
State of Illinois. They were argued together in this Court, and it
was conceded at the argument, by the counsel on both sides, that
they depended substantially upon the same state of facts. All the
testimony respecting the liability of the steamer was first taken
and filed in the case last named, and was subsequently admitted and
read in evidence at the hearing in the other suit, under a
stipulation of the parties, and the pleadings are substantially the
same in both cases. On the part of the libellants, it is alleged,
among other things, to the effect that on or about the
twenty-eighth day of November, 1854, the libellants caused certain
goods, particularly described in the respective libels, to be
shipped in good order and condition on board the propeller
Niagara, to be transported from Buffalo to Milwaukee, in
the State of Wisconsin, and that the master, Hugh Mallon, received
the goods on board, and in consideration of certain freight, to be
paid in that behalf by the respective libellants, undertook and
promised to convey the goods from the port of shipment to the port
of destination, and there to deliver the goods, the dangers of
navigation, fire, and collision, only excepted, in like good order
and condition to the libellants or their respective agents.
And they further allege that the steamer shortly thereafter
departed on her voyage, but that the master, not regarding his
duty, nor his promise and undertaking, did not so convey the goods,
although no danger of navigation, fire, or collision, prevented him
from so doing, and that the goods, or a large portion of them,
through the mere carelessness, negligence, and
Page 62 U. S. 15
improper conduct, of the master, his mariners, or servants,
became wetted, heated, or stained, and greatly damaged, or wholly
lost to the libellants. Answers in the usual form of pleading were
duly filed in each case on the twenty-fourth day of May, 1855,
admitting the jurisdiction of the court, and setting up
substantially the same grounds of defense. They are alike in all
their material allegations, so far, at least, as respects the
questions discussed at the bar, and all the matters involved in the
judgment of the court. In both cases, the answers admit the
contract to transport the goods, as per bill of lading, the dangers
of navigation, fire, and collision excepted, and that certain
packages, under each of the contracts, were accordingly shipped on
board the steamer for that trip, leaving it to the libellants in
each case to make such proof of the kind, quantity, and value of
the goods, as they might be advised was material, and aver that the
steamer, when she departed on the voyage, on the twenty-ninth day
of November, 1854, was tight, stanch, seaworthy, and well manned,
and that her entire cargo was well, safely, and securely stowed.
And the respondents, denying every allegation in the libels, of
carelessness, negligence, and improper conduct, on the part of the
master and his mariners, aver the fact to be that they were
vigilant, competent, and skillful in the premises, and did what it
was their duty to do under the circumstances in which they were
placed. They admit also that a part of the cargo was damaged, but
allege and insist that the damage was occasioned by a danger of
navigation within the exception of the bill of lading, for which
they are not, and ought not in any manner to be held responsible.
And they further allege that the steamer was, by stress of weather,
compelled to make the harbor of Presque Isle, and by the snow and
the force of the storm and wind, which was very severe, the steamer
dragged her anchor, went ashore, and was dashed upon the beach,
from which cause, and the necessary detention of the goods on
board, the damage, whatever it is, occurred, and that in the month
of May, 1855, which was as soon thereafter as it was possible to
repair the steamer and for her to proceed on her voyage, the goods,
or so much of them as belonged to the respective libellants,
were
Page 62 U. S. 16
transported to Milwaukee, and there delivered to them, and were
by them respectively received, with a full knowledge of the damage,
if any, and of its cause, and with an agreement not only to share
the damage, but that the goods should be charged with and pay their
proportion of a general average of the losses thus occasioned, and
the respondents claim that the libellants, in each case, are liable
"for a large amount of the average and damage" to the steamer,
which they aver to be the sum of two thousand dollars.
This statement from the libels and answers embraces the
substance of the pleadings in both cases, so far as respects the
several matters discussed at the bar, and the real merits of the
controversy. Testimony was taken on both sides in the court below,
and after a full hearing a decree in each case was entered for the
libellants, and the respondents appealed to this Court. No
additional testimony has been taken since the appeal, and it seems
to be conceded that the rights of the parties depend chiefly upon
certain questions of fact to be determined from the evidence, which
is conflicting, and in some particulars very contradictory. That
remark, however, applies more particularly to that part of the
testimony which relates to the conduct of the master after the
steamer was stranded, and the means at his command to secure and
preserve the goods from damage. Many of the facts and circumstances
connected with the voyage, as well as those attending the disaster,
are involved in much less difficulty, and some of those most
material to be ascertained are satisfactorily proved, without any
contradiction whatever. On the one side, no question is made that
the goods were regularly shipped at Buffalo on the twenty-eighth
day of November, 1854; and on the other, it is admitted that in the
contract of shipment the dangers of navigation, fire, and
collision, were duly excepted in the usual form of such an
exception in bills of lading. All of the goods were shipped in good
order and condition, and were to be delivered at Milwaukee, as
alleged by the libellants. They consisted in the one case of
groceries, and in the other of dry goods, and it is conceded that
they were carefully and properly stowed. On the day following the
shipment, the
Niagara
Page 62 U. S. 17
left Buffalo, and proceeded on her intended voyage. She was a
steam propeller, of four hundred and fifty tons burden, and at the
time of her departure was a good, tight, stanch vessel, every way
suitable for the navigation in which she was engaged, and was well
furnished with ground tackle, including two anchors and two chains.
One of her anchors weighed fourteen hundred pounds, with an inch
and an eighth chain of sixty fathoms, and the other weighed seven
hundred pounds, with a chain of the usual size and length. Her
whole company consisted of twenty-two men, constituting a full
complement of officers and crew for the voyage in a steamer of that
description. Having proceeded on the usual route for that voyage,
she arrived in Lake Huron on the second day of December, at four
o'clock in the morning, in perfect safety, and crossed Saginaw Bay
in the afternoon of the same day. About eight o'clock in the
evening of that day, it commenced snowing, with a light wind, which
by twelve o'clock at night freshened to a gale, and the storm
continued without any abatement, blowing a heavy gale from a
northeasterly direction, or east-northeast, till the day after the
steamer was stranded.
After crossing Saginaw Bay, however, she continued on her
regular course, and made Thunder Bay light at one o'clock, and
proceeding onward on her voyage, arrived off Presque Isle, and made
the light at that place at four o'clock in the morning, without
having suffered any damage or met with any difficulty except that
the master testifies that she rolled heavily, and that for a half
or three-quarters of an hour before he made the light, he had to
keep her off her course two points, to ease her in the sea. Her
course from Thunder Bay had been north-northwest for a short time,
then west by north, and then northwest, and the mate of the steamer
testifies that when they first saw Presque Isle light, the steamer
was a mile or two east of the light, and was in the usual course.
At that time she was in no want either of wood or water, and it
does not appear that she was in any worse condition to proceed on
the voyage, unless prevented by the storm, than at the moment when
she left the place of her departure. Her cargo was a general
assortment of merchandise, consisting of teas, sugars, coffee,
fish,
Page 62 U. S. 18
liquors, molasses, crates of crockery, bales of sheeting, boxes
of dry goods, and various other articles, specified in the record.
All of the liquors, molasses, and some of the boxes, were stowed on
the ground tier in the lower hold. Heavy goods were placed at the
bottom, and light goods on top, and the hold was full, and battened
down. Most of the light goods, such as boxes of merchandise, teas,
sugar in barrels, and bales of sheeting, were on deck, and there
were some willow wagons on the hurricane deck. None of her deck
load had been washed away or injured, and it does not appear that
it had been in any manner displaced or thrown into disorder by the
rolling of the vessel.
These considerations tend strongly to show that there could not
have been any urgent necessity to change the course of the steamer
on account of the violence of the storm or the motion of the
vessel, and, consequently, affect the credit of the master, and
corroborate the statement of the mate that, at the time the light
was discovered, the steamer was pursuing her usual route. Both the
master and the mate were on deck when they made the light, and the
master gave the order to run into Presque Isle. In entering the
harbor, they steered west-southwest, and then doubled inside of a
small shoal round to the southeast, in order to get to the pier.
What purpose was to be accomplished by getting to the pier, it is
not easy to perceive, as the mate testifies that they knew that the
sea was so heavy that the steamer could not lie at the dock. They,
however, came round to the southeast, and so near to the pier that
the mate says he could see the snow on the beach, and then let go
the large anchor, and the wind immediately caught the steamer on
the larboard bow, and she commenced dragging the anchor. When they
found that the steamer dragged, and that there was danger that she
would go ashore, instead of casting the other anchor, their first
endeavor was to get rid of the one already cast, in order, if
possible, to work her off, and make another effort to get up to the
dock, and finding that they could not heave the chain with the
windlass, their next effort was to slip it; and while they were
endeavoring to unshackle the chain, the steamer struck and went on
to the beach stern first, and
Page 62 U. S. 19
immediately swung round broadside to the shore. No attempt was
made to let go the small anchor, although it was hanging at the
bow, and the mate admits that the steamer dragged more than a
quarter of a mile before she struck. They presently tried the
pumps, and it was found that she did not leak. Shortly after, she
commenced pounding, and it was then ascertained that she was making
water freely, when they started the engine pump, but it choked with
sand, and they were obliged to desist. At the place where the
steamer lay the water was seven or eight feet deep, and she filled
to the level of the water outside in two or three hours, so that
the water in the hold was four or five feet deep above the top of
the keelson. It was about five o'clock in the morning of the third
of December, 1854, that the steamer went on to the beach, and the
master and all hands remained on board till ten o'clock in the
forenoon, when he and the mate went on shore for the purpose, as he
testifies, of ascertaining whether there were any facilities for
storing the goods, and whether it would be possible to unload the
steamer, and get her off. When he got on shore, he found the
steamer
Plymouth, bound down the lake, lying there,
fastened at the dock, she having touched at Presque Isle for wood
four or five hours before the arrival of the
Niagara, and
remaining there on account of the storm. Having made certain
inquiries of the residents, and consulted with the master of the
Plymouth, he came to the conclusion that it was the safest
way to leave the goods on board, as more of them, in his judgment,
would be protected in that mode than by removing them on shore; and
on the morning of the sixth of December, the master, other
officers, and all the crew of the
Niagara, except three,
took passage in the
Plymouth, leaving the watchman,
wheelsman, and porter, in charge of the steamer, with the hatches
fastened down, and the goods in the condition in which they were
when the steamer was stranded. During the night of the fourth of
December, the storm subsided; but the following day was very cold,
so that the steamers were frozen in, and persons walked on the ice
from the pier to the place were the
Niagara lay, which was
more than a half mile. It moderated, however, during the night, and
on
Page 62 U. S. 20
the following morning the ice went out of the harbor, and two
other steamers, the
Republic and
Kentucky, came
in before the
Plymouth left, and the former took the place
of the
Plymouth at the dock after she started on her
voyage down the lake. Several witnesses testify -- and among the
number the master of the
Plymouth -- that the sixth of
December, the day he left, was a fine day, although, he says, there
was so much ice about his boat where she lay at the dock that he
had to cut her out in the morning before he started.
One of the witnesses for the libellants, who resides at Presque
Isle, testifies that after the
Plymouth left, it was
clear, and made ice, but did not blow, and that not long after,
there was a thaw which continued till the thirteenth of January,
and that after the thaw there were two or three weeks of very nice
weather. Navigation, however, closed in a few days after the
Plymouth left, and the
Niagara remained on the
beach, where she was stranded, until the mate, who is now the
master of the
Niagara, returned to Presque Isle on the
twenty-seventh day of April, 1855. When he returned, he found her
where he left her, in charge of the watchman. He immediately pumped
her out with a steam pump, according to his account, and lightened
her off with a steamboat, and, after she was lightened, got the
steamboat to take her up to the dock, where he removed the residue
of the goods, and then took her to Detroit and had her repaired.
After she was repaired, he returned to Presque Isle in the month of
May, 1855, and conveyed the goods, or so much of them as had not
been destroyed, to the place of destination. Some of the goods were
in good condition or were slightly injured, while others were
greatly damaged or wholly worthless. Those stowed below had
remained entirely without ventilation from December to March, and
then the hatch at midships only had been opened. They were heated,
discolored, and stained, and one of the witnesses testifies that
sugar, coffee, and dried fruit were all soaked together, and that
the water pumped up was dark, exhibiting the appearance of the
soakings of coffee and codfish, and that the goods had the
offensive smell of dead water. They were taken out about the first
of May, so that those stowed in the
Page 62 U. S. 21
lower hold, not more than four or five feet above the keelson,
had been submerged in bilge water for nearly five months, and some
of those above the water had been moistened by the dampness and
become moldy. Damages to the amount of three thousand seven hundred
and sixty-three dollars and seventy-six cents were allowed by the
district judge, in the case first named, and in the other, four
thousand nine hundred and sixty-four dollars and thirty cents, and
it is not pretended in the argument that the respective amounts
were either extravagant or unreasonable. It is not upon any such
ground that the appellants seek to reverse the respective decrees
in the court below. They deny that they are liable at all for any
amount, and set up the first exception in the contract of shipment
or bill of lading, and their counsel insist upon the following
propositions:
I. That the damage to the goods resulting from the stranding of
the steamer was wholly occasioned by the dangers of navigation, the
risk of which was not taken by the master or owners of the
steamer.
II. That after the
Niagara was stranded and filled with
water, and disabled from proceeding on her voyage, the appellants
were responsible only for the ultimate delivery of the goods, and
for reasonable care in preserving them from the effect of storms,
bad air, leakage, and embezzlement.
III. That the master, after the steamer was stranded, and the
goods wetted, became and was the agent of the shippers of the goods
as well as of the owners of the vessel, and as such, under the
circumstances of this case, is responsible only for due and proper
care and diligence, and that it cannot be successfully contended,
from the evidence, that such care and diligence were not
exercised.
These propositions, whether taken separately or collectively,
necessarily involve mixed questions of law and fact, which in a
case like the present must be determined by the court, acting
instead of a jury, to find the facts, and as a court to determine
the law. Such propositions, therefore, must be considered in
connection with all the legal evidence exhibited in the record, and
their accuracy must be tested by the true state of
Page 62 U. S. 22
the facts as found by the court from the evidence, and by the
rules of law applicable to that state of the case. According to the
admitted or undisputed facts of the case, the
Niagara was
enrolled and licensed for the coasting trade, and was employed by
the owners in transporting goods, under contracts for freight, upon
navigable waters between ports and places in different states, and
at the time of the disaster she had a full cargo of merchandise, of
various descriptions, on board, consigned to merchants or parties
residing either at her port of destination or at Milwaukee, and
other intermediate ports or places along the course of her voyage.
She was a general ship, laden with goods to be transported for
hire, and the goods in question having been received and taken
charge of, as goods under a contract of shipment, corresponding in
terms to the usual bill of lading for the transportation of goods
on inland navigable waters, the question of liability in this case
must be determined by the rules of law applicable to carriers of
goods upon such inland waters. A common carrier is one who
undertakes for hire to transport the goods of those who may choose
to employ him from place to place. He is, in general, bound to take
the goods of all who offer, unless his complement for the trip is
full, or the goods be of such a kind as to be liable to
extraordinary danger, or such as he is unaccustomed to convey. In
all cases where there is no special agreement to the contrary, he
is entitled to demand the price of carriage before he receives the
goods; and if not paid, he may refuse to receive them; but if he
take charge of them for transportation, the nonpayment of the price
of carriage in advance will not discharge, affect, or lessen his
liability as a carrier in the case, and he may afterwards recover
the price of the service performed. When he receives the goods, it
is his duty to take all possible care of them in their passage,
make due transport and safe and right delivery of them at the time
agreed upon, or, in the absence of any stipulation in that behalf,
within a reasonable time. Common carriers are usually described as
of two kinds, namely, carriers by land and carriers by water. At
common law, a carrier by land is in the nature of an insurer, and
is bound to keep and carry the goods entrusted to his care safely,
and is liable for all
Page 62 U. S. 23
losses, and in all events, unless he can prove that the loss
happened from the act of God, or the public enemy, or by the act of
the owner of the goods.
Common carriers by water, like common carriers by land, in the
absence of any legislative provisions prescribing a different rule,
are also, in general, insurers, and liable in all events, and for
every loss or damage, however occasioned, unless it happened by the
act of God, or the public enemy, or by some other cause or
accident, without any fault or negligence on the part of the
carrier, and expressly excepted in the bill of lading. A carrier's
first duty, and one that is implied by law, when he is engaged in
transporting goods by water, is to provide a seaworthy vessel,
tight and stanch, and well furnished with suitable tackle, sails,
or motive power, as the case may be, and furniture necessary for
the voyage. She must also be provided with a crew, adequate in
number and sufficient and competent for the voyage, with reference
to its length and other particulars, and with a competent and
skillful master, of sound judgment and discretion; and, in general,
especially in steamships and vessels of the larger size, with some
person of sufficient ability and experience to supply his place
temporarily, at least, in case of his sickness or physical
disqualification. Owners must see to it that the master is
qualified for his situation, as they are, in general, in respect to
goods transported for hire, responsible for his acts and
negligence. He must take care to stow and arrange the cargo, so
that the different goods may not be injured by each other, or by
the motion of the vessel, or its leakage, unless, by agreement,
this duty is to be performed by persons employed by the shipper. In
the absence of any special agreement, his duty extends to all that
relates to the lading, as well as the transportation and delivery
of the goods, and for the faithful performance of those duties the
ship is liable, as well as the master and owners. A clean bill of
lading, in general, imports, unless the contrary appear on its
face, that the goods are to be safely and properly secured under
deck. Fland. on Ship., sec. 192.
In the case of a parol shipment, the master is allowed to show a
local custom to carry the goods on deck in a particular trade.
Page 62 U. S. 24
It must, however, be a custom so generally known and recognized,
that a fair presumption arises that the parties in entering into
the contract agreed that their rights and duties should be
regulated by it. Having received the goods for transportation, in
the absence of any stipulation as to the period of sailing, the
master must commence the voyage within a reasonable time, without
delay, and as soon as the wind, weather, and tide, will permit.
After having set sail, he must proceed on the voyage in the direct,
shortest, and usual route, to the port of delivery, without
unnecessary deviation, unless there has been an express contract as
to the course to be pursued, and where the vessel is destined for
several ports and places, the master should proceed to them in the
order in which they are usually visited, or that designed by the
contract, or, in certain cases, by the advertisement relating to
the particular voyage. A deviation from the direct route may be
excusable if rendered necessary to execute repairs for the
preservation of the ship, or the prosecution of the voyage, or to
avoid a storm, or an enemy, or pirates, or for the purpose of
obtaining necessary supplies of water and provisions, or, in the
case of a steamer, to obtain necessary supplies of wood or coal for
the prosecution of the voyage, or for the purpose of assisting
another vessel in distress.
As agent of the owner, the master is bound to carry the goods to
their place of destination in his own ship, unless he is prevented
from so doing by some cause arising from irresistible force, over
which he has no control, and which cannot be guarded against by the
watchful exertions of human skill and prudence. When the vessel is
wrecked or otherwise disabled in the course of the voyage, and
cannot be repaired without too great delay and expense, he is at
liberty to transship the goods and send them forward so as to earn
the whole freight; and if another vessel can be had in the same or
a contiguous port, or at one within a reasonable distance, it
becomes his duty under such circumstances to procure it and
transport the goods to their place of destination, and in that
event he is entitled to charge the goods with the increased freight
arising from the hire of the vessel so procured. That rule,
however,
Page 62 U. S. 25
is not obligatory in cases where the goods are not perishable,
provided the ship can be repaired in a reasonable time. In that
state of the case he may, if he deems it best, retain the goods
until the repairs are made, and forward them in his own vessel; and
upon the same principle, and for the same end, if he have no means
to transship the goods, it is his duty to repair his own vessel,
when capable of being repaired, provided it can be done within a
reasonable time, and he has the means at his command; and if not,
and the means cannot be obtained from the owner, or upon the
security of the ship, he may sell a part, or hypothecate the whole,
and apply the proceeds to execute the repairs, in order that he may
be enabled to resume the voyage and carry the goods, or the
residue, as the case may be, to the place of destination, and he is
not entitled to recover for freight if he refuses to transship the
goods, unless he repairs his own vessel within a reasonable time,
and carries them on to the place of delivery. Most of the rules of
law prescribing the duties of a carrier for hire, and regulating
the manner of their exercise, have existed for centuries, and they
cannot be modified or relaxed except by the interposition of the
legislative power of the Constitution. Time and experience have
shown their value and demonstrated their utility and justice, and
they ought not and cannot be changed by the judiciary. Some new and
important provisions have been introduced into the law of carriers
by water, by the act of the third of March, 1851, entitled "An act
to limit the liability of shipowners." Owners of ships under that
act are not held liable for loss or damage to the cargo by reason
of fire happening to or on board the vessel, unless the fire was
caused by the design or neglect of such owner, except in cases
where there is a special contract between the owner and the
shipper, whereby the former assumes that risk. They are declared
not liable as carriers for precious metals, precious stones, or
jewels, or for the bills of any bank or public body, unless at the
time of their lading a note in writing of their true character and
value be given to the owner or his agent, and the same be entered
on the bill of lading; and in no case where that act applies will
the owner be liable for the articles therein enumerated beyond the
amount
Page 62 U. S. 26
so notified and entered. It contains other provisions also of
very great practical importance, and among the number the
following: that for embezzlement, loss, damage, or injury by
collision, or for any act, matter, or thing, loss, damage, or
forfeiture done, occasioned, or incurred, without the privity or
knowledge of the owner, his liability shall in no case exceed the
amount or value of his interest in the vessel and the freight then
pending. No part of the act, however, applies to the owner of any
canal boat, barge, or lighter, or to any vessel of any description
whatsoever used in rivers or inland navigation.
A question may arise, whether the lakes bordering on a foreign
jurisdiction are or are not excluded from the operation of the act
under the term inland navigation; but it is not necessary at the
present time to determine or consider that question, as the first
exception in the contract of shipment is the only one set up in
this case, and there is no pretense that there has been any
transfer of the steamer under the fourth section of the act for the
benefit of the libellants.
Carriers by water are liable at common law, and independently of
any statutory provision, for losses arising from the acts or
negligence of others, to the same extent and upon the same
principles as carriers by land -- that is to say, they are in the
nature of insurers, and are liable, as before remarked, in all
events, and for any loss, however sustained, unless it happen from
the act of God, or the public enemy, or by the act of the shipper,
or from some other cause or accident expressly excepted in the bill
of lading. Duties remain to be performed by the owner, or the
master as the agent of the owner, after the vessel is wrecked or
disabled and after he has ascertained that he can neither procure
another vessel nor repair his own, and those too of a very
important character, arising immediately out of his original
undertaking to carry the goods safely to their place of
destination. His obligation to take all possible care of the goods
still continues, and is by no means discharged or lessened, while
it appears that the goods have not perished with the wreck, and
certainly not where, as in this case, the vessel is only stranded
on the beach. Such disasters are of frequent occurrence along the
seacoast in certain seasons
Page 62 U. S. 27
of the year, as well as on the lakes, and it cannot for a moment
be admitted that the duties and liabilities of a carrier or master
are varied, or in any manner lessened, by the happening of such an
event. Safe custody is as much the duty of a carrier as conveyance
and delivery, and when he is unable to carry the goods forward to
their place of destination, from causes which he did not produce,
and over which he has no control, as by the stranding of the
vessel, he is still bound by the original obligation to take all
possible care of the goods, and is responsible for every loss or
injury which might have been prevented by human foresight, skill,
and prudence. An effort was made by able counsel, in
King v.
Shepherd, 3 Story C.C. 358, to maintain the proposition,
assumed by the respondents in this case, that the duties of a
carrier after the ship was wrecked or stranded were varied, and
therefore that he was exempted from all liability, except for
reasonable diligence and care in his endeavors to save the
property. Judge Story refused to sanction the doctrine, and held
that his obligations, liabilities, and duties, as a common carrier,
still continued, and that he was bound to show that no human
diligence, skill, or care, could save the property from being lost
by the disaster. Anything short of that requirement would be
inconsistent with the nature of the original undertaking, and the
meaning of the contract, as universally understood in courts of
justice. Admit the proposition, and it is no longer true that where
there is no provision in the contract of affreightment varying the
liability of the carrier, he cannot relieve himself from liability
for injuries to goods entrusted to his care except by proving that
it was the result of some natural and inevitable necessity superior
to all human agency or of a force exerted by a public enemy. Kent,
Chief Justice, said, in
Elliott v. Russell, 10 Johns. 7,
decided in 1813, that it has long been settled that a common
carrier warrants the delivery of the goods in all but the excepted
cases of the act of God and public enemies, and there is no
distinction between a carrier by land and a carrier by water; and
the same learned judge also held that the character, duty, and
responsibility of a carrier continues to attach to a master as long
as he has charge of the goods. A master,
Page 62 U. S. 28
says a learned commentator, should always bear in mind that it
is his duty to convey the cargo to its place of destination. This
is the purpose for which he has been entrusted with it, and this
purpose he is bound to accomplish by every reasonable and
practicable method. Every act that is not properly and strictly in
furtherance of this duty is an act for which both he and his owners
may be made responsible. His duties as carrier are not ended until
the goods are delivered at their place of destination, or are
returned to the possession of the shipper, or kept safely until the
shipper can resume their possession, or they are otherwise disposed
of according to law.
King v. Shepherd, 3 Story C.C. 349;
Abbot on Ship., 8th ed. Perk., 478. These authorities are
sufficient, it is believed, to demonstrate the proposition, that
where a loss or damage is shown, it is incumbent upon the carrier
to bring it within the excepted peril in order to discharge himself
from responsibility. It is not sufficient, without more, to show
that the vessel was stranded, to bring the goods within the
exception set up in this case. Had the goods perished with the
wreck, it would be clear that the loss was the immediate
consequence of the stranding of the vessel, and assuming that the
disaster to the vessel was the result of the excepted peril, or of
some natural and inevitable accident, then the carrier would be
discharged. All the evidence, however, in this case, shows the fact
to be otherwise; that the goods did not perish at the time the
steamer was stranded; and the damage having since occurred, the
rule of law to be ascertained is the one applicable in cases where
the injury complained of arises subsequently to the disaster to the
vessel. Such interruptions to a voyage are of frequent occurrence,
and the rule of law is just and reasonable which holds that the
master is bound to the utmost exertions in his power to save the
goods from the impending peril, as it is no more than a prudent man
would do under like circumstances. In great dangers, great care is
the ordinary care of prudent men, and in great emergencies, prudent
men employ their best exertions; so that the difference in the rule
contended for, and the one here laid down, is much less than at
first appears. Nevertheless there is a difference, and in a
question of so much
Page 62 U. S. 29
practical importance it is necessary to adhere strictly to the
correct rule. Losses arising from the dangers of navigation within
the meaning of the exception set up in this case are not such as
are in any degree produced from the intervention of man. They are
such as happen in spite of human exertions, and which cannot be
prevented by human skill and prudence. When such efforts fail to
save the goods from the excepted peril, the ultimate loss and
damage in judgment of law results from the first cause, upon the
ground that when human exertions are insufficient to ward off the
consequences, the excepted peril may be regarded as continuing its
operation. Such, it is believed, is the nature of the contract
between a carrier and shipper so far as it becomes necessary to
examine it in the cases under consideration. Carriers may be
answerable for the goods, although the actual blame is imputed to
them, and after the damage is established, the burden lies upon the
respondents to show that it was occasioned by one of the perils
from which they are exempted in the contract of shipment or bill of
lading.
Clark v.
Barnwell, 12 How. 272;
Rich v.
Lambert, 12 How. 347; Chitt. on Carriers 242; Story
on Bail, secs. 528, 529; 3 Kent Com. 213; 1 Smith Lead.Cases 313;
Choteaux v. Leech, 18 Pa. 233; Fland. on Ship., sec. 257;
Marvin on Wr. and Salv. 21; Parsons' Mer.L. 348; Smith's Mer.L., 3d
ed., 386
Applying these principles of law in the consideration of the
case, we will proceed to a brief review of the evidence, in
connection with that already given, bearing upon the questions of
fact presented for decision. It has already appeared that the
steamer made the light at Presque Isle on the third day of
December, 1854, at four o'clock in the morning. At that time she
was on the usual course and was heading northwest. She had met with
no difficulty up to that time, and was tight, stanch, and strong,
and in no want either of wood or water. Her master says, however,
that he found it would be a great risk to haul her off to get round
the point, doubtless referring to his previous statement that he
had kept her off her course to ease her in the sea. She was then
sailing northwest, and her course up to the straits would have
been, as the witnesses
Page 62 U. S. 30
say, either west-northwest or northwest by west half west, and
there is no difference of opinion among them that the course was
direct and the wind was a fair wind for steamers, and one witness
says that in a conversation with the mate while he was at Presque
Isle, he heard him say that they need not have entered the harbor.
All or nearly all the witnesses agree that there is no difficulty
in entering that harbor in the daytime, and that the anchorage,
though rather limited in space, is safe and quite good just
northwesterly of the end of the pier and out towards the
lighthouse, and that the harbor affords a good shelter to vessels
in a storm, except when the wind is blowing from a northeasterly
direction or east-northeast, and then that its course is directly
into the harbor, which fact must have been well known to the master
and mate at the time they decided to make the attempt. Many of the
witnesses say that it is more difficult to go in during the night,
and several testify positively that it is dangerous, and some of
the more experienced navigators say they would not risk the attempt
in a dark night. One witness, the master of the
Plymouth,
called by the respondents, testified that the steamer did not come
right in; that she broached to so near the mouth of the harbor,
that she was detained at least a quarter of an hour. She, however,
succeeded in entering the harbor, and cast her anchor as before
stated. Four experienced navigators testify to the effect that she
should have kept on her course; that it was not proper to enter the
harbor. On the other side, one witness says that whether it was
good seamanship or not would depend upon the position of the
vessel, and that if she was near in, he thinks it was prudent, and
that he should have entered. Another says that if he had considered
either vessel or cargo in danger, he should have gone in by all
means, and the mate says that they concluded that it was better to
go in. One witness, called by the libellants, says he heard the
mate say after the disaster that it was unnecessary.
These are the principal facts bearing upon the question whether
the master exercised a sound judgment and discretion in entering
the harbor. Most of the facts in evidence respecting the acts of
the master after he entered the harbor, as they
Page 62 U. S. 31
appear to the Court, have already been stated and need not be
repeated. Experts were called and examined upon the question
whether the master evinced proper skill and judgment in the attempt
he made to anchor, and on that point three or four witnesses, who
are experienced navigators, were called and examined by the
libellants. They testify to the effect that a master of a steamer
about to enter a harbor under the circumstances of this case ought
to have both anchors ready, so that if one will not hold the
vessel, he can cast the other; and they express the opinion that
such precautionary steps are no more than ordinary prudence, and
one of them says that it is customary to let go the small anchor
first, and if that will not hold, then to let go the large anchor.
On the other side, the mate of the steamer testifies that they had
not time to let go the small anchor, and another witness expresses
the opinion that if the large anchor and the engine would not hold,
then there was nothing that could be done, and the master of the
Plymouth says that he knows of nothing else that could
have been done except to cast the anchor.
Numerous witnesses were examined on the question whether it was
practicable to have removed the goods and stored them, and whether,
if it had been done, it would have afforded any better protection
to the goods. On this point the testimony of the witnesses is very
conflicting. All that can be done is to state the principal facts
as they appear to the Court.
Nineteen men were residing at Presque Isle at the time of the
disaster, mostly temporary residents, in the employment of
Frederick Barnham, a witness for the respondents. There were four
dwelling houses there in which people lived, and two unoccupied,
and there were two barns and a vacant shop, all or nearly all the
dwellings were built of logs and were rudely finished. Three of
those dwellings were within a half mile of the place where the
steamer lay, which was within a quarter of a mile of a road
extending round on the beach from the pier where the
Plymouth lay with her officers and crew on board. Several
days previously, the steamer
Grand Turk had been wrecked,
twelve miles distant from Presque Isle, and her officers and crew
were there, consisting in all of
Page 62 U. S. 32
eight or nine men. There was a large scow in the harbor, in good
order, anchored near the pier and not in use, which several
witnesses testify might have been obtained to lighten the steamer,
and one witness testifies that the same scow was used by the mate
in the spring following to carry the goods from the steamer to the
dock before she was taken off by the tug. Nine pumps, such as are
used on board vessels and brought up to use on the other disabled
steamer, were lying on the beach within a half mile. All the
witnesses agree that the master of the
Niagara never
applied to anyone of them for any assistance, either in respect to
the goods or the steamer, and the mate admits that they had made up
their minds to leave the evening of the day after the disaster.
Some of the witnesses offered assistance, and it was declined.
Courtwright testifies that he heard a conversation between the
master and the mate, in presence of fifteen or twenty persons, in
reference to taking out the cargo of the steamer. The mate said to
the master that they could get the goods out of the steamer and get
her alongside of the dock, to which the master replied that it was
too late in the season to do anything with her; that he was bound
to go home; that he would not stop there for the steamer and all
that was in her. Other declarations of the master, equally
expressive of his determination to return home, are also in
evidence, and being a part of the
res gestae, are clearly
admissible to explain the motives of the master in connection with
his acts. Many witnesses on the side of the respondents express the
opinion that the goods could not have been removed; and an equal or
greater number called by the libellants express a contrary opinion,
and suggest various modes by which it might have been accomplished
in a very short time. Such opinions, however, cannot have much
weight in determining the question. One important fact is clearly
proved -- namely that the ice went out of the harbor the night
before the
Plymouth left, and it was mild weather after
that, for the most part, till near the middle of January, 1855.
Our conclusions upon these several questions may be briefly
stated. In respect to the one first presented, it is proper to
remark that it depends upon the proof whether the act of the
Page 62 U. S. 33
master, in seeking shelter in the harbor, was reasonably
necessary, and if it was, then he is not in fault on that account.
None of the circumstances exhibit such clear and decisive
indications as would justify the conclusion that he did not think
at the time that it was the most expedient course to be pursued.
That he was without much experience as a master of a steamer of
this description, does not seem to be denied; and it is equally
clear that he had a strong preference for a sailing vessel, as is
made evident by his own remarks, as well as in another fact proved
in the case, that he has resumed his more favorite employment upon
the water, for which, perhaps, he is better qualified than for the
one in which he was then engaged. He says, in effect, that he found
it would be dangerous to proceed on the voyage, and the mate says
they concluded that it would be better to go into Presque Isle; and
on their own opinions thus expressed, and the proofs as to the
violence of the storm, his vindication mainly rests. Strong doubts
are entertained whether he acted wisely in departing from the
course of the voyage, and yet the evidence is not so full and clear
in the case as to induce the court to place the decision upon that
ground. Whatever dangers there were in entering the harbor he
succeeded in surmounting, and he cannot be held responsible for any
accident which did not happen. masters have a right, and oftentimes
it is their duty, to seek shelter from a storm, and the fact that
it would have been better to have kept on the course may be more
apparent now than it could have been to anyone at the time.
Something must be deferred to the judgment and discretion of the
master on such occasions, so that although the circumstances tend
strongly to prove that he misjudged, or was wanting in that
fearless, prudent energy which he ought to have displayed, still
they are not of that decisive character which incline the Court to
make the decision turn upon that ground, and the same remarks also
apply to his acts and endeavors to anchor the steamer after he
entered the harbor. Knowing, as he did, that the wind was blowing
directly into the harbor, it is difficult to see why it was that he
brought the steamer round to the position in the wind, so as to
expose her to the danger which finally
Page 62 U. S. 34
overcame his efforts to accomplish the purpose for which he says
he sought the harbor. He knew the course of the wind and the
difficulties of the undertaking before he entered, and ought to
have been prepared to encounter them with the best precautions in
his power to make. When he found that the anchor dragged, a great
majority of the witnesses say he ought to have let go the other.
His own description of what took place on the deck of the steamer
after she entered the harbor, as well as that given by the mate,
evinces an indecision and want of energy quite unsuited to the
emergency in which he was placed, and tends strongly to show that
he was wanting in the proper qualities of a skillful and well
instructed master. These considerations create strong doubts in the
mind of the Court whether the respondents are faultless in this
particular, and yet the Court is disinclined to place the decision
entirely on that ground, as several witnesses of some nautical
skill have testified that they are unable to see that anything more
could have been done.
On the remaining ground of complaints against the master, we are
all of the opinion that he was guilty of gross negligence. His
steamer lay within ten or fifteen rods of the beach, and within a
little more than a half mile of the settlement, the number of whose
residents was temporarily augmented by the presence of the officers
and crew of the steamer
Plymouth and those of the
Grand Turk, and yet all he did, so far as appears, to
secure or recover the large amount of property he had on board was
to go on shore, consult with one or more of the residents, advise
with the master of the
Plymouth, and then came to the
conclusion that nothing could be done, and that it was best to
leave the goods on board under the charge of three of his crew. He
remained, however, for two or three days, until the storm had
subsided and the weather had moderated, and after two other
steamers had arrived in the harbor he took passage on the
Plymouth and returned home without having made any effort
himself, or requested the aid of others, either to get off the
steamer, or to remove and store the goods. We are satisfied from
the evidence that the goods might have been removed between the
time he left and the middle of January,
Page 62 U. S. 35
and we are not satisfied that it could not have been done or
successfully commenced during the time he remained in Presque Isle.
A removal of a part would have enabled him to protect the residue
on board, and there is no sufficient ground from the evidence to
conclude that he would have encountered any serious difficulty in
finding places enough for storing to have enabled him to remove
from the steamer all of that class of goods exposed to damage and
store them on shore. At that time, the goods had not received any
considerable injury, and most of them in all probability none
whatever. Prompt attention would have saved the property and
protected the shipper from loss. It must not be understood that a
master can abandon his ship and cargo upon any such grounds as are
proved by the evidence in this case, or indeed upon any other, so
far as the goods are concerned, when it is practicable for human
exertions, skill, and prudence, to save them from the impending
peril.
This view of the evidence renders it unnecessary to consider the
other grounds of defense set up by the respondents.
The decrees, therefore, of the district court in the respective
cases are
Affirmed with costs in each case for the
libellants.