1. The first section of the act of Congress of March 3, 1851,
entitled "An act to limit the liability of shipowners and for other
purposes," exempts the owners of vessels in cases of loss by fire
from liability for the negligence of their officers or agents in
which the owners have not directly participated.
2. The proviso to that act allowing parties to make their own
contracts in regard to the liabilities of the owners refers to
express contracts.
3. A local custom that shipowners shall be liable in such cases
for the negligence of their agents is not a good custom, being
directly opposed to the statute.
"An act to
limit the liability of ship
owners
and for other purposes," passed by Congress March 3, 1851,
[
Footnote 1] enacts by its
first section that no
owner or owners of any ship or
vessel shall be liable to answer for any loss or damage which may
happen by reason or means of
fire on board said ship or
vessel "unless such fire is caused by the
design or neglect of
such owner or owners." The same section contains a proviso
that "nothing in the act shall prevent the parties from making such
contract as they please, extending or limiting the liability of
such owner." And the
sixth section enacts that
"Nothing in the preceding sections shall be construed to take
away or affect the remedy to which any party may be entitled
against the
master, officers, or
mariners of such
vessel for negligence, fraud, or other malversation."
Another that the act shall not apply to the owners of vessels
engaged in "
inland navigation."
With this act in force, Walker & Co. shipped at Chicago a
cargo of grain on a vessel belonging to the Western Transportation
Company, common carriers upon our
northern lakes, to be
delivered at Buffalo. The vessel caught fire and the grain was
burnt up. Walker & Co. accordingly filed a libel
in
personam against the company in the District Court for
Northern Illinois for the value of the wheat.
The company, admitting the receipt of the wheat on board the
vessel and the failure to deliver, set up three defenses:
Page 70 U. S. 151
1. That the wheat was destroyed by fire which was not caused by
the "design or neglect" of the defendant, this article of the
defense being obviously framed so as to profit by the act of
1851.
2. That the wheat was received on board with reference to the
terms of the bills of lading usually given by the respondent, which
contained an exception of the dangers of navigation, fire, and
collision.
3. That the wheat was received on board with the understanding
that the usual bill of lading, common in that trade, should be
given and accepted as the contract between the parties, and the
article averred that such bill of lading contained a clause
exempting the shipowner from liability for loss by "perils of
navigation, perils of the sea, and other equivalent words," and
that by usage and custom, those words included loss by fire unless
the fire had been caused by the negligence or misconduct of the
owner or his servants or agents. It then averred that the fire did
not occur through the negligence or misconduct of the respondent or
its servants or agents.
All three of the defenses were excepted to in the district court
in 1856; and the case being submitted there without argument, the
libel, without any rulings having been made on the exceptions, was
dismissed.
In 1860, this Court, in
Moore v. American Transportation
Co., [
Footnote 2] decided
that notwithstanding "inland navigation" was excepted in it, the
act of 1851 applied to vessels navigating our northern lakes. The
libellants, then perceiving the advantage to be gained in the face
of the act by the admission impliedly made on the other side that
the cargo had been shipped and received with an understanding that
if fire occurred through the negligence of the owner's
servants
or agents, the owner should be liable,
amended their
libel, admitting in form that such was the understanding and
contract on both sides -- meaning, now, of course, to place their
case -- as they did afterwards -- on the fact that
Page 70 U. S. 152
the fire
had been caused by the negligence or
misconduct of the owner's
servants or agents.
The case was then heard in the circuit court on new testimony
taken by both sides as to such negligence and misconduct. No proof,
however, was given in either court as to the alleged understanding,
custom, or contract, and this rested on the allegation of the
answer and the admission of the amended answer made in the way
already stated.
The circuit court affirmed the decree of the district court
dismissing the libel, and the case being now here on appeal, two
questions were considered:
1. Whether the owner of a vessel used in the trade on the lakes
is liable, independently of contract, for a loss by fire which
occurs without any design or neglect of the owner, although it may
be traced to negligence of some of the officers or agents having
charge of the vessel.
2. Whether the special contract set up by the respondent,
although admitted by the libellants, was founded on a custom which
the law would support, and whether or not, therefore, the case was
to be governed by the act of 1851.
MR. JUSTICE MILLER delivered the opinion of the Court.
1. The answer to the first of the two questions above presented
and which we have to consider depends upon the construction to be
given to the act of Congress. That the owners of vessels were
liable at common law in the case stated in the question had been
decided by this Court in the case of the
New Jersey Steam
Navigation Co. v. Merchants' Bank. [
Footnote 3] That decision led to the enactment of the
statute. The statute has been the subject of consideration in this
Court before in the case of
Moore v. American Transportation
Co. The policy of the act, its relation to the act of 53
George III and other British statutes, are there discussed, and it
is decided -- that being the principal question before the Court --
that the act embraces vessels engaged
Page 70 U. S. 153
in commerce on the great northern lakes as well as on the ocean.
It is quite evident that the statute intended to modify the
shipowner's common law liability for everything but the act of God
and the King's enemies. We think that it goes so far as to relieve
the shipowner from liability for loss by fire to which he has not
contributed either by his own design or neglect.
By the language of the first section, the owners are released
from liability for loss by fire in all cases not coming within the
exception there made. The exception is of cases where the fire can
be charged to the owners' design or the owners' neglect.
When we consider that the object of the act is to limit the
liability of
owners of vessels, and that the exception is
not in terms of negligence generally, but only of negligence of the
owners, it would be a strong construction of the act, in derogation
of its general purpose, to hold that this exception extends to the
officers and crews of the vessels as representing the owners.
If, however, there could be any doubt upon the construction of
this section standing alone, it is removed by a consideration of
the sixth section, which in terms saves the remedy to which any
party may be entitled against the master, officers, or mariners of
such vessel for negligence, fraud, or other malversation. This
implies that it was the purpose of the preceding sections to
release the owner from some liability for conduct of the master and
other agents of the owner for which these parties were themselves
liable and were to remain so, and that is stated to be their
negligence and fraud.
We are therefore of opinion that in reference to fires occurring
on that class of vessels to which the statute applies, the owner is
not liable for the misconduct of the officers and mariners of the
vessel in which he does not participate personally.
2. But there is a proviso to the first section of the act which
says
"that nothing in this act contained shall prevent the parties
from making such contract as they please, extending
Page 70 U. S. 154
or limiting the liability of such owner."
It is asserted by the libellants that the answer of the
defendant sets out a contract which makes the owners liable in case
of loss by fire from the negligence of their officers and agents,
and that, by the amendment to the libel, this contract is admitted,
and that the only question left in the case is the existence of
such negligence -- a question on which testimony was taken on both
sides.
The respondent undoubtedly does set out, in one article of his
answer, that the wheat was received on board with the understanding
that the usual bill of lading, common in that trade, should be
given and accepted as the contract between the parties, and avers
that such bill of lading contained a clause exempting the shipowner
from liability for loss by "perils of navigation, perils of the
sea, and other equivalent words," and that by usage and custom,
those words included loss by fire unless said fire had been caused
by the negligence or misconduct of the owner or his servants or
agents.
This article was excepted to, as well as the other two defenses
we have mentioned, by libellants in the district court when the
case was tried there, but no ruling seems to have been had on the
exceptions. When the case came to the circuit court after the case
of
Moore v. Transportation Co. had decided that the act of
1851 was applicable to the lake trade, the libellants, perceiving
the advantage to be gained by such a special contract, amended
their libel and admitted it.
No proof was offered of the contract or of the custom, and it
may be doubted if the defendant intended to state as an affirmative
proposition that on such bills of lading as those described, usage
held the owners responsible for the negligence of their officers in
cases of fire. But the custom is so stated, and the libellants
admit the contract and the construction given to it by custom.
It is obvious, however, that there is nothing in the language of
such bills of lading concerning "perils of navigation and perils of
the sea" which makes the owner liable for the negligence of his
servants in case of loss by fire. Can usage add
Page 70 U. S. 155
to words which do not express it a liability from which the act
of Congress declares the shipowner to be free? It was the common
law or immemorial usage which made him liable before the statute.
That relieved him from the force of that usage or law. It cannot be
that the liability can be revived by merely attaching such usage to
words in a contract which have no such meaning of themselves. The
contract mentioned in the proviso, which can take a case out of the
statute, is one made by the parties, not by custom -- in other
words, an express contract.
We do not believe, then, that the special contract set up by
respondent, founded on usage, although admitted by the libellants,
is founded on a custom which the law will support, and therefore
the case must be governed by the act of 1851.
The construction which we have already given to that act
requires that the judgment of the circuit court dismissing the
libel shall be
Affirmed with costs.
[
Footnote 1]
9 Stat. at Large 635.
[
Footnote 2]
65 U. S. 24 How.
1
[
Footnote 3]
47 U. S. 6 How.
344.
