1. A captain who, in the night and in a fog, enters a port
supposing it to be his port of destination enters at his peril of
its being so unless there have been some necessity for his seeking
a port. If there have been proper ground to doubt whether the port
was the one which he supposed it to be, and he could safely wait
outside till morning or could signal a tug boat to pilot him in, he
should not proceed till he can see or know where he is going.
2. A loss of a part of the cargo by a jettison resorted to in
order to lighten the boat after she had run aground in consequence
of violating such a dictate of prudence is not a loss "by dangers
of the navigation" within the meaning of a bill of lading having an
exception in those terms.
3. A vessel proceeding in the night and in a fog into port is
bound to proceed at a low rate of speed.
4. If a vessel is stranded, it is the duty of the captain to
take all possible care of the cargo. If the vessel must be
lightened before she can get off, he should get lighters, if
possible, and land it, not make a jettison of it.
The Salt Company of Onondaga shipped at Buffalo, on the
propeller
Portsmouth, a large quantity of salt for Chicago
under a bill of lading in the usual form, but containing an
exception of the dangers of the navigation.
On the 9th of October, 1866, the propeller, with the salt on
board, reached Fox Island in Lake Michigan, and about seven o'clock
in the evening of the same day left it bound directly for Chicago,
using both sail and steam. The weather was foggy, and the wind was
blowing from the northeast, with a considerable sea. The fog
continued during that night and all the next day, and the wind blew
freshly, though not so as to prevent the propeller's carrying her
foresail. Nothing particular occurred until about sunset of the
evening of the 10th, when, as described by the master, the fog
lifted for a minute, and a loom of the land on the west side of the
lake was discovered, and the master, mate, and engineer "could just
see a church steeple and a house, as near as they could
Page 76 U. S. 683
calculate." The master did not know the distance from Fox Island
to Racine, but consulting with the engineer as to the quantity of
steam carried, and referring to his own expectation of the time
when he expected to be that far on his course, which he had fixed
at six o'clock in the evening, he concluded that the place was
Racine, in Wisconsin. Acting upon that conclusion, the propeller
was continued on a course generally south by east half-east, and
southeast, then south by west, and southwest, and finally west,
until a whistle was heard, which the master took to be that of a
propeller at the Chicago pier. This must have been at about three
o'clock in the morning of the 11th. Soon after a white light was
discovered, and this was assumed to be the Chicago light; the light
at port being a white one, though not the only white one on the
west coast of the lake. The sound of cars running, and of car
whistles was also heard, which the master inferred to be caused by
making up trains at Chicago. Accordingly he attempted to enter the
port, but when the propeller came very near the pier, it was
discovered not to be the pier of Chicago, and the vessel was
immediately backed. It was, however, too late. She grounded and
held fast. According to the testimony of the second engineer, who
was in the engine room managing the steamer, the vessel, until
three minutes before his getting the bell to stop, had been running
at full speed, which was between eight and nine miles an hour. The
captain and first engineer -- this last, until three minutes before
the bell to stop was rung having been on deck with the captain --
testified that they were not running so fast, that she was "under
check," the captain stating that she was not running more than from
three to four miles an hour. The master testified that although the
weather was rough, he might safely have remained out in the lake
till daylight, or might have signaled for a tug to take them in,
and that he would not have gone in had he not, in common with the
other officers, certainly believed that the place was Chicago.
After the boat was found to be aground and fast, the clerk was at
once sent ashore and dispatched to Chicago for a tug. Meanwhile,
the
Page 76 U. S. 684
propeller remained at the place where she had taken the bottom,
which proved to be Waukegan, some thirty or forty miles from
Chicago, until the tug arrived late in the afternoon of the 11th.
No lighter was sent for, and no efforts were made to save the
cargo, but after the arrival of the tug, about one thousand barrels
of the salt were thrown overboard to lighten the propeller, though
the wind had then subsided, and she was apparently in no danger.
The next morning she was got off, and she proceeded to her port of
destination, where the residue of the salt was landed. The Salt
Company now filed a libel in the District Court for the Northern
District of Illinois for the salt that had been thrown overboard
and was undelivered. The propeller set up that it had been lost in
the perils of navigation -- thrown over to save the vessel and
residue -- and was so a case for general average. The district
court decided otherwise, and the circuit court affirmed its decree.
The owners of the propeller now brought the case here.
MR. JUSTICE STRONG delivered the opinion of the Court.
The contract of the appellant was to deliver the two thousand
barrels of salt at Chicago to the cosignee named, "the dangers of
lake navigation only excepted," and whether the failure to deliver
was caused by the excepted dangers is now the only question. A loss
by a jettison occasioned by a peril of the sea is, in ordinary
cases, a loss by perils of the sea. But it is well settled that if
a jettison of a cargo or a part of it is rendered necessary by any
fault or breach of contract of the master or owners of the vessel,
the jettison must be attributed to that fault, or breach of
contract, rather than to the sea peril, though that may also be
present, and enter into the case. [
Footnote 1] This is a principle alike applicable to
exceptions in bills of lading and in policies of insurance.
[
Footnote 2] Though the peril
of the sea may be nearer in time to the
Page 76 U. S. 685
disaster, the efficient cause, without which the peril would not
have been incurred, is regarded as the proximate cause of the loss.
And there is perhaps greater reason for applying the rule to
exceptions in contracts of common carriers than to those in
policies of insurance, for in general, negligence of the insured
does not relieve an underwriter, while a common carrier may not,
even by stipulation, relieve himself from the consequences of his
own fault. [
Footnote 3]
In view of this recognized construction given to such clauses in
bills of lading as "perils of the sea excepted," or, as in this
case, "the dangers of lake navigation only excepted," it is plain
that the appellant has shown no sufficient excuse for the failure
to deliver the salt to the consignee of the libellant.
It is manifest that the master was first at fault in mistaking
the land which he dimly saw on the evening of the 10th for Racine.
He was in fact then from thirty to forty miles farther from Chicago
than he supposed he was. His supposition was unwarranted by the
evidence he had. He thought the place was Racine not because of its
appearance when he saw the steeple and the house. His view of those
objects was very indistinct. His language is, "We could just see a
church steeple and a house, as near as we could calculate." The
outline of the shore he does not pretend to have seen, or anything
which by its appearance justified his conclusion that he was
opposite Racine. His sole reasons for assuming that such was his
position are to be found in his having consulted with his engineer
about the quantity of steam carried and in his own estimate of the
time when he expected to reach that place. At best, therefore, his
conclusion was based upon a conjecture. Considering that the voyage
from Fox Island had been through a thick fog and in a heavy sea;
that the wind had not been quite steady; that the speed of the
propeller had not been measured by the log, or by observations; and
considering also another fact, to which the master testifies, that
he did not know the
Page 76 U. S. 686
distance from Fox Island to Racine, it seems to us his
conjecture that the propeller was opposite Racine at sunset of the
10th was no reliable guide to the subsequent conduct of the voyage.
It was, however, accepted as a guide, and it led directly to the
disastrous fault afterwards committed of mistaking Waukegan for
Chicago. The master, judging that he had steamed far enough from
Racine, readily concluded that the light he saw and the whistle and
running cars he heard were at the place of his ultimate
destination, and without any careful verification of his opinion,
he attempted to enter the port. The light he saw, it is true, was a
white light, like that at Chicago. But there were other white
lights on the west shore of the lake. Waukegan had one. The whistle
and the running cars were not peculiarities at Chicago. There was
enough in his situation to awaken doubt and to induce caution. We
think that in his circumstances, the attempt he made to enter the
port was inexcusably rash. It was not a necessity. His duty to the
owners, and still more to the freighters, was to exercise the
highest prudence as well as skill to guard against loss. According
to his testimony, he might safely have remained out in the lake
until morning, or he might have signaled for a tug to take the
propeller in. It was his duty to do one or the other. He did
neither. He testifies he would have gone out into the lake and
waited until daylight had he not supposed he had found a harbor. He
had no right to act upon such a supposition, which at best was no
more than a careless conjecture. He admits what must be evident --
that he could have seen plainer had he waited till daylight before
attempting to enter, and that he might have known the pier was
Waukegan pier. He thinks a tug could have found the propeller had
he signaled, but he neglected to signal. The second engineer also
testifies that the propeller attempted to enter the port at her
usual speed of eight and a half or nine miles an hour, which, if
the statement be correct, was much too great. It is true his
statement varies from the account given by the master and chief
engineer, but the chief engineer and the master were both upon
deck, and
Page 76 U. S. 687
the second engineer was in immediate charge of the engine until
within three minutes of the time when the signal was given to stop,
and even during those three minutes the chief engineer was outside
of the engine room. The second engineer must therefore have best
known at what rate of speed the propeller was moving. In view of
all this, we have no hesitation in coming to the conclusion that
the loss sustained by the libellants is to be attributed to the
fault of the carrier, and not to the excepted dangers of lake
navigation.
Were it necessary, it would be easy to show that the conduct of
the master after the vessel was stranded was entirely
unjustifiable. It was his duty even then to take all possible care
of the cargo. He was bound to the utmost exertion to save it.
Losses arising from dangers of navigation, within the meaning of
the exception in the bill of lading, are such only as happen in
spite of the best human exertions, which cannot be prevented by
human skill and prudence. [
Footnote
4] But in this case no effort was made to save the cargo. The
salt was not thrown overboard until after the arrival of the tug.
The fog had then lifted. The wind and the sea had subsided. It is
evident the salt might then have been saved if it could not have
been removed before.
Decree affirmed with costs.
[
Footnote 1]
Lawrence v.
Minturn, 17 How. 100.
[
Footnote 2]
General Mutual Insurance
Co. v. Sherwood, 14 How. 365.
[
Footnote 3]
Vide 62 U. S.
Cordes, 21 How. 29.
[
Footnote 4]
Propeller Niagara v. Cordes, cited supra, <|76 U.S.
685|>685.
