Bales of wool were stowed on a steamship, with proper dunnage,
between decks and forward of a temporary wooden bulkhead. At a
subsequent port, wet sugar (from which there is always drainage)
was stowed aft of that bulkhead, with proper dunnage but without
any provision for carrying off the drainage in case it ran forward.
The ship was then down by the stern, and all drainage from the
sugar was carried off by the scuppers. At a third port, other cargo
was discharged, so as to trim the vessel two feet by the head, and
the drainage from the sugar found its way through the bulkhead and
damaged the wool through negligence of those in charge of the ship
and cargo.
Held: that the damage to the wool was through
fault in the proper loading or stowage of the cargo, within section
1 of the Act of February 13, 1893, c. 105, known as the Harter Act,
and not from fault in the navigation or management of the vessel
within section 3 of that act.
The words, in section 1 of the Harter Act, "any vessel
transporting merchandise or property from or between ports of the
United States and foreign ports," include a foreign vessel
transporting merchandise from a foreign port to a port of the
United States, and such a vessel and its owner are therefore liable
for negligence in proper loading or stowage of the cargo,
notwithstanding any stipulations in the bill of lading that they
shall be exempt from liability for such negligence and that the
contract shall be governed by the law of the ship's flag.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
The Botany Worsted Mills, a corporation of New Jersey, and
Winter & Smillie, a firm of merchants in the City of New
York,
Page 179 U. S. 70
respectively owners of two separate lots of bales of wool,
shipped at Buenos Ayres for New York on board the steamship
Portuguese Prince, severally filed libels in admiralty
in personam in the District Court of the United States for
the Southern District of New York against James Knott, the owner of
the vessel, to recover for damage caused to the wool by contact
with drainage from wet sugar which also formed part of her
cargo.
The
Portuguese Prince was a British vessel belonging to
a line trading between New York and ports in the River Plata,
Brazil, and the West Indies, loading and discharging cargo and
having a resident agent at each port. The bills of lading of the
wool, signed at Buenos Ayres December 21, 1894, gave her liberty to
call at any port or ports to receive and discharge cargo, and for
any other purpose whatever, and purported to exempt the carrier
from liability for
"negligence of masters or mariners, . . . sweating, rust,
natural decay, leakage, or breakage, and all damage arising from
the goods by stowage, or contact with, or by sweating, leakage,
smell, or evaporation from, them, . . . or any other peril of the
seas, rivers, navigation, or of land transit, of whatsoever nature
or kind, and whether any of the perils, causes, or things above
mentioned, or the loss or injury arising therefrom, be occasioned
by the wrongful act, default, negligence, or error in judgment of
the owners, masters, officers, mariners, crew, stevedores,
engineers, and other persons whomsoever in the service of the ship,
whether employed on the said steamer or otherwise, and whether
before or after or during the voyage, or for whose acts the
shipowner would otherwise be liable, or by unseaworthiness of the
ship at the beginning or at any period of the voyage, provided all
reasonable means have been taken to provide against such
unseaworthiness."
Each bill of lading also contained the following clause:
"This contract shall be governed by the law of the flag of the
ship carrying the goods, except that general average shall be
adjusted according to York-Antwerp Rules 1890."
The facts of the case are substantially undisputed. The bales of
wool of the libellants were taken on board at Buenos Ayres,
December 21-24, 1894, and were stowed on end, with proper dunnage,
between decks near the bow, and forward of a temporary
Page 179 U. S. 71
wooden bulkhead, which was not tight. The vessel, after touching
at other ports, touched on February 19, 1895, at Pernambuco, and
there took on board two hundred tons of wet sugar (from which there
is always drainage), which was stowed, with proper dunnage, between
decks, aft of the wooden bulkhead. At that time, the vessel was
trimmed by the stern, and all drainage from the sugar flowing aft
was carried off by the scuppers, which were sufficient for the
purpose when the vessel was down by the stern or on even keel in
calm weather. There was no provision for carrying off the drainage
in case it ran forward. She discharged other cargo at Para, and on
March 10, when she left that port, she was two feet down by the
head. She continued in this trim until she took on additional cargo
at Port of Spain, where the error in trim was corrected, and she
left that port on March 18, loaded one foot by the stern. It was
agreed by the parties that there was no damage to the wool by sugar
drainage until she was trimmed by the head at Para; that the wool
was damaged, by sugar drainage finding its way through the bulkhead
and reaching the wool at Para, or between Para and Port of Spain,
and not afterwards; that, after she was again trimmed by the stern
at Port of Spain, none of the drainage from the sugar found its way
forward, and that the court might draw inferences.
The district court entered a decree for the libellants. 76 F.
582. That decree was affirmed by the circuit court of appeals. 82
F. 471. The appellant then obtained a writ of certiorari from this
Court. 168 U.S. 711.
Before the Act of Congress of February 13, 1893, c. 105 (27
Stat. 445), known as the Harter Act, it was the settled law of this
country, as declared by this Court, that common carriers by land or
sea could not by any form of contract exempt themselves from
responsibility for loss or damage arising from negligence of their
servants, and that any stipulation for such exemption was void as
against public policy, although the courts in England and in some
of the states held otherwise.
Railroad Co. v.
Lockwood, 17 Wall. 357;
Liverpool Steam Co. v.
Phenix Ins. Co., 129 U. S. 397;
Compania La Flecha v. Brauer, 168 U.
S. 104,
168 U. S.
117-118. In many lower courts of the United States,
Page 179 U. S. 72
it has been held, independently of the Harter Act, that a
stipulation that a contract should be governed by the law of
England in this respect was void, and could not be enforced in a
court of the United States, but the point has not been decided by
this Court. Nor is it necessary for us now to decide that point,
because these bills of lading were issued since the Harter Act, and
we are of opinion that the case is governed by the express
provisions of that act.
Upon the facts of this case, there can be no doubt that the ship
was seaworthy, and that the damage to the wool was caused by
drainage from the wet sugar through negligence of those in charge
of the ship and cargo. The questions upon which the decision of the
case turns are two:
First. Whether this damage to the wool was "loss or damage
arising from negligence, fault, or failure in proper loading,
stowage, custody, care, or proper delivery" of cargo within the
first section of the Harter Act, or was "damage or loss resulting
from faults or errors in navigation or in the management of said
vessel" within the third section of that act.
Second. Do the words in the first section "any vessel
transporting merchandise or property from or between ports of the
United States and foreign ports" include a foreign vessel
transporting merchandise from a foreign port to a port of the
United States?
Section 1 of that act is as follows:
"It shall not be lawful for the manager, agent, master, or owner
of any vessel transporting merchandise or property from or between
ports of the United States and foreign ports to insert in any bill
of lading or shipping document any clause, covenant, or agreement
whereby it, he, or they shall be relieved from liability for loss
or damage arising from negligence, fault, or failure in proper
loading, stowage, custody, care, or proper delivery of any and all
lawful merchandise or property committed to its or their charge.
Any and all words or clauses of such import inserted in bills of
lading or shipping receipts shall be null and void and of no
effect."
This section, in all cases coming within its provisions,
overrides and nullifies any such stipulations in a bill of lading.
Calderon v. Atlas Steamship Co., 170 U.
S. 272.
Page 179 U. S. 73
By section 3, on the other hand, "if the owner of any vessel
transporting merchandise or property to or from any port in the
United States" shall exercise due diligence to make her in all
respects seaworthy and properly manned, equipped, and supplied,
neither the vessel nor her owner, agent, or charterer "shall become
or be held responsible for damage or loss resulting from faults or
errors in navigation or in the management of said vessel," etc.
This section does but relax the warranty of seaworthiness in the
particulars specified in the section.
The Carib Prince,
170 U. S. 655;
The Irrawaddy, 171 U. S. 187.
We fully concur with the courts below that the damage in
question arose from negligence in loading or stowage of the cargo,
and not from fault or error in the navigation or management of the
ship, for the reasons stated by the district judge and approved by
the circuit court of appeals as follows:
"The primary cause of the damage was negligence and inattention
in the loading or stowage of the cargo, either regarded as a whole
or as respects the juxtaposition of wet sugar and wool bales placed
far forward. The wool should not have been stowed forward of the
wet sugar unless care was taken in the other loading and in all
subsequent changes in the loading to see that the ship should not
get down by the head. There was no fault or defect in the vessel
herself. She was constructed in the usual way, and was sufficient.
But, on sailing from Para, she was a little down by the head,
through inattention during the changes in the loading, to the
effect these changes made in the trim of the ship and in the flow
of the sugar drainage. She was not down by the head more than
frequently happens. It in no way affected her seagoing qualities,
nor did the vessel herself cause any damage to the wool. The damage
was caused by the drainage of the wet sugar alone. So that no
question of the unseaworthiness of the ship arises. The ship
herself was as seaworthy when she left Para as when she sailed from
Pernambuco. The negligence consisted in stowing the wool far
forward without taking care subsequently that changes of loading
should not bring the ship down by the head. I must therefore regard
the question as solely a question of negligence in the stowage and
disposition of cargo, and of damage consequent
Page 179 U. S. 74
thereon, though brought about by the effect of these negligent
changes in loading on the trim of the ship. . . . The change of
trim was merely incidental, the mere negligent result of the
changes in the loading, no attention being given to the effect on
the ship's trim or on the sugar drainage. . . . Since this damage
arose through negligence in the particular mode of stowing and
changing the loading of cargo as the primary cause, though that
cause became operative through its effect on the trim of the ship,
this negligence in loading falls within the first section. The ship
and her owner must therefore answer for this damage, and the third
section is inapplicable."
76 F. 583-585; 51 U.S.App. 473.
In
The Glenochil (1896) Prob. 10, on which the
appellant much relied, the negligence which was held to be within
the third section of the Harter Act was, as said by Sir Francis
Jeune,
"a mismanagement of part of the appliances of the ship, and
mismanagement which arose because it was intended to do something
for the benefit of the ship -- namely, to stiffen her, the
necessity for stiffening arising because part of her cargo had been
taken out of her."
He pointed out that the first and third sections of the act
might be reconciled by the construction
"first, that the act prevents exemptions in the case of direct
want of care in respect of the cargo, and secondly, the exemption
permitted is in respect of a fault primarily connected with the
navigation or the management of the vessel, and not with the
cargo."
And he added that the court had had the same sort of question
before it in the case of
The Ferro, (1893) Prob. 38, and
he adhered to what he there said, "that mere stowage is an
altogether different matter from the management of the vessel." And
Sir Gorell Barnes delivered a concurring opinion to the same
effect.
The like distinction was recognized by this Court in the recent
case of
The Silvia, 171 U. S. 462,
171 U. S. 466.
The remaining question is whether the first section of the
Harter Act applies to a foreign vessel on a voyage from a foreign
port to a port in the United States.
The power of Congress to include such cases in this enactment
cannot be denied in a court of the United States. The point in
Page 179 U. S. 75
controversy is whether, upon the proper construction of the act,
Congress has done so. That the third section does extend to such a
vessel or such a voyage has been already decided by this Court.
The Silvia, above cited;
The Chattahoochee,
173 U. S. 540,
173 U. S.
550-551.
It is true that the words of that section are not exactly the
same in this respect, being "any vessel transporting merchandise or
property to or from any port in the United States," whereas the
corresponding words in the first section are "any vessel
transporting merchandise or property from or between ports of the
United States and foreign ports."
But the two phrases, as applied to the subject matter, are
precisely equivalent, and are both equally applicable to a foreign
voyage that ends, and to one that begins, in this country. In their
usual and natural meaning, the words "from any port in the United
States" include all voyages, whether domestic or foreign, which
begin in this country; the words "to any port in the United States"
include all voyages, whether domestic or foreign, which end in this
country, and the words "between ports of the United States and
foreign ports" include all foreign voyages which either begin or
end here. The words of the third section "to or from any port in
the United States" express in the simplest and most direct form the
intention to include voyages hither as well as voyages hence. And
we find insuperable difficulty in the way of giving a different
meaning to the words of the first section "from or between ports of
the United States and foreign ports." The words "from ports of the
United States" would of themselves be sufficient to cover all
voyages which begin here, whether they end in a domestic or in a
foreign port, and the words "between ports of the United States and
foreign ports" no more appropriately designate foreign voyages
beginning here than such voyages beginning abroad. The phrase of
the first section is slightly elliptical, but it appears to us to
have exactly the same meaning as if the ellipsis had been supplied
by repeating the words "ports of the United States," so as to read
"any vessel transporting merchandise or property from ports of the
United States, or between ports of the United States and foreign
ports." And
Page 179 U. S. 76
no reason has been suggested why a foreign vessel should come
within the benefit of the third section relaxing the warranty of
seaworthiness and not come within the prohibition of the first
section affirming the unlawfulness of stipulations against
liability for negligence.
Attention was called at the bar to the fact that, in the act as
originally passed by the House of Representatives, the words of the
third section were "any vessel transporting merchandise or property
between ports in the United States of America and foreign ports,"
and that for those words the Senate substituted the words as they
now stand in the act, and it was argued that the change in this
section, leaving unchanged the corresponding clauses in the first
and other sections of the act, showed that those sections were not
supposed or intended to include vessels bound from foreign ports to
ports of the United States. But the argument fails to notice that
the third section, as it originally stood, did not contain the
words "from or," but covered only voyages "between ports in the
United States and foreign ports," and the more reasonable inference
is that the change was made for the purpose of bringing domestic
voyages within this section.
See 24 Cong.Rec. 147-149,
173, 1181, 1291-1292.
Attention was also called to the fourth section of the act,
which makes it the duty of the owner, master, or agent of "any
vessel transporting merchandise or property from or between ports
of the United States" to issue to shippers bills of lading
containing a certain description of the goods, and to the fifth
section, which provides that,
"for a violation of any of the provisions of this act, the
agent, owner, or master of the vessel guilty of such violation, and
who refuses to issue on demand the bill of lading herein provided
for, shall be liable to a fine not exceeding two thousand
dollars,"
and the amount of the fine and costs shall be a lien upon the
vessel, and she may be libelled therefor in any district court of
the United States within whose jurisdiction she may be found. It
was argued that this provision imposing a penalty would cover a
refusal to give a bill of lading without the clauses prohibited by
the first section, and could not extend to acts done in a foreign
port out of the
Page 179 U. S. 77
jurisdiction of the United States. But whether that be so or not
(which we are not required in this case to decide), it affords no
sufficient reason for refusing to give full effect, according to
what appears to us to be their manifest meaning, to the positive
words of the first section, which enact, as to "any vessel"
transporting merchandise or property "between ports of the United
States and foreign ports," that all stipulations relieving the
carrier from liability for loss or damage arising from negligence
in the loading or stowage of the cargo shall not only be unlawful,
but "shall be null and void and of no effect."
This express provision of the act of Congress overrides and
nullifies the stipulations of the bill of lading that the carrier
shall be exempt from liability for such negligence, and that the
contract shall be governed by the law of the ship's flag.
Decree affirmed.