Sivut kuvina
PDF
ePub

was responsible under section 1. Andean Trading Co. v. Pacific Steam Nav. Co. (C. C. A. N. Y.) 263 F. 559.

16. Burden of proof.-In a shipper's action for loss of part of a shipment, wherein the carrier set up a limitation of liability, the burden was on plaintiff to show that he had been refused an alternative rate by the carrier, or that an alternative rate was not in existence. Mariani Bros. v. Thomas Wilson, Sons & Co. (Sup.) 177 N. Y. S. 335.

20. Damage held not to be due to negligent stowage.-A steamship held not liable for damage to a cargo of pickled hides, except as to a small number stored in one corner of a hold, which were apparently damaged by sea water; the damage to others, distribut

ed throughout the cargo, being due to causes existing when they were loaded. The Goyaz (D. C. N. Y.) 281 F. 259.

21. Stowage held negligent.-A steamship held not liable for damage to a cargo of pickled hides, except as to a small number stowed in one corner of a hold, which were apparently damaged by sea water. The Goyaz (D. C. N. Y.) 281 F. 259.

Cited without definite application, Galveston, H. & S. A. Ry. Co. v. Woodbury, 41 S. Ct. 114, 254 U. S. 357, 65 L. Ed. 301; Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co. (C. C. A. Mass.) 256 F. 497; The Verdi (C. C. A. N. Y.) 282 F. 572; The Fort Morgan (D. C. Md.) 274 F. 734; TriState Packet Co. v. G. R. Brickey Mercantile Co. (Ark.) 235 S. W. 40.

§ 8030. (Act Feb. 13, 1893, c. 105, § 2.) Clauses in bills of lading relieving from exercise of due diligence in equipping, etc., vessels, prohibited.

See The Turret Crown (D. C. N. Y.) 282 F. 354.

Validity of particular exemptions.A bill of lading covering olive oil shipped by the barrel, and limiting the carrier's liability to £20 per barrel, held valid, under Harter Act, §§ 1, 2 (U. S. Comp. St. §§ 8029, 8030). Mariani Bros. v. Thomas Wilson, Sons & Co. (Sup.) 177 N. Y. S. 335.

Construction and effect of exemptions. The provision of a charter that penalty for nonperformance should be proved damages, not exceeding the estimated amount of freight, if treated as a limitation of liability, did not apply to a case of willful unexcused refusal to go on with the voyage. Rederiaktiebolaget Atlanten v. Aktieselskabet Korn-Og Foderstof Kompagniet, 40 S. Ct. 332, 252 U. S. 313, 64 L. Ed. 586, affirming decree (C. C. a. N. Y.) Aktieselskabet Korn-Og Foderstof Kompagniet v. Rederiaktiebolaget Atlanten, 250 F. 935, which affirms decree (D. C.) 232 F. 403.

In view of this and the preceding section, stipulation in bill of lading reading, "Leakage of contents at owner's risk," does not absolve the carrier from liability arising from negli

gence or want of the exercise of due diligence in properly stowing cargo. The Korea Maru (C. C. A. Cal.) 274 F. 509.

Though the owner of a scow did not insure the safety of merchandise loaded thereon, and though the burden rested on cargo owner to show by a fair preponderance of the evidence that its loss through the capsizing of the scow was the result of lack of due care, the owner of the scow was bound to make a real attempt to find out what caused the loss, and to do all it reasonably could to throw light on the reason for the capsizing. Robert A. Munroe Co. v. Chesapeake Lighterage & Towing Co. (D. C. Md.) 283 F. 526.

Cited without definite application, Frederick Leyland & Co. v. Hornblower (C. C. A. Mass.) 256 F. 289; Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co. (C. C. A. Mass.) 256 F. 497; The Verdi (C. C. A. N. Y.) 282 F. 572; The Fort Morgan (C. C. A. Md.) 284 F. 1; The Fort Morgan (D. C. Md.) 274 F. 734; Kaufer Co. v. Luckenbach S. S. Co. (D. C. Del.) 284 F. 160; Tri-State Packet Co. v. G. R. Brickey Mercantile Co. (Ark.) 235 S. W. 40.

§ 8031. (Act Feb. 13, 1893, c. 105, § 3.) Limitation of liability for errors of navigation, dangers of the sea, acts of God, etc.

[merged small][merged small][ocr errors][merged small]

12. Effect of section.-The fact that the imminent peril which necessitated the jettison of part of the cargo was occasioned by the negligent navigation of the vessel does not entitle the saved cargo to have transferred to the vessel its liability to the lost cargo for general average contribution, since, within this section, a vessel shall not be responsible for errors in navigation, the term "responsible" means answerable, legally or morally, for the discharge of a duty, trust, or other obligation, accountable, and to charge the vessel with liability for such general average contribution would make it responsible for what the Harter Act stated it should not be held responsible. The Mary F. Barrett (C. C. A. Pa.) 279 F. 329, reversing decree (D. C.) 270 F. 618.

132. General average.-The doctrine of general average under which the loss caused by a sacrifice made for the common benefit of all should be borne ratably by all does not apply when the necessity for the sacrifice was caused by the negligence of the master or crew. The Mary F. Barrett (D. C. Pa.) 270 F. 618.

The Harter Act (Comp. St. §§ 80298035), which exempted vessels from liability for losses due to errors of navigation, merely relieved them from liability, but did not entitle them to general average contribution for losses made necessary by errors of navigation. Id.

In the absence of a stipulation in the charter party entitling the ship to gen eral average contribution for losses made necessary by errors in navigation, which stipulation is authorized under the Harter Act (Comp. St. §§ 8029-8035), the vessel cannot, on a lib 1 for part of the cargo jettisoned because of the stranding of the vessel resulting fom errors in navigation, interpose the right to general average as a defense pro tanto. Id.

The owner of a cargo can recover from the vessel the full value of the portion lost by jettison made necessary by errors of navigation if the charter contained no stipulation entitling the vessel to general average contribution. Id.

14. Seaworthiness. A steamship, though seaworthy for ordinary weather, was "unseaworthy," within the meaning of the Harter Act (Comp. St. §§ 8029-8035), when she left her home port when her master and manager knew or should have known that a tropical hurricane was approaching, which she was not adapted to live out. Texas & Gulf S. S. Co. v. Parker (C. C. A. Tex.) 263 F. 864, certiorari denied 40 S. Ct. 485, 253 U. S. 488, 64 L. Ed. 1026.

With respect to the cargo it offers to carry, a vessel is "seaworthy" when it is sufficient in materials, construction, 2 SUPP. U.S.COMP. '23-146

equipment, officers, men, and outfit for the trade or service in which it is employed, having in mind the higher requirements occasioned by the development of trade and commerce. Adams v. Bortz (C. C. A. N. Y.) 279 F. 521. Where damage to the cargo of a chartered vessel was due to unseaworthiness, the owner is primarily and the charterer secondarily liable therefor. The Lake Allen (D. C. N. Y.) 274 F. 873.

Unseaworthiness of the vessel, while it deprives the carrier of the benefit of all exceptions as to liability, leaves the other conditions of the bill of lading in force. The Turret Crown (D. C. N. Y.) 282 F. 354.

Where on a voyage it becomes necessary for safety of the ship, crew, and cargo to seek a port for repairs, such deviation does not displace the contract of carriage, though made necessary by unseaworthiness. Id.

16. Particular defects. - A freight boat, equipped with a siphon for the discharge of water from the bilge, whose outboard end was under water when the draft exceeded 14 feet and 3 inches, and which could be closed only by a stopcock located in the bilge about 2 feet above the keel and 10 or 12 feet below the working platform of the engine, and which it was practically impossible to close after a few feet of water entered the hold, held unseaworthy for a load causing a draft of 14 feet and 7 inches, within the Harter Act (Comp. St. §§ 8029-8035). The Viking (C. C. A. Ohio) 271 F. 801.

Where the coaling of a freight boat at Toledo was contempted as a necessary part of a voyage from Buffalo to Sault Ste. Marie, and the weight of the coal increased the draft to a point where the boat was unseaworthy, the situation, as respected liability under the Harter Act (Comp. St. §§ 80298035), was no different than if the coaling had been at Buffalo. Id.

17. Diligence to render vessel seaworthy. This section does not relieve a shipowner from his obligation to furnish a seaworthy vessel, nor can he avoid liability for failure to do so by the exercise merely of due diligence to perform his obligations in that respect. The Pehr Ugland (D. C. Va.) 271 F. 340.

Under a clause in the bill of lading exempting the carrier from liability for loss or damage to cargo occasioned by unseaworthiness. "even existing at time of shipment or sailing on the voyage, provided the owners have exercised due diligence to make the vessel seaworthy," the ship held not liable for damage caused by leakage, though unseaworthy in respect to her bottom riveting, where she had been drydocked within a few months and pronounced in good order and the owners

(2321)

had conformed with every suggestion as to repairs. The Turret Crown (D. C. N. Y.) 282 F. 354.

18. Manning and equipment.-Where a collision was due entirely to careless navigation, the fact that the mate of the tug, in charge of a cattle float injured by the collision, was not on board, held not ground for denying the owner of the tug the right to limit liability; it appearing that the collision did not occur during the mate's watch. The North Star (C. C. A. N. Y.) 255 F. 955.

Implied warranty of fitness of crew in the charter of a tugboat applies to the condition at the commencement of the voyage, and the unauthorized absence of the master and intoxication of the pilot without the knowledge of the owner are faults in the management of the vessel occurring without his privity. The Ice King (D. C. N. Y.) 256 F. 895, decree reversed (C. C. A.) 261 F. 897.

Where the owner of a tug chartered her by the month to a dredging company, the owner to furnish the crew, there was a continuing personal contract that the tug would be properly manned, and the owner cannot limit liability for loss occasioned by the absence of the master and the intoxication of the pilot left in charge, though it had used due diligence in selecting the crew and had no knowledge of the facts. Id.

19. Management or navigation.-The abandonment of a vessel by her master and crew, when the vessel is not yet past saving, is an error of navigation, and management, for which the owners can limit their liability under the Harter Act (Comp. St. §§ 80298035). The Thessaloniki (C. C. A. N. Y.) 267 F. 67, certiorari denied P. Lorillard Co. v. National Steam Nav. Co., 41 S. Ct. 63, 254 U. S. 649, 65 L. Ed. 457.

The cause of the loss of part of the cargo which was thrown overboard to lighten the vessel after she had stranded because of errors in navigation was the act of jettison, not the error in navigation which occasioned the necessity for it, so that the relief of the Harter Act (Comp. St. §§ 8029-8035) against liability for loss caused by errors in navigation does not apply. The Mary F. Barrett (D. C. Pa.) 270 F. 618.

21. Closing ports.-Leaving hatches open, for ventilation of cargo, through which water entered and damaged cargo, held not an "act in the management of the vessel," within this section but an "act in the care and custody of the cargo," for which the shipowner was responsible under section 1. Andean Trading Co. v. Pacific Steam Nav. Co., (C. C. A. N. Y.) 263 F. 559.

In action for damages sustained through partial loss by leakage from

containers of cargo consisting of cocoanut oil shipped from Manila to San Francisco during the month of July. evidence held to establish negligence in stowage, in that the tank in which the cocoanut oil had been placed was not a suitable or proper place in which to stow the oil for carriage during such season of the year, was wholly without ventilation, and that by reason of its proximity to the engine room and emergency escapes extending through it, the heat in the tank was rendered excessive, which affected the oil and caused the leakage. The Korea Maru (C. C. A. Cal.) 274 F. 509.

23. Dangers of the sea or other navigable waters.-Under steamship bills of lading excusing the owners from loss occasioned by the act of God or perils of the sea, unaccompanied by contributing negligence, the exceptions were not available where the steamship sailed, though her master and manager knew or could have ascertained that a dangerous hurricane was approaching, as the negligence, and not the peril of sea, was the proximate cause of the loss. Texas & Gulf S. S. Co. v. Parker (C. C. A. Tex.) 263 F. 864, certiorari denied 40 S. Ct. 485, 253 U. S. 488, 64 L. Ed. 1026.

A "peril of the sea," which forms a good exception in a bill of lading, means something so catastrophic as to triumph over those safeguards by which skillful and vigilant seamen usually bring ship and cargo to port in safety. The Rosalia (C. C. A. N. Y.) 264 F. 285.

The only charges of unseaworthiness in the pleadings and proofs were connected with the boilers, engines, and sounding pipes. Assuming them all to be established, the only result would be a delay in the prosecution of the voyage and the owners would not be liable, because the proximate cause of the loss of the vessel was a peril of the sea. The Thessaloniki (C. C. A. N. Y.) 267 F. 67, certiorari denied P. Lorillard Co. v. National Steam Nav. Co., 41 S. Ct. 63, 254 U. S. 649, 65 L Ed. 457.

The sinking of a lighter, when a hole was stove in it by the impact of some moving object floating in the slip where it was moored, was due to a "collision or peril of the sea," within the meaning of the bill of lading, covering goods in course of shipment and on the lighter, excepting liability of the carrier for loss through perils of navigation or collision. Feldman v. Old Dominion S. S. Co. (Sup.) 176 N. Y. S. 183.

Where a shipping company, operating seven vessels, six American and one British, which it was forbidden to take into the Mediterranean, agreed to transport copper to Italy, and the contract contained a war clause, giving the company an option to cancel any contract when hostilities should make it

improvident for vessels to sail, and the company, after losing vessels in the Mediterranean, declined to make further voyages, held that, where it carried some of the copper which it had agreed to carry, and offered to transport copper on the vessel last sailing for Mediterranean port, there can be no recovery for breach. Compagnie de Trefileries & Laminoirs du Havre v. France & Canada S. S. Co. (Sup.) 183 N. Y. S. 169.

242. Seizure under legal process.Under this section a vessel was not liable for failure to transport freight received on the wharf, and for which bills of lading were issued, where the failure was due to the seizure of the vessel under execution. The Brunswick (D. C. La.) 263 F. 907.

25. Deviation from voyage.-Where a ship without excuse deviates under contracts of carriage, she is responsible for any results arising therefrom. The Poznan (D. C. N. Y.) 276 F. 418.

28. Burden of proof.-In proceeding to limit liability, the burden is on the passenger or consignee to prove negligence by the steamship company as the cause of loss of baggage or cargo. The Thessaloniki (C. C. A. N. Y.) 267 F. 67, certiorari denied P. Lorillard Co. v. National Steam Nav. Co., 41 S. Ct. 63, 254 U. S. 649, 65 L. Ed. 457.

In a suit for damage to cargo, the burden rests on the shipowner to prove seaworthiness of the vessel at the beginning of the Voyage. The John Twohy (C. C. A. Pa.) 279 F. 343, affirming decree in part and reversing decree in part (D. C.) 243 F. 720.

And also to sustain the defense that the damage was caused by perils of the sea, within the exception of the charter party or bill of lading. Id.

Where ship, constituting a common carrier, fails to deliver at the port of destination, the burden of proving that such failure was due to an excepted peril under the bills of lading is on the ship. The Hellig Olav (C. C. A. N. Y.) 282 F. 534.

Where a steamship stranded through fault or negligence in navigation, to entitle the owner to the protection of this section it must be affirmatively shown that due care was exercised in the selection of the navigation officers and engine room force. The Fort Morgan (D. C. Md.) 274 F. 734.

Though the owner of a scow did not insure the safety of merchandise loaded thereon, and though the burden rested on cargo owner to show by a fair preponderance of the evidence that its loss through the capsizing of the scow was the result of lack of due care, the owner of the scow was bound to make a real attempt to find out what caused the loss, and to do all it reasonably could to throw light on the reason for the capsizing.--Robert A. Muuroe

Co. v. Chesapeake Lighterage & Towing Co. (D. C. Md.) 283 F. 526.

In an action under this act against a packet company for loss during transit of cotton shipped, the burden was on plaintiff to prove that defendant had failed to carry the cotton and deliver it to consignee. Tri-State Packet Co. v. G. R. Brickey Mercantile Co. (Ark.) 235 S. W. 40.

In an action under this act against a packet company for loss of cotton in. transit, the burden of showing that the case came within the exception to the statute exempting the carrier from liability for certain causes was upon defendant.-Id.

29. Evidence.-Evidence in proceeding to limit liability for loss of a vessel, with cargo and baggage, which showed that the vessel was abandoned after a quantity of water far greater than the contents of the boilers had entered the engine room during a storm, when the engines were stopped, held to show that the water entered from outside, not from the boilers, so that the loss was not due to unseaworthiness of the boilers. The Thessaloniki (C. C. A. N. Y.) 267 F. 67, certiorari denied P. Lorillard Co. v. National Steam Nav. Co., 41 S. Ct. 63, 254 U. S. 649, 65 L. Ed. 457.

In proceeding to limit liability, evidence of inspections of the vessel and her rating and condition held to show that she was seaworthy when she started on her last voyage, and that her loss was caused by perils of the sea. Id.

Where damage to cargo was caused by excessive leaking of the ship, evidence that she did not encounter unusual weather conditions, in the absence of other explanation, warrants the inference that she was unseaworthy at the beginning of the voyage. The John Twohy (C. C. A. Pa.) 279 F. 343, affirming decree in part and reversing decree in part (D. C.) 243 F. 720.

Evidence held insufficient to establish unseaworthiness of a vessel at the beginning of the voyage or improper stowage, but to show that damage to cargo resulted from errors in navigation or dangers of the sea, for which neither vessel nor owners were liable under this section. The John B. Robbins (D. C. Va.) 256 F. 61.

Evidence that a steamboat struck an obstruction and sank 50 yards outside of the channel, near a point where there had been a snag visib'e above the water for several months, held to warrant the inference that the vessel struck the snag, and that the cause of the accident was the negligence of the crew. In re St. Louis & Tennessee River Packet Co. (D. C. Mo.) 266 F. 919.

The fact that extensive repairs were made to a vessel after a voyage held

not to warrant an inference that damage to cargo on such voyage was due to unseaworthiness, where the repairs were not made to correct defects which could have caused the damage.-The Goyaz (D. C. N. Y.) 281 F. 259.

292. Conclusiveness of decree.Parties to a proceeding for limitation of liability, who voluntarily appear or, after they are brought in, whether rightfully or not, join issues with petitioner and between themselves, and litigate questions of liability, are bound by the decree. The Adah (C. C. A. N. Y.) 258 F. 377.

30. Vessel held to be unseaworthy.Damage to the lower and outside tiers of bags of sugar from moisture held due to unseaworthiness of the ship, caused by failure to supply proper dunnage. The Tabor (D. C. N. Y.) 274 F. 880.

A ship of United States registry, licensed only for coastwise business, which loaded in cargo at New York for Mediterranean ports, held unseaworthy for the voyage, and the owner not entitled to any of the exemptions from liability provided by this section. The St. Paul (D. C. N. Y.) 277 F. 99.

31. Due diligence to make the vessel seaworthy held not to have been shown. -Failure of a towing tug to provide a lookout stationed forward while navigating dangerous waters at night in stormy weather held culpable negligence, and to render the tug unseaworthy,, and tug and owner liable for stranding of the tow. Mylroie British Columbia Mills Tug & Barge Co. (C. C. A. Alaska) 268 F. 449.

V.

32. Insufficient inspection.-Damage to a cargo of sugar from leakage of sea water into a hold held due to unseaworthiness of the vessel by reason of structural defects, which manifested themselves under ordinary conditions of severe weather, and for which the vessel was not exempted from liability by this section; it being shown that many of the rivets were not properly fitted or driven, allowing leakage around them, which defects should have been disclosed by a proper inspection. The Lake Allen (D. C. N. Y.) 274 F. 873..

35. Loss held not due to dangers of the sea or other navigable waters.Evidence that a barge of coal sank while the tug in charge was deviating

to a port of refuge, because of a predicted storm, but that at the time the wind in the vicinity was blowing not to exceed 22 miles an hour, and that the master and crew of the barge were performing their routine duties without any indication of apprehension until shortly before it sank, held not to show the sinking was due to unusual weather, so as to be within the exception in the bill of lading of dangers of the sea. H. N. Hartwell & Sons v. Neptune Line (C. C. A. N. Y.) 273 F. 687.

36. Loss held to be due to dangers of the sea or other navigable waters.-A steamship held not liable for damage to a cargo of lemons by freezing, where a part was shipped on a bill of lading expressly excepting damage by frost and the remainder on a bill excepting perils of the sea and loss or damage occasioned by causes beyond the carrier's control, and by reason of exceptionally stormy weather the ship was driven from her course, her rudder broken, and she was compelled to make the port of Halifax for repairs, where the freezing occurred without any negligence on her part. The Angelo Toso (D. C. N. Y.) 278 F. 212.

Damage to cargo after its discharge on a pier at a port of refuge, caused by an extraordinary flood tide held due to act of God, for which the ship was not liable. The Turret Crown (D. C. N. Y.) 282 F. 354.

37. Loss caused by fault or error in navigation or management of the vessel. The stranding of a vessel which necessitated the jettison of part of the cargo and of property belonging to the vessel held due to the negligence of the master in navigating the vessel, which was admittedly ten miles off her course in the vicinity of known reefs, either because the master gave a wrong course or because he did not make the proper allowance for the set and strength of the known currents. The Mary F. Barrett (D. C. Pa.) 270 F. 618.

Cited without definite application, Frederick Leyland & Co. v. Hornblower (C. C. A. Mass.) 256 F. 289; Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co. (C. C. A. Mass.) 256 F. 497; The Verdi (C. C. A. N. Y.) 282 F. 572; The Elizabeth Dantzler (D. C. Va.) 263 F. 596; Kaufer Co. v. Luckenbach S. S. Co. (D. C. Wash.) 284 F. 160.

§ 8032. (Act Feb. 13, 1893, c. 105, § 4.) Bills of lading required to be issued; contents.

6. Right to, sufficiency of, and authority to issue bill of lading.-When the master of a ship, chartered but not demised, issues bills of lading, the contract evidenced thereby is not only the ship's contract and that of the charterer who caused their issue, but in addition is the contract of the owner whose

master issued them. Gans S. S. Line v. Wilhelmsen (C. C. A. N. Y.) 275 F. 254, modifying decree (D. C.) The Themis, 244 F. 545. Certiorari denied Barber & Co. v. Wilhelmsen, 42 S. Ct. 97, 257 U. S. 655, 66 L. Ed. 419.

A "bill of lading" is a receipt for the goods shipped, signed by the person

« EdellinenJatka »