(District Court, D. Marylana. May 12, 1881.)
all' AFFREIGHTMENT. A bill of ladlng for live beef cattle shipped by agreement on the deck of a steamer for a voyage from Baltimore to Liverpool, in December, 1880, contained, in addition to usual exceptions, a clause exempting ship-owners from any loss that might arise through cattle being jettisoned. Held, to mean that the ship-owner was not to be liable for contribution if the cattle should be thrown overboard for the safety of the ship, Hela, that with regard to a deck load of live cattle this limitation of the ship-owner's liability was not unreasonable or against public policy. Hela, if the cattle were thrown overboard because, during a prolonged storm, and without any fault of the ship-owner, they had got loose and were imperilling the ship, that under the limitation in the bill of lading the ship is exempted from contribution.
In Admiralty. O. F. Bump and 1. S. Rosenthal, for libellant, cited the following cases:
The agreement is a charter-party. Dixon on Shipping, 198; 1 Parsons on Shipping, 284; 1 Parsons on Maritime Law, 229; 3 Kent's Com. 201; The Tribune,3 Bumn. 144; Drinkwater v. The Spartan, 1 Ware, 149. A charter-party is not affected by a bill of lading, Dixon on Shipping, 202 j 1 Parsons on Shipping, 286; 1 Parsons on Maritime Law, 240; Perkins v. Hill, 2 Woodbury & Minot, 158; Lamb v. Parkman, 1 Sprague, 343; The 1 Low. 83; The Ethd, 5 Ben. 154; Oapper v. Wallace, L. R. 5 Q. B. Div. 163; Oaughey v. Gordon, L. R. 3 C. P. Div. 419; (}ledstanes v. Allen, 12 C. B. 202; Kern v. .Deslandes, 10 C. B. (N. S.)205; Willett v, Phillips, 8 Ben. 459; Sandeman Y. Scurr, L, R. 2 Q. B. 86; The Patria, L. R. 3 A. & C. 436. A contract limitihg'the liability of a carrier must be strictly construed. Ne!JJ Jersey Steam Nav. Co. v. Mer. Bank, 6 How. 344. Oontribution is founded on natural justice, and not on contract. Sturges v. Cary, 2 Ourt. 383. An exception to the liability of a carrier as such does not relieve him from contribution. Crooks V. Allen, L. R. 5 Q, B. Div. 38; &hmidt V. Steam-ship Co. 45 L, 1. Q. B. Div. 646. An attempt to exempt from liability to contribution is void as against public policy. Railroad Co. v. Lockwood, 17 Wall. 357; Railroad 00. v. PZatt, 22 Wall. 123; Bank v. Adams Exp. 00. 93 U. S. 174. An agent to load has no power to alter the terms of a charter-party. Lickens v.Irving, 7 C. B. (N. S.) 165; Rich v. Parrott, 1 Sprague, 358; A Oargo of Salt, 4 BIatchf. 225. A deck-load cargo is entitled to contribution. 2 Parsons, Marine Ins.
220; Gould v. Oliver,4 Bing. (N: 0.) 134; S. C.2 Man. & G. 208;· Hllrley v. Jfilward, 1 Jones & Carey, 224; Milward v. Hz1Jbert, 8 Q. B. 120; Johnson v. Chapman, 19 C. B. (N. S.) 563; BrO'lJJn v. Cornwell, 2 Root, 60; Harris v. ·Woody, 30 N. Y. 226 j S. C. 4 Bosw. 210; Gillett v. Ellis, 11 Ill. 579; Mer. d: Man. Ins. 00. v. Shillito; 15 Ohio St. 559; Toledo Ins. Co. v. Speares, 16 Ind. 52; ],feaher v. Lufkin, 21 Tex. 383; The Watchful,1 Brown, Ad. 469; The Wm. Gz'llum,2 Low. 154; Wood v. Phronial Ins. 00. 1 FED. REp. 235 ; ScM. May d: Efla, 6 FED. 628. The value in case of jettison is the value at time ofjettison,estimated at cost price, without regard to possibility of being saved. Johnson v. Ohap/nan, 19 C. B. (N. S.) 563 j Barnard v. Adams, 10 How. 270; Rogers v. Mechanics' Ins. 00.2 Story, 173; Rogers v. }'f8chanics' Ins. Co. 1 Story, 603; Lee v. Grinnell,5 Duel', 400; Davj8 v. Garrett, 6 Bing. 724. Declarations which are a part of the res g8staJ are admissible. 1 Wharton on Ev. § 259; Flint v. Transp07'tation Co. 7 Blatchf. 536, 13 Wall. 3; Insuranu 00. v. Moreley, 8 Wall. 397; Castner v. Slicker, 33 N. J. 95; State v. Wiener, 17 Kan. 298.
T. W. Hall, for respondents, cited:
Machlachlan's Merchants' Shipping, 498-618; 3 Kent, 216; The Delaware, 14 Wall. 596; The Niagara, 21 How. 23; Lawrence v. Minturn, 17 How. 111; Smith v. Wright, 1 Caines, 43; Cram v. Aiken, 13 Me. 229,; SprO'lJJl v. Donnell, 26 Me. 185; Dodg8 v. Bartoll, 5 Greenl. 286; Doane v. Keating, 12 Leigh, 391 ; Schelfdrd v. Wilcox, 9 La. 33; Belle. 2 Bissel, 197; Parsons, Mar. Law, 316.
MORRIS, D. J. The libellant seeks to recover the value of 126 head of beef cattle shipped by him on board the Spanish steamer Enrique, 2,300 tons, at Baltimore, to be carried to Liverpool, and which were cast overboard on the voyage. By a contract dated December 2,1880, the agent of the steamer agreed with the libellant, a large cattle dealer of Chicago, to let to him the deck freight room of the steamer for about 100 cattle on deck, the freight to be 60 shillings per head, payable in cash hefore sltiling, and whether delivered or not delivered at Liverpool. The contract provided that the space for each beast should be not less than eight feet by two feet six inches; and that the stalls should be constructed at the ship's expense, to the I satisfaction of the shipper and of the underwriters' inspector. It further provided with particularity for furnishing by the ship of water for the cattle, gangways for loading and unloading, space under deck for forage, free passage out and back for drovers, for six days' notice' to shipper of steamer's readiness to receive the animals, and of the exact number the ship would take, alid that the
should pay any additional cost of keeping .the animals if the steamer did not sail at the expiration of the notice. One hundred and twenty-six head of cattle, many of them weighing over 1,700 pounds, were duly put on board, under the superintendence of an agent of the libellant, on the eighteenth of December, 1880, filling up all the available deck room of the steamer, both forward and aft. The freight was paid in advance, and thereupon four bills of lading, all of the same tenor and effect, were delivered to and indorsed "accepted" by the libellant's agent. These bills of lading, among other things, stipulated that the cattle were to be carried on the upper deck, and that the steam-Ship owners should not be responsible for any loss that might arise through the cattle being washed or jettisoned. They also statfld that the acceptance thereof was a recognition of the bill of .lading as the contract' binding both carrier and shipper. They contained in substance the same stipulation as to the contract for the care and feeding and watering of the catde, and the usual exceptions again&t .fire and the perils of the for liberty to tow and assist vessels, etc. The steamer sailed with a general cargo, :p,tPtcipl111y grain,and provisions, and about 10 hours after leaving the capes of the Chesapeake very tempestuous weather, which lasted .from the night of the 20th until some time in the night of the 24th, and in the that prevailed during that time the steamer shipped heaTY seas, which broke down many of the stalls, carried. away portion .of the rail, and did. some other damage to the ship. In consequence of the violence of the storm some of the cattle were washed overboard. Some were drowned on deck, and some were badly crippled and injured. Almost from the commencement of the storm it was impossible to feed or water the cattle,and the rolling of the ship prevented those which were not injured from standing. On the 21st five were found dead, and thrown overboard. On the 22d, the storm not abating, the ship was have to, and all the cattle aft of the foremast were cast over; and on the 24th, the storm still continuing, some 20 or 30 beasts remaining in the forward part of the deck, and which
had been in some mp,asure protected by the forecastle deck, were cast over. When the stbrtll abated, on the night of the 24th,· none of the cattle were left on board. The libellant claims that the cattle were thrown overboard, not because they were dead or dying, and therefore unfit for further transportation, as is alleged by the respondent, but because it was necessary to jettison them to save the vessel and the rest of her cargo from impendingdanger. Thelibellant further claims that the acceptance of the bill of lading by his agent, who was appointed simply to attend to putting the cattle on board, was without authority and not binding upon him, and that the live-freight contract, and not the bill of lading, is to determine and further; that in any event the exception in the bill of lading for 10B8 From the cattle being jettisoned is void as 'against public policy. Counsel for libellantl1ave strenuQuslycontende& that the paper called a "live-stock freight contract" is to be treated 'as a charter-party for the use of the deck of the steamer; and the rights of the 'parties to 1t "are that being a not to be affected by the terms ofihe bill onading. ; ;To this I cannot agree. The cattle were to:bEi'brought from"Cliicago to Baltimore for shipment, and as keeping them there would be attended with eipense;'theshipp'er'required to kriow fore they left Chicago that" the steamer would' be ready to take them, the number she woUld take, the amount of freight, and the arrangements for their care and subsistence. These matters are very carefully set out in the contract, but it contains none of the exceptions for the protection of the shipowner usually to be found in charter-parties and bills of lad· ing; and I cannot think it was intended to supersede the usual bill of lading. If it did, the ship-owner would, in effect, have become insurers of the safe delivery of the cattle, a result never contemplated by either party. The stipulations of the bill of lading do not contradict the contract, but are supplementary to it. It is shown that the libellant had made several shipments of cattle from Baltimore to Liverpool by steamers of this same line after making similar contracts with the same agents, and that in every instance precisely
similar bills of lading, in BetBof four, were given and .accepted. The libellant's agent testified that of these four he had always sent to the libellant at one to the agent of the of the cattle, one to the consignees at Liverpool, and h.ad given the other to the foreman of the drovers on board. The case does not, as it seems to me, come within the prin. ciple of any of the cases cited,. in which it has been held that, as between ship-owner and charterer, the charter-party should override the .bill of lailing in case of conflict between them. If, then, bill of lading is to be treated as the evidence of the final contract between the parties in those particulars in which it is not found to contradict the previous contract, we are .toconsider its effect is to release the ship-owner from contribution for the cattle if thrown overboard to save the ship; and, ifthat is its meaning, is it such a limitation of the carrier's liability as the court should nphold? It is true that the defence made by the answer rests mainly upon the allegations that the cattle were cast overboard, not becaus.ethey. endangered the ship, but because they were either already dead or so nearly so as to be beyond hope of recovery. But this iss;ue presents a question offact naturally diffi,cult to determine from the evidence.Unquestionably numberll of. the cattle. are shown to have been dead, or dyinglwhen thrown over. All were greatly exhausted from want of food and drink, from the violence of the blows they from the broken timberll of the pens and from each other, andfro,lll being thrown about by the pitching and rolling of the vessel, and from being drenched with salt water. Whether ,any, and if so, how many, it would have been possible, when the storm abated, to have resuscitated and delivered in Liverpool in merchant'able condition, it would be determine. The five drovers employed by libellant, who on board in charge of the cattle, contradict the officers of the steam-ship, and now undertake to say that a or at all events the 20 or 30 which majority Qfthe were near the fonicastle hood·. could have heen saved, but it is evident they are speaking now with much more confidence
than they did when first' queationedoIi. this In the midst of a storm of snchduration, with pens broken down, the cattle loose and lying pl'ostrate;and the' seas washing over the deck, it is hardly to be stipposed that a very critical examination of the beasts was made. ' There is no suggestion that: they were throWn overboard wantonly, and the effort of the libellant has been to show, from statements alleged to have been made to the d:rovers by the engineer, speaking for the 'Captain, (whO could 'speak hardly any English,) that he considered it essential to the safety of the ship that the cattle should go, giving as the reason that, the pens having got'loose, the whole deck load was liable to shift to One side with the violent rolling of the ship, and also because theeattH:l, having got out of the pens, were likely to become entangled with the rudder chains on the deck. If the statements'of these witnesses for the libellant are 'taken for tr\}th,' they make a case in which the cattle were cast over to save the vessel, and indeed the whoJe' evidence shows a condition 01 peril in which jettison of such a deck load was justifiable. In the argufuentby counsel the question of the liability of f6t contribution for jettison was fully argued,'and I am 'inclined to think it is the priucipal issue in the case: . The language of the bill of lli<1ing is: "Steam"ship Owners are not responsible for any loss ai'iaethrough cattle being jettisoned." This exemption, if the definition of: the word "jettisoned" were substituted for the word itself, would read: "Ship-owners'are not'responsible for any loss that may arise through cattle being voluntarily thrown Over'board in case of extreme peril, in order to lighten the ship· and preserve her.'" ., " , In Crooks v. Allen, L. R 2 Q.B. Dhr. 3S;'and -SChmidt v." Steam·ship Co. 45 L. I;'Q. R 646, a bill of lading foiU goods to through to their destiJ:iatibn.'by steam'-ship' and railtoadcon:tainedan exoeptionfrom loss' by "fueon board." This was' held tt>' hlfie reference to the obligatidtIof' the ship-owtleras carrier and to his co"ttatlt as :darl'ier' to deliver thtl goods, and as not intended to t'akeawaytlie'
ordinary liability tocontribllte in general average as owner of the ship when a fire had occurred on board and the goods had been injured, not by the fire, but by water thrown down into the hold to extinguish it. Such a construction cannpt, it seems to me, be put upon the bill of lading in this case; for, unless the exemption for cattle jettisoned have reference to contribution, it can have no meaning at all, as, under the ordinary exception of perils of the sea in case of jettison, the ship could only be held for contribution. It remains, then, to consider whether this restriction of the ship-owner's liability is so unreasonable, unusual, and inconsistent with sound public policy, looking- to the situation of the parties, the court shoulp refuse to uphold it. It is to be borne in mind that this limitation of responsibility in reference to a deck load is an exception to an exception, and that by it the. general rule is ma-de to prevail; the general rule being that goods carried on deck, though thrown over for the common benefit,give no claim for contribution. To this acknowledged and ancient rule exceptions have been recognized in more modern times, in cases where, by settled usage of trade or by the agreement of the parties, it is shown that the goods were properly to be carried on deck. The transporting of live cattle across the Atlantic is shown to be a new undertaking. The present libellant states that he thinks he was, perhaps, among the first to attempt it, which was only three years ago. The earlier shipments were made in the summer months, and proved encouraging, but shipments in the winter months, as in this instance, are still to be considered, I think, rather an experiment than an established business. The risks are known to be exceptionally great. A high rate of freight is exacted in advance, determined by the number of cattle put on board and not by the number delivered, the underwriters demand a high rate of connected with the venture is matpremium, and ter special agreement rather than of settled usage. -Under these circumstances, why should not the parties be left to make their own bargains with regard to the transportation
across the sea. They deal on terms of equality, a.nd neither needs protection from the other., In this case, moreover, the libellant had on several previous occasions accepted similar bills of lading, and only by great, inattention could he, or those to whom he entrusted his business, have failed to notice the limitation clause now resisted. It does not appear, therefore, that the limitation ·was an unexpected, unusual, or novel one. Onthe contrary, it is such an one as,-it seems to me, t.he shipper might reasonably have expected the bill of lading to contain; and, however hardly it may result against the shipper, I cannot see that with regard to a deck load, and looking to the general rules of maritime law with regard to deck lading, it can be said to be against public policy. Being of opinion, therefore, that by the exce'ption in the bill of lading the ship-owner is exempted from 'oontribution for the cattle jettiaoned, I dismiss the libel.
(District Oourt, S. D. Florida. May, 1881.)
When valuable service has been performed, which renders the tinal saving of property more certain or easy, continued el1:ertion is not necessary to entitle the original salvora to a portion of the salvage awarded. .
Libel in Admiralty. G. Browne Patterson, for libellants. L. W. Bethel and J. B. Browne, for reRpondents. LOCKE, D. J. The bark Tolomeo was discovered a.ground on a point of the Florida reef, near Tortugas, and boarded by the libellants' crews of four smacks, who found her abandoned and on fire, burning fore and aft, the cabin and much of the deck having been burned and fallen in. Having nothing but a few ordinary buckets, they could do nothing towards putting out the flames, but carried out an anchor to prevent the vessel drifting off, cut away the rigging of the v.7,noA-32