270
FEDERAL RE1'ORTER
I
vol. 53.
TI:tE
ROANOKE. December 12, 1892.) FROM LrABrLITY-
UNION MARWE INS. CO. et 81. v. '.rHE ROANOKE. (DistrM court, E. D. Wlscoillsin. 1.' Eimtf"n:'<rBrJ..L "!,,.,"'j!: , ;,' .,' ',,' " ' ,
'·Abi.lJ,Of lalling Which exempts the ship and owner from loss arising frd)ll, any danger oraccldent mcldeIit "to navigation or transportation, receipt,dellvery, storage, or wharfage, any fire, collision, explosion of any Itmd, )vetting,. combustion, or heating," does not include an exemption fJ'ot»llabUity mgen¢ral average. Exemption from theordinllry lJaOilittes.qt a carrier should be expreSsed m clear and definite language. 2. S,Al<lE.·., , " ..... . A,JllU,of l,ading exempts the shlpand owner from loss by "fire 01' 40es not inclUde an eXeJIlP1:!-0ll from liability. to contribute in geneJ;lil r4\v;erai{e tor loss of cargo by ponred thereon to extinguish a fire.
AVERAGE:',. ' .
. .'
by the Union Marine Insurance Company against the steamer Roanoke and others to recover in general aver· aget , .,yertain exceptipIlI:l filed. to the libel were overruled. J'46'Fed The ca'n'sewas thel'eaftersubmitted upon statement (jffacts. .Decree for libelants. l': !.: JohnC; Richberg, for libelant. George'D. Van Dyke, for the Roanoke. 'j' '
r,
. ! ,,
JENKINSjDistrict'Judge, (orally;)' The libel was filed by certain underwriters against the Roanoke; ina case of general average. The cargo of the vessel having been found to be on fire, the fire department where the vessel'then lay, was called into requisiof the city of and by means, andhy the subsetion, quent the and.,crew ofthe vessel,the fire was extinguished,tBe vesseLwas saved,and a large part of ·the cargo Wlh'l saved at the expense of a certain. part of the cargo, which was de· The libel was filed against stroyed bytl1e. ",etting from thev:essel,by theundet#i'li:ers, who had paid the owners of the cargo so destroyed, to recover in generataverage for the amount which the vessel toward the common purpose .of saving ship and cargo. Exceptions were filed to the libel, and the question was thereby whether a destruction of cargo by wetting was a sub· average as it was said, there ject was no sele.ction for sacnfice,and also because by the act of congress it was p:ooviqed·. owners should n()t be liable in case of loss wereoverrtP-ed by the court, or damage byfire.'l'b.ose (4:6 Fed. Rep. 297,) and it was held that there need be no manual selection; that the destruction of a part of the cargo, for the common purpose of saving the ship and cargo, was a subject of general average; and that the act relieving common carriers from liability from fire applies only to the general liability which would arise otherwise from any destruction of property in carriage, and did not apply to the matter of general average. After the exceptions were overruled, answers were filed, ana thecause was submitted to the court upon an agreed statement of facts..
THE ROANOKE.
271
only new questionaPising upon the hearing is whether the bills of lading under which tills cargo· was exempted the vessel from contribution in general average. The stipulations of the bill of lading, so far as they are material to be considered, are these: It was agreed that the transportation and forwarding of the for the consideration stated is subject to the conditions of the bills of lading, which contain a large number of stipulations. One was that the carrier should not be liable "for any loss or damage susta,illed by any person, or for any loss or damage to all or any of said property, arising from, caused by, or connected with anyone or more of the following mentioned causes Or things, to wit: Any peril, dangel',. or accident of or incident to navigation or transportation, receipt· or delivery, storage or wharfage, any fire, collision, explosion of any kind, wetting,combustion, heating; nor shall there be any liability on the part of .any carrier, vessel, or her master, for any loss or damage herein mentioned, unless the same shall affirmatively, and without presumption, be proven to have been caused by the negligence of the person, party, or vessel sought to be made liable." And a third provision is that, when the party or the vessel should be held liable, "the carrier or the' person liable, who should so sustain loss in consequence of owning, chartering, or being interested in or as to said vessel, shall have any insurance, however effected, on, as to, or the property lost or damaged, and all the benefit and ad· vantage to be derived therefrom." There are three questions which arise upon, this hearing: (1) Whether it is competent for a common calTier to exempt itself from liability as against general average contribution. . (2) Whether the clause Which gives to the carrier the benefit of any insurance upon the propl.'rty precludestlle insurers from maintaining an action to recov for such contribution. (3) Whether this bill of lading dd 'J' s in fact purport to exempt carriers from such liability. The court entertains grave doubt whether common carriers shon1ll be permitted to exempt themselves from such liability. It is tru9 the supreme court of the United States has sustained the right (,f common carriers to exempt themselves from their common-law lia· bilities not growing out of their own negligence; but this matter of general average rests upon very peculiar foundation, and can hardly be termed a common-law liability. The master is made the agent. in the law, of the vessel, Of the cargo, of the parties owning the cargo and owning the vessel, and given the discretion in time of emergency to sllbject the one to loss for the preservation of the other. If in case of storm it becomes necessary, for the preservation of ship and cargo, to throw overboard part of the cargo, the law compelscthat which is saved to contribute for that which was lost; and, as lam inclined to think, it would be seriously against the public policy of the law of the sea to permit carriers to say that the ship shall be exempt while the cargo remains subject to contribution. In the next, place the court is of opinion that these bills of ladil'g <10 not undertake to exempt the carrier from liability to general aver· age. They exempt them from loss of damage by fire or wetting. It nndertakes. in many words.. to exempt tile COlllillon carrier from
The
272
FEDERAL REPORTER,
nem.olyall the common-Ia.w liabilities. And ,the court must consider the fact that these stipulations are all printed in very small. type, so that it would require the shipper of cargo to make a very minute examination· of the paper, before shipping, to ascertain just what liabilities were imposed upon the carrier, and what are exempted; and the court must also take into consideration the. fact that generally bills of lading are delivered after the shipment of -cargo, not be. fore; and while upholding the right of the carrier to make his contrar.t audexempt himself from .common-law liabilities in large degree, yet these: terms of limitation and restriction must be expressed clearljhwddecisively, that parties may know the terms of their contra.ct. . "generaLaverage" have been known for centuries in the law- of the.sea; been·well understood by all engaged in traffic upon,.the sea. They ateis4nple and expressive terms"and the court is not, inclinee,byany nice or dubious construction of an obscurely wordedinstru'ment,. to . exempt the carrier fromr,esponsibility for that whiCh. he .oughtequitably to bear, when, if he could legally exempUHmselfby contract,'!such exemption could haive been expressed in .well·Ui:nderstood 'phrase. The court cannot believethl:\.t it was designed by theparn.es .1:0: this contract that the carrier was to be relieved of that equitable.\cll:\.im of contl'ibution for the saving of the ship.. Had it been so. designed, it would not have been expressed in such way that it must be arrived at only- by very rUceand subtle construction ,and distincthm of words, w.hensimple and well-tmderstood expressions would have better answered the purpose. With respect to the. :claim. that this provision covers such a loss as :the present, Lam inclined to the opinion that it is ruled by the decisions which .were'referred to by the court upon the previous hearing of this case, where similar provisions in the 8tatute were claimed to the carrier'frOID general average contribution. The court:.; in England ruled that the exemption of cargo from liability for injury occasioned b;r fire 01' !Wetting coITesponded wi th the ordinar;r' exemption from the accidents of navigation, and did not work exemption from liability to contribute. towards general average. The language of the hills Of lading is very similar to that employed in that act of congress and -the' English act, with the exception that here there is a provision' iliat the carrier shall have the benefit of the insurance arising from the liability mentioned; but the court is not prepared to say that that claUSe is sufficient to give the carrier exemption from a liability which is imposed by law in the interest of the property of all concerned, where a loss has been occasioned by the sacrifice of a part of the property to save the whole. There will, therefore, be a decree.for tile libelants for the sum of $2,505.62, with interest from the tiling of the libel.
'raE ECLIPSE.
273
THE ECLIPSE, MARTIAL et al. v. THE ECLIPSE et al, (District Court. N. D. California. No. 10,41,5, 1. SEAMEN-WAGES-PAYMENT IN AD'\'"ANCE.
December 14, 1S92.)
The agent of certain boarding-house masters made an agreement with the -owner of the Eclipse to furnish a crew of 12 men for $200, and took from suc)J.. crew orders on the captain, payable 24 hours after the salling of the. Eclipse on a voyage from San Francisco to a port in British Columbia. ,The orders, the ostensibl!! objl'ct of which was ,to pay bills due for board and outfit, were drawn in favor of the masters, but in every instance the sum named. in the order exceeded the indebtedness of the seaman. The orders were paid when due, and the agent re:ceived. $32 from boarding-house masters, who kept the balance. At the end of the voyage the owner paid each seaman, deducting the amount of his order, and took a receipt in full. Held, that in a court of admiralty the seamen were entitled to be paid their full wages, reduced by the actual sums due for board and outfit instead of by. the amount of the orders, notwithEtanding the giving of the receipts in full. Act June 26, 1884, as amended by Act June 19, 1SB6,forbidding the payment of advance wages to seamen except for certa1n purposes, and according to allotment made under regulations prescribed by the secretary of the treasury, must be construed as applying to the trade between the west· ern coast all-d the ports of British Columbia, especially in view of the fact that for more ,than six years this construction has been adopted by the secretary in the rpgulatlonil prescribed by him. The State of Maine, 22 Fed. Rep. 734; U. S. v. King, 23 Fed. Rep. 13S; and The Samuel E. SprIng, 27 Fed. Hep. 71:l4,-distinguished.
2.
SAME-CONSTRUCTION OF STATUTE.
In Admiralty. Libel by Thomas Martial, Nils Hansen, Ambrose Pablete, Thomas Hosford, Frank Wallace, George Peterson, Emil Menendez, and William Morris against the ship Eclipse for balance of seamen's wages. Libel dismissed as to libelants Menendez and Mor· ris. Decree for other libelants. H. W. Hutton, for libelants. S. Bloom, for claimants. MORROW, District Judge. This is an action for balance of seamen's wages. The libelants shipped on board the ship Eclipse, at the port of San Francisco, on the 7th day of SfJptember, 1892, for a voyage to Port Angeles, in the state of 'Vashingion, thence to Nanaimo or Departure bay, in British Columbia, and return; wages, $25 per month. The voyagt\ was completed, and libelants discharged in the port of San Francisco, November 1, 1892. The wages of each seaman for the .oyage amounted to $45.83. During the '\'"oyage, some of them received small sums of money and a few articles from the slop chest, but the present controversy is with respect to deductions made from the wages on account of certain advance notes or orders given by the libelants before the commencement of the voyage. It appears that one John Savory, acting for certain boarding· house masters, made an agreement with Andrew Anderson, the man· aging owner of the vessel, to fUl'nish him with a crew of 12 men for v.53F.no.2-18