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1924 A. M. C.

CARGO DAMAGE–138. Effect of Deviation-BILLS OF LADING—1951.

Value Clauses. An unjustified deviation nullifies the carrier's limitation of liability clauses

embodied in the bill of lading, including the $100. clause.

BILLS OF LADING—1214. Harter Act, & 3—Negligent Navigation. The shipper has the burden of proving a negligent stranding. Stranding

on a charted rock between Sydney, C.B. and Halifax, after navigating all night in a fog, and taking only one sounding, (the master being

unfamiliar with the coast) was due to negligent navigation. CARGO DAMAGE-14. Citrate of Lime.-CARGO DAMAGE–125. Protection

of Cargo after disaster. Carrier was negligent in leaving casks of citrate of lime in a flooded hold

for six weeks after reaching safe port for permanent repairs, as the casks, although very large and heavy, could have been removed to a dry place when the vessel was first on drydock for survey.

CARGO DAMAGE_1351. Deviation to load Cargo. Whether Lisbon is on the usual course from the Mediterranean to New



JOSEPH A. BARRETT of Counsel), for Claimant-Appellee. MORRIS, D. J.:

In June, 1920, the S. S. Willdomino, lying at Messina, Italy, took on board for transportation to New York 503 casks of citrate of lime in good order and condition of which Citro Chemical Company of America and Charles Pfizer & Company, Inc.. were the owners and consignees of 168 and 335 casks respectively. When delivery was tendered at New York the merchandise was so damaged that the owners refused to receive it, abandoned it to the ship, and filed separate libels against the ship to recover their loss. Convoy Steamship Company, Ltd., appeared as claimant, filed stipulations for value and a cross libel against the Pfizer Company to recover for the 335 casks the freight money which, because of the damage, that company refused to pay. The Court below tried the cases together, dismissed the libels against the ship and on cross libel entered a decree against the Pfizer Company for the amount of its freight money. An appeal to this Court has been taken from each of those decrees.

After leaving Messina and before arriving at New York the Willdomino put in at Gibraltar, Lisbon, Ponta Delgada in the Azores,


North Sydney, Cape Breton, and at Halifax. While proceeding from North Sydney to Halifax on July 24th she struck a reef or submerged object and tore a large hole in her bow. Water entered and almost completely filled lower No. 1 hold in which the citrate of lime stowed. With some assistance from a salvage tug the vessel arrived at Halifax. After certain examinations had been there made and sand ballast put on the stern to raise the bow somewhat she left Halifax in convoy of a tug and arrived in New York on August 7th. The cargo other than the citrate of lime was discharged. She then proceeded, August 25th, to dry dock for repairs. While repairs were under way the steamer was shifted from dry dock to wet dock and back again several times. With each shift the water ran out of or into the hold in which the libellant's goods were stowed. Repairs were completed on October 2nd. Thereupon the citrate of lime was tendered to the consignees. It was then almost a total loss.

The decisive issues are those raised by the separate and distinct defenses set up in the answers of the claimant. The first of those defenses is that the damage, if any, to the merchandise of the libellants was due to one or more of the causes from the consequences of which the ship and carrier were made exempt by the bill of lading which provides in part:

“It is mutually agreed as follows: First. The Ship and Carrier shall not be liable for loss or damage occasioned by

the perils of the seas or other waters, * * *

unseaworthiness of the ship even existing at time of shipment or sailing on the voyage, provided the owners, have exercised due diligence to make the vessel seaworthy, * * *

“collision, stranding, or other accidents of navigation of whatsoever kind, even when occasioned by the negligence, default or error in judgment of the pilot, master, mariners, or other servants of the shipowner. * * *

nor for any loss or damage occasioned by causes beyond his control. * * * * The claimant asserts that those provisions are valid-some at common law and the remainder by virtue of Sec. 2 of the Harter Act.

The second affirmative defense is that the damage to the merchandise of the libellants was due to the stranding of the vessel; that the libellants have failed to establish that the stranding was due to 1924 A. M. C. negligent navigation but that if they have so shown the claimant has proved that it, the claimant, exercised “due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied” and that consequently the ship and the claimant are exempt from liability to the libellants by reason of the third section of the Harter Act.

A third distinct defense is the stipulation of the bill of lading limiting liability to $100 per package which reads thus:

“ Third: The value of package receipted for as above does not exceed the sum of $100. unless otherwise stated herein, on which basis the rate of freight is adjusted."

The libellants contend that the stranding of the Willdomino was due to negligence in navigation and that the stipulations in the bill of lading against liability for negligence were void and of no effect; that the owners of the vessel did not “ exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied ” in that, by direction of the owner, as libellants contend, she sailed from Gibraltar, from Lisbon, and from Ponta Delgada without sufficient fuel and that consequently, the third section of the Harter Act is without application. The libellants likewise contend that the ship in going to Lisbon, to Ponta Delgada and to North Sidney deviated from the voyage specified in the bills of ·lading and that thereby the bill of lading clause limiting liability to $100 per cask and also all exemptions from liability created by law or contained in the bills of lading were nullified and the vessel made absolutely liable as at common law for the safe transportation and proper delivery of its cargo. The libellants further contend that even if damage to the goods was brought about by a cause from the effect of which the carrier was validly exempted it was nevertheless the duty of the carrier to exercise reasonable care and diligence to protect the goods from further or additional damage and this, it asserts, the carrier failed to do.

In the matter of the cross libel against it for freight, the Pfizer Company asserts that at the time delivery of its consignment was tendered its goods had been so far damaged that they were no longer in specie and that consequently it is without liability for freight.

The Willdomino was a general ship engaged in the common carriage of merchandise for hire. A carrier of goods by water, like a 889. carrier by land, is an insurer and, although no actual blame is imputable to it, is absolutely liable, in the absence of a special contract or statute limiting its liability, for all damage sustained by the goods entrusted to its care unless the damage is occasioned by the act of God, the public enemy, the public authority, the fault of the shipper or the inherent nature of the thing shipped. Clark vs. Barnwell, 12 How., 272, 279; 24 R. C. L. 1312. The law, however, recognized the right of the carrier to limit in many particulars its common law liability by special agreement or stipulations in the bill of lading. But in America it was established that a common carrier by sea could not so exempt itself from liability to the owner of cargo for damage arising from the negligence of the master or crew of the vessel. The Jason, 225 U. S. 32, 49. To meet the ever increasing attempts further to limit the liability of the vessel and her owners by inserting in bills of lading stipulations against losses arising from unseaworthiness, bad stowage, negligence and other causes of liability by which the common law responsibility of carriers by sea was being frittered away, the Harter Act (27 Stat. 445), was passed. It was designed to fix the relations between the cargo and the vessel and to prohibit contracts restricting the liability of the vessel in certain particulars. The Delaware, 161 U. S. 459. By the first section of that act contractual clauses whereby the carrier “ shall be relieved from liability for loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care or delivery ” of any of the cargo are made null and void while the last clause of the second section makes unlawful any agreement “whereby the obligations of the master,

officers, agents or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened or avoided.” These two sections, in their general purport, so far as respects the care and delivery of the cargo, are not essentially different. Calderon vs. Atlas Steamship Company, 170 U. S. 272, 277. The first remaining part of the second section of the act enables a vessel and its owner to obtain, hy contract, relief from absolute liability for lack of seaworthiness, but not from the obligation “to exercise due diligence to properly equip, man, provision and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage." By virtue of this section liability for losses to cargo caused by unseaworthiness may be contracted away provided the owner uses due diligence to make the vessel seaworthy, 1924 A. M. C. but liability for loss to cargo caused by unseaworthiness arising from lack of diligence on the part of the owner cannot be contracted away. The Southwark, 191 U. S. 1; The Carib Prince, 170 U. S. 655.

By the third section of the Harter Act Congress provided that if the owner of a vessel shall exercise due diligence in making his ship “ in all respects seaworthy and properly manned, equipped and supplied” neither the owner nor the ship shall be liable to the shipper for damage to cargo resulting from the navigation or management of the vessel, however faulty. The Irrawaddy, 171 U. S. 187. This section, unlike Section 2, is self-executing. United States vs. Hamburg-Amerika Gesellschaft, 212 Fed. 40, 44. Again Section 2 deals with liability for damage caused by lack of seaworthiness, while Section 3 deals with liability for damage caused by “faults or errors in navigation or in the management of said vessel.” The burden is on the ship owner setting up exemption from liability under the third section of the act to prove that he exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped and supplied. The Wildcroft, 201 U. S. 378; The Southwark, 191 U. S. 1. In Int. Nav. Co. vs. Farr & Bailey Mfg. Co., 181 U. S. 218, 226, the Supreme Court said:

even if the loss occur through fault or error in management, the exemption cannot be availed of unless the vessel was seaworthy when she sailed, or due diligence to make her so had been exercised, and it is for the owner to establish the existence of one or the other of these conditions." It follows, we think, that if the carrier fails to meet that burden he is liable for damages to the cargo resulting from negligence of the master and crew in the navigation or management of the vessel and the carrier is so liable wholly without regard to whether or not there was any causal connection between the lack of due diligence to make the ship seaworthy in all respects and the loss caused by the negligence in navigation or in the management of the vessel.

How stand the cases at bar when measured by the foregoing principles of law? The first affirmative defense is exemption from liability by reason of the stipulations in the bills of lading. Of these stipulations the most pertinent, in our view, are (1) that pertaining to the unseaworthiness of the ship; and (2) that pertaining to negligence in the navigation or management of the vessel. We think the

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