1924 A. M. C. of law to the owners of the vessel. Int. Nav. Co. vs. Farr & Bailey Mfg. Co., 181 U. S. 218; British & Marine Ins. Co. vs. Kilgour S. S. Co., 184 Fed. 174, 177. It is likewise so attributable in fact. While the Willdomino lay at Gibraltar the master received from the claimant the following cablegram: "Your coal requirements excessive cost of bunkers Gibraltar very high make accurate measurement remaining bunkers if not enough to make North Sydney take only enough to reach there cut down consumption in every way if fuel runs short reaching coast cut out one boiler." As the vessel was not seaworthy when she sailed from Lisbon or from Ponta Delgada and as the claimant did not exercise due diligence to make her seaworthy before leaving those ports the conditional exemption provided by section 3 of the Harter Act cannot be availed of if the damage to the cargo occurred through the fault or error in navigation. The burden of proving that the stranding was due to negligence is upon the shipper. Clark et al. vs. Barnwell, 12 How. 279. Though the master was an experienced navigator who had had a sea experience of twenty-three years, who had held a master's certificate for twelve years and who was doing at the time of the stranding everything that he thought necessary, yet in view of the evidence we are constrained to conclude that the stranding was due to negligent navigation. The Willdomino left Sydney for Halifax at about one o'clock on July 23rd. The master had never been over the course from Sydney to Halifax though he had been from Lewisburg to Halifax and from St. Johns to Halifax. The currents along the coast off which his course lay are treacherous. The coast is very tortuous and rugged and is recognized as a dangerous one. The only bearing obtained after leaving Sydney until the vessel stranded was from Seatari Lighthouse at 5:45 p. m. At 8 p. m. she ran into a thick fog which continued throughout the night and until after the stranding. After entering the fog speed was reduced and the whistle blown. The master who was proceeding by dead reckoning and who believed that the vessel was on her course 20 miles off shore took no soundings until 4:30 a. m. As that sounding showed 91 fathoms it confirmed, as the master thought, his judgment as to the position of the vessel, and no more soundings were made. Two hours later the vessel 889. While there was some sug stranded about seven miles off shore. gestion in the evidence that the object struck was a wreck or other uncharted submerged object a careful examination of the evidence convinces us that there is no room seriously to doubt that the stranding occurred on a charted reef. We think peculiarly applicable to these circumstances the words of Judge Benedict in The Alpin, 23 Fed. 815, 818: 66 # ** He [the master] *** knew or ought to have known, that he might be under the influence of a current running towards the land. Moreover the weather was thick, and he knew that he did not know his position, and that an approach to the land would be indicated by the soundings. Under such circumstances common prudence required him to sound. Had he observed this common and, under the circumstances, necessary precaution, the lead would have informed him that he had been mistaken as to his position, and was sailing close to the lee shore; and with this knowledge he could have prevented the accident that shortly occurred." Other cases to the like effect are The Montana, 17 Fed. 377; The City of Para, 44 Fed. 689; Union Ins. Co. vs. Dexter, 52 Fed. 152; The Express, 48 Fed. 323. The claimant contends, however, that the master had no reason to doubt that he was on his course particularly after taking a sounding at 4.30 a. m. and finding 91 fathoms and that consequently he was not negligent in failing to take other prior or subsequent soundings. But one sounding affords little information and, standing alone, may be deceptive. It is only by comparison of successive soundings that the position of the vessel can be ascertained with reasonable certainty. Again while it is quite true that negligence must be determined upon the facts as they appeared at the time and not by a judgment from actual consequences which were then not to be apprehended by a prudent and competent man, yet as was said by the Supreme Court in The Germanic, 196 U. S. 589, 596, *it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the Court, is an external standard, and takes no account of the personal equation of the man concerned. The notion that it should be co-extensive with the judgment of each individual,' was exploded, if it needed exploding, by 1924 A. M. C. Chief Justice Tindal, in Vaughan vs. Menlove, 3 Bing. N. C. 468, 475. And since then, at least, there should have been no doubt about the law. Commonwealth vs. Pierce, 138 Mass. 165, 176. Pollock, Torts, 7th ed., 432." We think that the stranding resulted from the failure to take soundings; that such failure was a fault or error in navigation or in the management of the vessel and that Sec. 3 of the Harter Act cannot be availed of to exempt the claimant from liability for the damage to libellants' goods occasioned by the stranding. It was the duty of the carrier to exercise reasonable care, diligence and activity in preserving from further damage any portion of the cargo that had been damaged by the stranding so far as it could be done consistently with the carrier's duty to the owners of other portions of the cargo, 24 R. C. L. 1306, Harter Act, Sec. 1. Propeller Niagara vs. Cordes, et al., 21 How. 7, 26. The entire damage to the citrate of lime was brought about either by the stranding alone or by the stranding and by subsequent fault or failure properly to care for it. If it was impractical, reasonably, to do anything to protect the citrate of lime between July 24th, when the hold in which it was stowed was flooded as a result of the stranding, and October 2nd, the date upon which the repairs to the vessel were completed and delivery of the lime tendered, that is, if there was no negligence, fault or failure in the proper care or delivery of the lime during that period, the approximate cause of all the damage sustained by it was the negligent navigation of the vessel. If, however, during that period there was a lack of proper care to protect it from continuing and additional damage, such lack of care was the proximate cause of such additional damage. We think there was such lack of care. It is probably true that while the water remained in the hold it was not practical and that the claimant was not required to employ divers to remove the casks which had a weight of 1,500 to 1,700 pounds each. It is probably true that the hole torn in the bow of the vessel was of such size and shape that it was not practical, while the vessel remained in the water, to plug, cover or patch the hole in a way usual with smaller holes. It probably was not practical to exclude the water from the hold by compressed air. But there was another method both practical and reasonable, so far as we can see, by which the lime could have been protected from ever increasing damage. On August 25th the vessel went into dry dock for an examination for 889. repairs. As the remainder of the vessel's cargo had then been discharged and as the ship's power and equipment with which the lime had been loaded and stowed at Messina was available for its removal from the hold while the vessel was in dry dock it could have been and, as we see it, should then have been removed from the hold that was open to the sea and placed on deck or in an undamaged hold. It could then have been delivered as soon as the vessel came from the dry dock the first time. Instead it was permitted to remain, wholly unprotected, in the damaged hold until repairs to the vessel were completed on October 2nd and to be reimmersed in the interim during the periods the vessel was not in the dry dock. In this we think there was lack of proper care. But as the claimant is liable for the entire damage to the goods, whether caused by the negligent navigation or by the subsequent lack of care or by both it is unnecessary to ascertain the portion thereof attributable to each cause. The liability of the claimant is limited to the value of the goods fixed in the bill of lading, $100 per cask, unless that limitation was nullified by an unauthorized deviation of the vessel from her legitimate and contemplated course. Was there deviation? The libellants. contend that there was, both in going to Lisbon for cargo and in turning off the course from Ponta Delgada to New York and going to North Sydney for coal. It has been long settled that in every contract of affreightment the carrier by water impliedly undertakes to proceed, without unnecessary deviation, by the direct and usual route to the port of delivery unless authorized by the contract to do otherwise, 24 R. C. L. 1336, Constable vs. National Steamship Co., 154 U. S. 51, 66, and that any unauthorized deviation of the vessel from her legitimate and contemplated course nullifies exemptions from liability contained in the bill of lading under which the cargo was shipped. The Sarnia, 278 Fed. 459, 463; The Citta di Messina, 169 Fed. 472, 474-475. The parts of the bills of lading pertinent to the question of deviation are the printed clauses: 66 Shipped by, or received for shipment. in apparent good order and condition from Ferd. Baller & Co. to be transported by the good Steamship Willdomino Captain to New York with liberty to call at Intermediate Ports or any port or ports in or out of the customary route in any order to receive and discharge coal, cargo, passengers, and for any other purposes, * * * 1924 A. M. C. "Eighth. The ship has liberty of filling up and/or bunkering at any port or ports in or out of the way." and the written interpolation "Filling up only in ports on the way westwards of [to] New York.” In so far as they are in conflict the printed provisions must give way to the written. The first question thereby presented is whether Lisbon, where the ship went for cargo only, is a port on the way westward from Messina to New York within the meaning of the written interpolation. But this question was not presented to the trial Court and, consequently, will not be considered here. Badger vs. Ranlett, 106 U. S. 255, 259. H. W. Paine & Co. vs. Manistee Tanning Co., 279 Fed. 340, 2 R. C. L. 69. The next question is whether the vessel's putting in at Sydney was authorized by the provisions of the bill of lading or was an unauthorized deviation of the vessel from her legitimate and contemplated course. Though the liberty granted or reserved to the carrier in the matter of bunkering by the bills of lading is broad it is not unlimited. In Swift & Co. vs. Furness, Withy & Co., 87 Fed. 345, the bill of lading recited that "the vessel is lying at the port of Boston and bound for London,' ***. With liberty to sail with or without pilots, to make deviation, and to call at any intermediate port or ports for any purpose,***." In considering the word "deviation" so used the Court said it "must be held to give to the owner only a limited right of departure from the voyage; and the limits must be those of necessity, and reasonable regard for the rights of both the shipper and carrier, growing out of the nature of the principal contract ***. This clause refers to the voyage contemplated by the parties, and to deviations reasonably incident thereto, not to an additional voyage arbitrarily made by the order of the owner." In The Blandon, 1923 A. M. C. 242, 287 Fed. 722, the voyage was from New York to Valencia "with liberty to call at any port or ports in or out of the customary route in any order." The Court, in determining whether that clause justified the ship's calling at Philadelphia to take on cargo, said: "It is said that the clause will allow only reasonable deviations, and this is indeed true, since such a clause is to be construed in its context." |