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on the date and hour ordered by the agents for any loss or damage resulting therefrom; of the steamer, or pay demurrage of the that any mortality, sickness, or deterioration steamship for all, or any detention incurred in the condition of the stock shall be preby his failure to do so.

sumed to arise from the condition of the ani. *“ 'In case of nonarrival of vessel in time to mals when shipped, or from natural causes. sail from Boston on or before 18th June, ship “ Consignees to enter the property at the per has option of cancellation. Any dispute custom house within twenty-four hours after arising on this contract to be settled by ar the ship is reported there, and to remove the bitration in the usual way in Boston.

same immediately upon being landed; other. “ 'Henderson Brothers.' wise the property may be discharged by the

agents of the ship at the expense and risk of " "Cattle Bill of Lading.

the shipper or consignee of cargo. Porterage “ 'Shipped alive, by M. Goldsmith, and at of the delivery of the cargo to be done by shipper's risk, in and upon the steamship agents of the ship, at the expense and risk called the Caledonia, now lying in the port of of the receivers. Lighterage, tonnage and Boston, and bound for London, two hundred shed dues payable by the receivers. This and seventy-four head live cattle, to be de bill of lading, duly indorsed, to be given up livered from the ship's deck at the aforesaid to the ship agents, in exchange for delivery port of London; the act of God, the Queen's order. enemies, pirates, restraint of princes and rul “ 'In witness whereof the master, purser, or ers, perils of the seas, rivers, navigation and agents of the said ship hath affirmed to three land transit, of whatever nature or kind, re bills of lading, all of this tenor and date, one strictions at port of discharge, loss or damage of which bills being accomplished, the others from delays, collision, straining, explosion, to stand void. heat, fire, steam boilers, and machinery, or “ 'In accepting this bill of lading, the defects therein, transshipment, escape, acci- shipper, as owner, or agent of the owner, of dents, suffocation, mortality, disease or de the property shipped, expressly accepts and terioration in value, negligence, default, or agrees to all its stipulations, exceptions, and error in judgment of pilots, master, mariners, conditions, whether written or printed. engineers, stevedores, or any other person in " 'Dated in Boston, Mass., 15th June, 1885. the employ of the steamship or of the own

“ 'J. Miller Stewart, ers or their agents, excepted; with liberty to

“ 'For the Agents.' sail with or without pilots, to tow and assist vessels in all situations, to call at any port or "On Monday, June 15, 1883, the libelant ports to receive fuel, load or discharge cargo, shipped on board the Caledonia, at Boston, a or for any other purpose; and, in the event to be delivered at Deptford, twohundred and of the steamship's putting back to Boston or seventy-four head of cattle in good order into any other port, or being prevented from and condition; and put on board fodder suff. any cause from proceeding in the ordinary cient for a voyage of fifteen days (a day or course of her voyage, to transship by any two more than the usual length of voyage), other steamer unto order, or to his or their as being all the fodder that by the usage of the signs.

business he was bound to provide. On the “ 'Freight for the said stock to be paid morning of June 24th the ninth day out from without any allowance of credit or discount, Boston, in smooth weather, the propeller at the rate of £ 2 5 0 sterling for each ani shaft of the Caledonia broke straight across mal shipped on deck, and £ 2 5 0 sterling in the stem tube. There had been no heavy for each animal shipped under deck, whether weather on this voyage, and the propeller delivered or not, vessel lost or not lost, cat did not strike against any rock or derelict tle jettisoned in all or in part, or otherwise or other object. The cause of the breaking lost, with average accustomed. In the event of the shaft was its having been weakened of the loss of the vessel, of her not arriving | by meeting with extraordinarily heavy seas at the said port, or of the consignee neglect on previous voyages. At the time of leav. ing to pay the freight upon the arrival of the ing Boston, on June 15th, the shaft was in vessel, or neglecting to pay the charges and fact unfit for the voyage, and by reason of expenses herein* mentioned, the shipper, in its unfitness the vessel was unsea worthy. consideration of the waiving of the payment No defect in the shaft was visible or could of the freight in advance, hereby binds and have been detected by the usual and reaobligates himself to pay the freight above sonable means, if the shaft had been taken expressed, and such charges and expenses out and examined. No negligence on the upon demand.

part of the owners of the steamship was “ 'It is also stipulated and agreed by the proved. shipper, as a condition of the shipment, that “By reason of the breaking of the shaft, he will take charge of the stock during the the voyage lasted twenty-five days, and the voyage, the vessel furnishing water only; cattle were put on short allowance of food, that he has examined the condition of the and in consequence thereof were landed at steamer, the construction of the stalls, and | Deptford in the afternoon of Monday, July the means of ventilation, and approved of 20th, in an emaciated condition. the same, and that no claim shall be made “The market days in London were Mon

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days and Thursdays. By the usual course worthiness exists by implication in all con. of the business of shipping live cattle froin tracts for sea carriage we do no* understand Boston to Deptford for the London market, to be denied; but it is insisted that the war. and in accordance with the knowledge and ranty is not absolute, and does not cover la. contemplation of both parties at the time tent defects not ordinarily susceptible of de of the execution of the memorandum of tection. If this were so, the obligation restagreement and the bill of lading, the cattle ing on the shipowner would be, not that the were not to be sold before arrival, and were ship should be it, but that he had honestly sold at the first market after their arrival. done his best to make her so. We cannot

“The amount of the damages suffered by concur in this view. the libelant was as stated in the following In our opinion, the shipowner's undertaking agreement, signed and filed by the counsel is not merely that he will do and has done of the parties:

his best to make the ship fit, but that the ship “ 'It is hereby agreed that the whole

is really fit to undergo the perils of the sea amount of damages suffered by the libelant

and other incidental risks to which she must (exclusive of interest) arose from two sour

be exposed in the course of the voyage; and, ces of loss: Shrinkage in the weight of cat

this being so, that undertaking is not dischar. tle from the protracted voyage, and fall in

ged because the want of fitness is the result

of latent defects. the market value of the cattle during the delay in arrival; and that these two causes

The necessity of this conclusion is made together made the loss seven thousand eight obvious when we consider the settled rule in bundred and fifty dollars, * and that one

respect of insurance, for it is clear that the half thereof, to wit, three thousand nine undertaking as to seaworthiness of the shiphundred and twenty-five dollars, was and

owner to the shipper is coextensive with that is to be attributed to each cause.'

of the shipper to his insurer.

That rule is thus given by Parsons (1 Mar. “Conclusions of Law.

Ins. 367): “Every person who proposes to "There was a warrauty that the vessel was

any insurers to insure his ship against sea seaworthy at the time of sailing from Bos

perils, during a certain voyage, impliedly ton. This warranty was not affected by the

warrants that his ship is, in every respect exceptions in the bill of lading. The breach

in a suitable condition to proceed and conof the warranty was the cause of all the

tinue on that voyage, and to encounter all damage claimed. The libelant is entitled to

common perils and dangers with safety. recover $7,850 and interest."

* This warranty is strictly a condition

precedent to the obligation of insurance; if The circuit court thereupon entered a final

it be not performed, the policy does not atdecree for the sum so found together with

tach; and, if this condition be broken, at the interest and costs. The opinion is reported | inception of the risk, in any way whatever in 43 Fed. 681. Claimants appealed to this

and from any cause whatever, there is no court.

contract of insurance, the policy being whol.

ly void." George Putnam, for appellants. Henry M.

In Kopitoff v. Wilson, 1 Q. B. Div. 377, 381, Rogers, for appellee.

although, as there was no necessity to con

sider the law as to latent defects, whether Mr. Chief Justice FULLER, after stating such defects would constitute an exception the facts in the foregoing language, deliy cannot be said to have been passed on, the ered the opinion of the court.

general rule was laid down as we have stated In The Edwin I. Morrison, 153 U. S. 199, it, and the existence of the warranty in ques210, 14 Sup. Ct. 823, the language of Mr. Jus- tion on the part of a shipowner was asserted tice Gray, delivering the opinion of the cir- | with reference to his character as such, and cuit court in the present case, was quoted not as existing only in those cases in which with approval, to this effect: "In every con he is also acting as a carrier. That was an tract for the carriage of goods by sea, unless action in which the piaintiff sought to recov... otherwise expressly stipulated, there is a er damages for the loss of a large number of: warranty on the part of the shipowner that weighty iron armor plates and bolts, one of the ship is seaworthy at the time of begin the plates having broken loose and gone ning her voyage, and not merely that he does through the side of the ship, which, in consenot know her to be unsea worthy, or that he quence, went down in deep water and was has used his best efforts to make her sea wor totally lost with all her cargo. The case thy. The warranty is absolute that the ship is, was tried before Blackburn, J., who told the or shall be, in fact seaworthy at that time, jury as matter of law that the shipowner and does not depend on his knowledge or warranted the fitness of his ship when she ignorance, his care or negligence."

sailed, and not merely that he had honestly After renewed consideration of the subject, and in good faith endeavored to make her fit, in the light of the able arguments presented and left the following questions to the jury: at the bar, we see no reason to doubt the cor "Was the vessel at the time of her sailing in rectness of the rule thus enunciated.

a state, as regards the stowing and receiving The proposition that the warranty of sea of these plates, reasonably fit to encounter

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the ordinary perils that might be expected on which it is the universal habit and practice a voyage at that season from Hull to Cron of mercantile men to endeavor to secure." stadt? Second. If she was not in a fit state, The reasons for the strict enforcement of was the loss that happened caused by that the warranty, in insurance, have frequently unfitness?" The rule for new trial was dis been commented on. charged in view of the warranty by implica In Douglas v. Scougall, 4 Dow, 269, 270, tion that the ship was in a condition to per Lord Eldon said: “I have often had occasion. form the voyage then about to be undertaken, to observe bere that there is nothing in matand Field, J., among other things, said: “It ters of insurance of more importance than the appears to us, also, that there are good implied warranty that a ship is seaworthy grounds in reason and common sense for hold when she sails on the voyage insured; and I ing such to be the law. It is well and firmly | have endeavored, both with a view to the ben. established that in every marine policy the efit of commerce and the preservation of huassured comes under an implied warranty of man life, to enforce that doctrine as far as, in seaworthiness to his assurer, and, if we were the exercise of sound discretion, I have been to hold that he has not the benefit of a sim- enabled to do so. It is not necessary to inllar implication in a contract which he makes quire whether the owners acted honestly and with a shipowner for the carriage of his fairly in the transaction; for it is clear law goods, the consequence would be that be that, however just and honest the intentions would lose that complete indemnity against and conduct of the owner may be, if he is risk and loss, which it is the object and pur- * mistaken in the fact, and the vessel is in fact pose to give him by the two contracts taken not seaworthy, the underwriter is not liable.” together. Holding as we now do, the result Similarly, Mr. Justice Curtis, in Bullard v. is that the merchant, by his contract with Insurance Co., 1 Curt. 148, 155, Fed. Cas. No. the shipowner, having become entitled to 2,122, stated in his charge to the jury: "There have a ship to carry his goods warranted it is an implied warranty connected with mafor that purpose, and to meet and strugglerine policies that the vessel, at the outset of against the perils of the sea, is, by his con her voyage, is seaworthy for the voyage in tract of assurance, protected against the dam- which she is insured. This obligation is im. age arising from such perils acting upon a posed, by law, on the insured for sound reasea worthy ship."

It takes away all temptation to expose This was the view expressed by Mr. Justice life and property to the dangers of the seas Brown, then district judge, in The Eugene in vessels not fitted to encounter or avoid Vesta, 28 Fed. 762, in which he said: “There them. It is not a contract that the owner can be do doubt that there is an implied war will use diligence to make his vessel seawor. ranty on the part of the carrier that his ves thy, but an absolute warranty that she is seasel shall be seaworthy, not only when she be worthy, and if broken the policy is made gins to take cargo*on board, but when she void." And Mr. Justice Story, in The Reebreaks ground for the voyage. The theory of side, 2 Sumn. 567, 575, Fed. Cas. No. 11,657, the law is that the implied warranty of sea declared "every relaxation of the common law worthines hall protect the owner of the car in rel ion to the dutie and responsibilities of go until his policy of insurance commences to the owners of carrier ships to be founded in run; and, as it is well settled that the risk bad policy and detrimental to the general inunder the policy attaches only from the time terests of commerce.” the vessel breaks ground, this is fixed as the As the same warranty implied in respect of point up to which the warranty of seaworthi policies of insurance exists in respect of conness extends." And the case of Cohn v. Da tracts of affreightment, that warranty is necvidson, 2 Q. B. Div. 455, was cited, where it essarily as absolute in the one instance as in appeared that the ship was not in fact sea the other. worthy at the time she set sail, but that as In Putnam v. Wood, 3 Mass. 481, 485, the she was found to be sea worthy at the time supreme judicial court of Massachusetts, she commenced to take cargo, she must have speaking through Parker, J., said: “It is the received the damage in the course of loading; duty of the owner of a ship, when he charters and Field, J., observed that "no degree of sea her or puts her up for freight, to see that she worthiness for the voyage at any time ante is in a suitable condition to transport her rior to the commencement of the risk will be

cargo in safety; and he is to keep her in that of any avail to the assured, unless that sea condition, unless prevented by perils of the worthiness existed at the time of sailing from sea or unavoidable accident. If the goods are the port of loading. As, therefore, the mer lost by reason of any defect in the vessel, chant in a case like the present would not be whether latent or visible, known or unknown, entitled to recover against his underwriter by the owner is answerable to the freighter, upreason of the breach of warranty in sailing in on the principle that he tacitly contracts that an unseaworthy ship, it would follow that, if his vessel shall be fit for the use for which he the warranty to be implied on the part of the thus employs her. This principle governs, not shipowner is to be exhausted by his having only in charter parties and in policies of inthe ship seaworthy at an anterior period, the surance, but it is equally applicable in con. merchant would lose that complete indemnity, tracts of affreightment." by means of the two contracts taken together, This Parly case iw cited by Chancellor

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Kent, who affirms the doctrine in these doctrine by the reasoning in Readhead v. words: “The ship must be fit and compe Railroad Co., L. R. 4 Q. B. 379, L. R. 2 Q. tent for the sort of cargo and the particular B. 412. There a passenger sought to charge service in which she is engaged. If there a common carrier for an injury occasioned should be a latent defect in the vessel, un by the breaking of an axle by reason of a known to the owner and not discoverable hidden flaw; and the court of exchequer upon examination, yet the better opinion is chamber held that a contract made by a genthat the owner must answer for the dam eral carrier of passengers for hire with a age caused by the defect. It is an implied passenger is to take due care (including in warranty in the contract, that the ship be that term the use of skill and foresight) to sound for the voyage, and the owner, like a carry the passenger safely, and is not a warcommon carrier, is an insurer against every ranty that the carriage in which he travels thing but the excepted perils." 3 Kent, shall be free from all defects likely to cause Comm. *205.

peril, although those defects were such that The high authority of Lord Tenterden no skill, care, or foresight could have de (Abb. Shipp., 1st Ed., 146), Lord Ellenborough tected their existence. But the court was (Lyon v. Mells, 5 East, 428), Mr. Baron careful to point out the broad distinction Parke (Gibson v. Small, 4 H. L. Cas. 353, between the liabilities of common carriers 404), and Lord Blackburn (Steel v. Steam. of goods and of passengers, and in the case ship Co., 3 App. Cas. 86), may be invoked at bar the shipowner was not only liable in support of this view, and it is sustained as such, but as a common carrier, and subby decisions of this court (The Northern ject to the responsibilities of that relation. Belle, 9 Wall. 526; Work v. Leathers, 97 That case was decided in 1869, and those U. S. 379; preceding that of The Edwin I. of The Glenfruin and The Laertes in 1885 Morrison, which in terms adopts it). The and 1887; yet the latter rulings seem to point was distinctly ruled in The Glenfruin, have been accepted without question, and 10 Prob. Div. 103. There a steamship were certainly unaffected by any attempt laden with cargo became disabled at sea to apply a rule in respect of roadworthiness in consequence of the breaking of her crank in the carriage of passengers by a railroad shaft. Su breakage was caused by a to the warranty of seaworthiness in the car. latent defect in the shaft, arising from a riage of goods by a ship. flaw in the welding, which it was impossible In our judgment, the circuit court rightly to discover. It was held that under his im held that the warranty was absolute; that plied warranty of seaworthiness a shipown the Caledonia was unsea worthy when she er contracts, not merely that he will do his left port; and that that was the cause of best to make the ship reasonably fit, but the damage to libelant's cattle. that she shall really be reasonably fit for This brings us to the inquiry whether the the voyage, and that as, when the Glen

claimants can escape from the liability which fruin started, the shaft was not reasonably the law imposed upon them by reason of the fit for the voyage, she was unseaworthy, exceptions in the bill of lading. and the owner was liable; and Lyons v. These exceptions were: "The act of God, Mells, 5 East, 428; Kopitoff v. Wilson, 1 Q. the queen's. enemies, pirates, restraint of B. Div. 377; Steel v. Steamship Co., 3 App. princes and rulers, perils of the sea, rivers, Cas. 72,-were referred to.

navigation and land transit, of whatever na. Again, in The Laertes, 12 Prob. Div. 187, ture or kind, restrictions at port of discharge, a steamship became disabled at sea owing loss or damage from delays, collisions, strain. to the breaking of her fly-wheel shaft through ing, explosion, heat, fire, steam boilers and a flaw in the welding existing at the com machinery or defects therein, transshipment, mencement of the voyage, but not discover escape, accidents, suffocation, mortality, disable by the exercise of any reasonable care, ease or deterioration in value, negligence, de and it was held that she was not sea worthy fault or error in judgment of pilots, master, for the voyage, and that but for a limitation, mariners, engineers, stevedores, or any othon the implied warranty, in the bills of lad er person in the employ of the steamship ing, there would have been a breach.

or of the owners or their agents." The point is thus put by Judge Brown, of It is claimed that the Caledonia was exthe Southern district of New York, in The empted from the losses caused by her unsea. Rover, 33 Fed. 515, 516: “This warranty ex worthiness from the defective shaft at the tends to latent defects not discoverable by commencement of the voyage by the excepprior examination. Either the ship or the tion of "loss or damage from delays, freighter must bear such risks. Under the steam boilers and machinery or defects there warranty of seaworthiness, the law places in." this risk upon the ship and her owner." As is well said by counsel for appellee, And see The Lizzie W. Virden, 19 Blatchf. the exceptions in a contract of carriage lim. 340, 8 Fed. 624, Blatchford, J.; The Carib it the liability, but not the duty, of the Prince, 63 Fed. 266, Benedict, J.; Whitall v. owner, and do not, in the absence of an er. The William Henry, 4 La. 223; Talcot v. press provision, protect the shipowner against Insurance Co., 2 Johns. 124, 128.

the consequences of furnishing an unsea It is urged that doubt is thrown upon the worthy vessel. Steel v. Steamship Co., 3

881.

App. Cas. 72; Gilroy v. Price (1893] App. to secure efficiency." These exceptions were Cas. 56; The Glenfruin, 10 Prob. Div. 103; held to limit the implied warranty of seaKopitoff v. Wilson, 1 Q. B. Div. 377; Tat worthiness in accordance with the expressed tersall v. Steamship Co., 12 Q. B. Div. 297; intention of the parties to that precise effect, Insurance Co. v. Hamilton, 12 App. Cas. 484, and for that reason only to take the case out 490. If the exceptions are capable of, they of the general rule. ought to receive, to use the language of We are not dealing with the question of Lord Selborne in Steel v. Steamship Co., "a how far exceptions may be given effect in construction not nullifying and destroying particular cases, but whether by those un. the implied obligation of the shipowner to der consideration claimants were exempted provide a ship proper for the performance of from liability from*seaworthiness, and we the duty which he has undertaken.”

are clearly of opinion that they were not. There was no exception in tbis bill of lad Something was said as to protection from ing which in express words exempted the liability by reason of the words in the origishipowner from furnishing a seaworthy ves nal memorandum of agreement that "the sel at the commencement of the voyage. As shipper assumes all risk of mortality or accithe exceptions were introduced by the ship dent, however caused, throughout the voyowners themselves in their own favor, they age.” We agree with the circuit court that are to be construed most strongly against the bill of lading can only be considered as them, and we perceive no reason why the ob the contract between the parties, the memoligation to furnish a seaworthy vessel should randum being preliminary merely; but we be held to have been contracted away by are also of opinion that the same rule of implication. Their meaning ought not to be construction would apply to the memoranextended to give the shipowner a protection, dum as to the bill of lading, and that the which, if intended, should have been express assumption of the risk of mortality or accied in clear terms.

dent throughout the voyage did not consti* Moreover, the words "delays," "steam boil tute an exemption of the shipowner from his ers and machinery or defects therein," form obligation to furnish a seaworthy vessel at ed part of a long enumeration of the causes its commencement. of damages, all the rest of which related to By reason of the unseaworthiness of the matters subsequent to the beginning of the Caledonia, the cattle were not delivered at voyage; and, by another familiar rule of the time and place when and where they construction, they should be treated as equal should have been, and loss was incurred ly limited in their scope.

through shrinkage in weight from the proIn Tattersall v. Steamship Co., cattle had tracted voyage, and through fail in market been shipped under a bill of lading, by which value during the delay in arrival. it was provided that the defendants were to It is argued that a common carrier is be "in no way responsible either for their not liable for mere delay and its conseescape froin the steamer, or for accidents, quences unless he has been at fault, and disease, or mortality, and that under no cir that claimants were in this case free from cumstances shall they be held liable for more blame because the defect was a secret one. than £5 for each of the animals." The ship, This cvatention, howerer, begs the question; after carrying a cargo of cattle on a previous for the conclusion upon this record is that voyage, was improperly cleaned, and those claimants are responsible for breach of war. on this voyage took the foot and mouth dis ranty, notwithstanding the shaft was de

It was held that the liability of the fective through hidden weakness. No quesdefendants was not limited to £5 for each tion can be made that the shrinkage was a of the cattle, for the stipulations of the bill direct result of that breach, but it is further of lading related to the carriage of the goods insisted that changes in market value were on the voyage, and did not affect the obliga too speculative to furnish just basis for re. tion to have the ship fit for the reception of covery. But as it is found as a fact that the cattle.

these parties, at the time of contracting toIn The Laertes, 12 Prob. Div. 187. cargo gether, knew an'l contemplated that the cat. was shipped under three different forms of tle were not to be sold before arrival, but bills of lading, the exceptions in which, so were to be sold at the first possible market far as material, were respectively as follows: day after arrival, it follows that the dam. "Warranted seaworthy only so far as ordi ages by reason of the fall in price were not nary care can provide.” “Warranted sea remote, but flowed naturally from the breach worthy only as far as due care in the ap of warranty. Howard v. Manufacturing Co., pointment or selection of agents, superin 139 U. S. 199, 11 Sup. Ct. 500; Cincinnati tendents, pilots, masters, officers, engineers, Siemens-Lungren Gas Illuminating Co. v. and crew can ins it.” "Owners not to be Western Siemens-Lungren Co., 152 U. S. 200. liable for loss, detention, or damage

14 Sup. Ct. 523; King v. Woodbridge, 34 Vt if arising directly or indirectly

565; Laurent v. l'aughn, 30 Vt. 90; Ayres v from latent defects in boilers, machinery, or Ranway Co., *75 Wis. 215, 43 N. W. 1122 any part of the vessel in which steam is Deming v. Railroad Co., 48 N. H. 455; Wil used, even existing at time of shipment, pro son v. Railway Co., 9 C. B. (N. S.) 632; Col vided all reasonable means have been taken lard v. Railway Co., 7 Hurl. & N. 79; The

ease.

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