129 U.S. 397 (1889), Liverpool & G.W. Steam Co. v. Phenix Ins. Co.

Citation:129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788
Case Date:March 05, 1889
Court:United States Supreme Court

Page 397

129 U.S. 397 (1889)

9 S.Ct. 469, 32 L.Ed. 788




United States Supreme Court.

March 5, 1889

Appeal from the Circuit Court of the United States for the Eastern District of New York.


[9 S.Ct. 469] F.

Page 412

  1. Wilcox and S. P. Nash, for appellant.

Page 435

Wm. Allen Butler, for appellee.



This is an appeal by a steamship company from a decree rendered against it upon a libel in admiralty, 'in a cause of action arising from breach of contract,' brought by an insurance company, claiming to be subrogated to the rights of the owners of goods shipped on board the Montana, one of the appellant's steam-ships, at New York, to be carried to Liverpool, and lost or damaged by her stranding, because of the negligence of her master and officers, in Holyhead bay, on the coast of Wales, before reaching her destination. In behalf of the appellant, it was contended that the loss was caused by perils of the sea, without any negligence on the part of master and officers; that the appellant was not a common carrier; that it was exempt [9 S.Ct. 470] from liability by the terms of the bills of lading; and that the libelant had not been subrogated to the rights of the owners of the goods.

It is to be remembered that the jurisdiction of this court to review the decree below is limited to questions of law, and does not extend to questions of fact. Act Feb. 16, 1875, c. 77, § 1, 18 St. 315; The Gazelle, 128 U.S. 474, 484, ante, 139, and cases there cited. In the findings of fact the circuit court, after stating, in

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much detail, the course of the ship's voyage, the conduct of her master and officers, the position and character of the various lighthouses and other safeguards which she passed, and other attendant circumstances immediately preceding the stranding, distinctly finds as facts: 'Those in charge of the navigation of the Montana were negligent, in that, without having taken cross-bearings of the light at South Stack, and so determined their distance from the light, they took an east three-quarters south course before passing the Skerries, and without seeing the Skerries light; and in that they continued at full speed after hearing the fog-gun at North Stack; and in that they took a north-east by east magnetic course on hearing said fog-gun, instead of stopping and backing and taking a westerly course out of Holyhead bay; and in that they did not ascertain their position in Holyhead bay by means of the lights and fog-signals, or by the use of the lead, or by stopping until they should, by those means or otherwise, learn where their ship was.' 'On the foregoing facts,' the only conclusion of law stated by the circuit court (except those affecting the right of subrogation and the amount to be recovered) is in these words: 'The stranding of the Montana, and the consequent damage to her cargo, having been the direct result of the negligence of the master and officers of the steamer, the respondent is liable therefor.' Negligence is not here stated as a conclusion of law, but assumed as a fact already found. The conclusion of law is, in effect, that, such being the fact, the respondent is liable, notwithstanding any clause in the bills of lading.

The question of negligence is fully and satisfactorily discussed in the opinion of the district court reported in 17 F. 377, and in that of the circuit court, reported in 22 Blatchf. 372, 22 F. 715. It is largely, if not wholly, a question of fact, the decision of which by the circuit court cannot be reviewed here; and, so far as it can possibly be held to be or to involve a question of law, it is sufficient to say that the circumstances of the case, as found by the circuit court, clearly warrant, if they do not require, a court or jury, charged with the duty of determining issues of fact, to find that the

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stranding was owing to the negligence of the officers of the ship.

The contention that the appellant is not a common carrier may also be shortly disposed of. By the settled law, in the absence of some valid agreement to the contrary, the owner of a general ship, carrying goods for hire, whether employed in internal, in coasting, or in foreign commerce, is a common carrier, with the liability of an insurer against all losses, except only from such irresistible causes as the act of God and public enemies. Moll. De J. Mar. bk. 2, c. 2, § 2; 2 Bac. Abr. 'Carrier,' A; Barclay v. Cucullav Gana, 3 Doug. 389; 2 Kent, Comm. 598, 599; Story, Bailm. § 501; The Niagara, 21 How. 7, 23; The Lady Pike, 21 Wall. 1, 14. In the present case the circuit court has found as facts: 'The Montana was an ocean steamer, built of iron, and performed regular service as a common carrier of merchandise and passengers between the ports of Liverpool, England, and New York, in the line commonly known as the 'Guion Line.' By her, and by other ships in that line, the respondent was such common carrier. On March 2, 1880, the Montana left the port of New York, on one of her regular voyages, bound for Liverpool, England, with a full cargo, consisting of about twenty-four hundred tons of merchandise, and with passengers.' The bills of lading, annexed to the answer and to the findings of fact, show that the four shipments in question amounted to less than 130 tons, or hardly more than one-twentieth part of the whole cargo. It is clear, therefore, upon this record, that the appellant is a common carrier, and liable as such, unless exempted by some clause in the bills of lading. In each of the bills of lading, the excepted perils, for loss or damage from which it is stipulated that the appellant shall not be responsible, include 'barratry of master or mariners,' and all perils of the seas, rivers, or navigation, described more particularly in one of the bills of lading as 'collision, stranding, or other peril of the seas, rivers, or navigation, of whatever nature or kind soever, and howsoever such collision, stranding, or other peril may be caused,' and in the other three bills of

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ading described more generally as any 'accidents of the seas, rivers, and steam navigation, of whatever nature or kind soever;' and each bill of lading adds, in the following words in the one, and in equivalent words in the others, 'whether arising from the negligence, default, or error in judgment of the master, mariners, engineers, or others of the crew, or otherwise howsoever.' If the bills of lading had not contained the clause last quoted, it is quite clear that the other clauses would not have relieved the appellant from liability for the damage to the goods from the stranding of the ship through the negligence of her officers. Collision or stranding is, doubtless, a peril of the seas; and a policy of insurance against perils of the seas covers a loss by stranding or collision, the seas covers a loss by stranding or collision, the master or crew, because the insurer assumes to indemnify the assured against losses from particular perils, and the assured does not warrant that his servants shall use due care to avoid them. Insurance Co. v. Sherwood, 14 How. 351, 364, 365; [9 S.Ct. 471] Insurance Co. v. Adams, 123 U.S. 67, 73, 8 S.Ct. 68; Copeland v. Insurance Co., 2 Metc. 432, 448-450. But the ordinary contract of a carrier does involve an obligation on his part to use due care and skill in navigating the vessel and carrying the goods; and, as is everywhere held, an exception, in the bill of lading, of perils of the sea or other specified perils does not excuse him from that obligation, or exempt him from liability for loss or damage from one of those perils to which the negligence of himself or his servants has contributed. Navigation Co. v. Bank, 6 How. 344, Express Co. v. Kountze, 8 Wall. 342; Transportation Co. v. Downer, 11 Wall. 129; Grill v. Screw Co., L. R. 1 C. P. 600, and L. R. 3 C. P. 476; The Xantho, L. R. 12 App. Cas. 503, 510, 515.

We are then brought to the consideration of the principal question in the case, namely, the validity and effect of that clause in each bill of lading by which the appellant undertook to exempt itself from all responsibility for loss or damage by perils of the sea, arising from negligence of the master and crew of the ship.

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This question appears to us to be substantially determined by the judgment of this court in Railroad Co. v. Lockwood, 17 Wall. 357. That case, indeed, differed in its facts from the case at bar. It was an action brought against a railroad corporation by a drover who, while being carried with his cattle on one of its trains under an agreement which it had required him to sign, and by which he was to pay certain rates for the carriage of the cattle, to pass free himself, and to take the risks of all injuries to himself or to them, was injured by the negligence of the defendant or its servants. The judgment for the plaintiff, however, was not rested upon the form of the agreement, or upon any difference between railroad corporations and other carriers, or between carriers by land and carriers by sea, or nbetween carriers of passengers and carriers of goods, but upon the broad ground that no public carrier is permitted by law to stipulate for an exemption from the consequences of the negligence of himself or his servants. The very question there at issue, defined at the baginning of the opinion as 'whether a railroad company, carrying passengers for hire, can lawfully stipulate not to be answerable for their own or their servants' negligence in reference to such carriage,' was stated a little further on in more general terms as 'the question before propounded, namely, whether common carriers may excuse themselves from liability for negligence;' and a negative answer to the question thus stated was a necessary link in the logical chain of conclusions announced at the end of the opinion as constituting the ...

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