17 F. 377 (E.D.N.Y. 1883), The Montana

Citation17 F. 377
Party NameTHE MONTANA.1 v. LIVERPOOL & GREAT WESTERN STEAM CO. (Three Cases.) [1] INS. CO. OF NORTH AMERICA and others
Case DateJune 29, 1883
CourtUnited States District Courts, 2nd Circuit, Eastern District of New York

Page 377

17 F. 377 (E.D.N.Y. 1883)

THE MONTANA.1

v.

LIVERPOOL & GREAT WESTERN STEAM CO. (Three Cases.) 1

INS. CO. OF NORTH AMERICA and others

United States District Court, E.D. New York.

June 29, 1883

Page 378

Butler, Stillman & Hubbard and R. D. Benedict, for libelants.

Beebe, Wilcox & Hobbs, for claimant.

BENEDICT, J.

These actions are to recover the value of goods shipped on the steam-ship Montana, in New York, to be transported therein to Liverpool, and destroyed by the stranding of the steamer at Church bay, on the Welsh coast, in March, 1880. The goods were insured by the several corporations-- the Insurance Company of North America, the Phoenix Insurance Company, and the Ulster Marine Insurance Company-- who bring these suits, and the loss having been paid by the insurers, they now seek to recover of the owners of the steamer the amounts so paid by them respectively. Their claim rests upon the proposition that the stranding of the steamer, and consequent loss of the goods insured, was caused by the negligence of the master of the steamer, who was at the time responsible for her navigation.

On the part of the defendants the right of the libelants to recover is disputed upon several grounds:

First, it is said the facts proved do not make out a case where the insurers are subrogated to the rights of the owners of the goods, and therefore no recovery can be had in these actions. But, in my opinion, the testimony is clearly sufficient to bring these cases within the settled rule, and entitled the libelants to enforce against the owners of this steamer any right which accrued to the owners of the goods by reason of the bills of lading, and subsequent loss of the property shipped.

Page 379

Next, it is said in behalf of the defendants that their liability upon these bills of lading must be determined by the law of England. But the undisputed facts show that there is no ground for such a contention.

Next, it is contended, and with much apparent earnestness, that the law of this country permits no recovery, because of the fact that the bills of lading sued on provide for exemption from liability for losses caused by the negligence of the defendant's servants. But this court is bound by authority to hold such a provision in the contract of a common carrier to be null and void. Upon this point the decision of the supreme court of the United States in Railroad Co. v. Lockwood, 17 Wall. 357, in my opinion controls the present case. The only distinction between Railroad Co. v. Lockwood and the present case is that here the contract is a bill of lading for goods shipped on a vessel, while the contract passed on in Railroad Co. v. Lockwood was for the transportation of a passenger, and by railroad. I am unable to see that this distinction creates a difference between the cases. The defendants here were common carriers, and the reasons for the rule declared by the supreme court in Railroad Co. v. Lockwood, appear to me to apply with full force to a contract for the carriage of goods in a ship. But if this court be not bound by the decision of the supreme court in the case referred to, it is controlled on this occasion by decisions, in cases precisely similar to the present, which have been made by this court, and by the circuit court in this circuit. See The City of Norwich, 3 Ben. 575; Nelson v. National S.S. Co. 7 Ben. 340; The Colon, 9 Ben. 354; The Hindoo, 1 F. 627; The Powhatan, 5 F. 375, and 12 F. 876. It would be a waste of time, therefore, to follow the elaborate argument that has been presented in regard to the effect to be given to the provisions of the bills of lading under which the goods in question were transported.

My decision of this case must turn, not upon any question as to the form of the contract, but upon a question of navigation, and I am required to say whether the stranding of this steamer was caused by a failure on the part of the master to use reasonable care and skill in the navigation of his ship.

The decision of this question may well be approached with solicitude, but it is not seen that it involves an inquiry different in character from the inquiry so often forced upon the attention of courts of admiralty in cases of collisions of ships.

Upon this inquiry I enter with the remark that, inasmuch as the bills of lading sued on contain an exemption from liability for loss caused by stranding, I consider the libelants bound to prove that the cause of the stranding was negligence of the master. It will not be sufficient to show an error of judgment on the part of the master, either in selecting one of two courses open to be pursued by him, or in coming to one rather than another of two conclusions possible

Page 380

to be drawn from the facts as known, or as they ought to have been known by him. He must be proved to have displayed a want of reasonable care and skill in view of the facts as they appeared, or ought to have appeared, to him.

Moreover, the liability of the defendants will be determined upon the testimony of the master himself, who is produced as a witness by the defendants, and neither he nor they can complain if his statement of what was done, and the attending circumstances, be made the basis of my decree.

The master's statement is, in substance, as follows: That, bound up the Irish channel, when Tuskar light was about abeam some four miles away, he put the steamer upon a course N. 42 deg. E. On that course, South Arklow light, upon the Irish coast, ought not to have been seen, but was seen plainly. From this circumstance the master, as he says, judged that the flood tide then running was carrying him to west of his proper course; but, nevertheless, he made...

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