The Montana

Decision Date29 June 1883
Citation17 F. 377
PartiesTHE MONTANA.1 v. LIVERPOOL & GREAT WESTERN STEAM CO. (Three Cases.) [1] INS. CO. OF NORTH AMERICA and others
CourtU.S. District Court — Eastern District of New York

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.

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 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 no change. He passed North Arklow light without seeing it, and made no other light until he made the South Stack light. This light, which should have been made when bearing E.N.E., and about 20 miles away, was made bearing S.E. by E., one point forward of his beam. That light, he says, he held in sight for an hour, during which time he ran at full speed, and without change of course; that at 1:45 the light was abeam, and about 2 o'clock the bearing of the light had changed two points; and then the light was lost, bearing at the time one point abaft his beam. The master further says that the night was clear, and the South Stack light appeared to be dipping upon the horizon, from which circumstance he judged himself to be 15 miles away from it; and that, acting upon that assumption, when he lost the light, not having made the Skerries light, he changed his course from N. 42 deg. E. to E. 3/4 S. On the latter course, he says, he ran five minutes at half speed, when, while running E. 3/4 S., he heard the North Stack gun on his starboard quarter. He immediately altered the course of the steamer to N. 42 deg. E., and on that course ran slow for about 15 minutes, (the answer says about half an hour,) when the steamer brought up on the shore in Church bay, in a thick fog, without giving him time, after discovering the shore, to reverse his engines.

That this account as given by the master, and presented to the court for its consideration by the defendants, is untrue in important particulars, cannot be doubted.

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4 cases
  • The Willdomino
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 4 Junio 1924
    ...lee shore; and with this knowledge he could have prevented the accident that shortly occurred.' Other cases to the like effect are The Montana (D.C.) 17 F. 377; The City of Para (D.C.) 44 F. 689; Union Ins. Co. Dexter (D.C.) 52 F. 152; The Express (D.C.) 48 F. 323. The claimant contends, ho......
  • The Brantford City
    • United States
    • U.S. District Court — Southern District of New York
    • 2 Diciembre 1886
    ...whether the English law or the American law should be deemed controlling. The cases most nearly approaching this are those of The Montana, 17 F. 377, S.C. 22 F. 716, and The 24 F. 922. In the latter there was an express stipulation that any question arising under the bill of lading should b......
  • The Saratoga
    • United States
    • U.S. District Court — Southern District of New York
    • 17 Junio 1884
    ...Casks of Sherry Wine, 14 Blatchf. 517; Dedekam v. Vose, 3 Blatchf. 44; Richards v. Hansen, 1 F. 554, 63; The Invincible, 1 Low. 225; The Montana, 17 F. 377. can be no doubt that this rule, which, upon the above authorities, is applicable to the other exceptions of the bill of lading, is equ......
  • City of New York v. The Express
    • United States
    • U.S. District Court — Southern District of New York
    • 9 Noviembre 1891
    ...fog, where from any cause there is doubt as to one's position, the obligation to use the lead when practicable is well settled, (The Montana, 17 F. 377; City of Para, 44 F. 689;) and, as the evidence showed, is often acted on in going around the North Brothers. It is urged that the use of t......

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