The Egypt

Decision Date06 October 1885
Citation25 F. 320
PartiesTHE EGYPT. [1] v. THE EGYPT. ACKER and others HOUSTON v. SAME. PERSON and others v. SAME.
CourtU.S. District Court — Southern District of New York

The above three actions were brought to recover $11,250, the value of merchandise imported from Europe, consigned to the libelants, and destroyed by fire at the Inman Company's pier, North river, on the night of January 31, 1883. Numerous other actions are pending in this court growing out of the same fire. The steamer arrived about 1 P.M. of January 31st. She obtained at once, from the collector of the port, a general order for her discharge upon the dock, a further special permit for continuing the discharge after sunset, and a permit for goods not entered to remain on the dock for 48 hours after discharge. These permits were obtained under section 2871, Rev. St., and under regulations prescribed by the secretary of the treasury dated May 5, 1877. These regulations provided that goods landed, for which no permit for delivery to their owners had been obtained, should be sent by the collector to the general order store, but that the collector might, at the request of the master, etc., allow goods landed, but not 'permitted' to remain on the docks, 'at the sole risk of the owner of the vessel, not longer than 48 hours from the time of the discharge, upon the production of evidence that the owner of the vessel assumes the risk of the goods allowed to remain, and agrees to pay the duties on any goods that may be lost by so remaining;' also that, in order 'to continue the discharge of the cargo after sunset, a special license must be obtained in accordance with section 2871, Rev. St.' That section provides that, to obtain such a special license, the collector must be indemnified against any loss, and also that 'the liability of the master or owner of any such steam-ship to the owner or consignee of any merchandise landed from her shall not be affected by the granting of such special license or of any general order; but such liability shall continue until the merchandise is properly removed from the dock whereon the same may be landed. ' Section 2969, Rev. St provides that 'all merchandise of which the collector shall take possession under the provisions relating to the time for the discharge of a vessel's cargo, shall be kept with due and reasonable care at the charge and risk of the owner.'

To obtain the benefit of the above permits, the agents of the steamer signed the following applications, the forms of which were prepared and exacted by the collector:

'Request is made to allow the cargo of the steamer Egypt, Sumner, from Liverpool, England, unladen, but not permitted, to remain upon the wharf for forty-eight hours from the time of granting general order, at the sole risk of the owners of said steamer, who will pay to the consignee or owner the value of such cargo, respectively, as may be stolen, burned, or otherwise lost; and who will also pay all duties on cargo which may be in any way lost by so remaining.'
'Application is hereby made for a special license to unlade upon the wharf, after sunset, the cargo of the S.S. Egypt, . . . master, which arrived at this port on the thirty-first day of January, 1883, from Liverpool, England. This application is made in consequence of want of time, and the undersigned have given a bond to the collector of the port in conformity with sections 2871 and 2872 of the Revised Statutes, in the sum of twenty thousand dollars, and have deposited ten dollars per night for each inspector whose services may be required under the license, namely, for two inspectors for one night, being the night of January 31st.'

A bond was given to the collector in the sum of $20,000, conditioned to 'indemnify and save harmless the said collector from any and all losses and liabilities which may occur or be occasioned by reason of the granting of such special license.'

Under the three permits thus obtained, the immediate discharge of the steamer's cargo was commenced at 1:30 P.M. of January 31st, and continued during the night. At about 2 o'clock A.M. a fire broke out upon the dock from some unknown cause, and, so far as appears, without the fault or negligence of any one, and the libelant's goods were consumed.

Acker & Ferris and Stephen A. Walker, for libelants Acker and others.

Coles Morris and Billings & Cardozo, for libelant Houston.

Kobbe Bros., for libelants Person and others.

John Chetwood and Robert D. Benedict, for the Egypt.

BROWN J.

Considering that business at the custom-house closes at 3 P.M., I must find upon the evidence that there was not reasonable time, after the arrival of the ship, for the consignees, by the use of ordinary diligence, to enter the goods at the custom-house and get a permit on January 31st, so as to remove the goods from the dock before the fire. So far as appears, therefore, the loss arose without negligence on either side. No notice of intended discharge was given by the ship to the consignees.

1. Section 4282 of the Revised Statutes provides that 'no owner of any ship or vessel shall be liable * * * for any loss or damage which may happen to any goods which shall be shipped, taken in, or put on board any such ship, by reason or by means of any fire happening to or on board said ship, unless said fire is caused by the design or neglect of such owner. ' The fire in this case originated upon the dock; it extended to the steamer so far as to do some damage to her hull and rigging before she was towed away. No injury happened to any goods that remained on board. It is urged that this was but a single fire; and as it extended to and injured the ship, and in fact prevented her from completing the delivery of the goods to the consignees, about which the ship was engaged at the time of the fire, it was a fire that literally and substantially 'happened to the ship.' I do not think that the phraseology of the statute, though capable of this broad construction, was intended to cover a fire originating on the dock, and happening to goods after they had been landed. I do not think the statute intended to cover such a case as this. The loss of the goods must be 'by reason or by means of' the fire that happens 'to the ship,' or 'on board' of her. By that is meant a fire that happens to the ship physically; not one that happens merely to interrupt the performance of her duties in respect to the goods upon the dock. If the statute included the latter, it would apply, although the ship herself were not touched by the fire at all. This is not, I think, the sense of the statute. So also, in a certain sense, the fire is one fire; but not in the meaning of the statute. If the statute would not apply in case the fire did not reach the ship at all, through her being towed away before it extended to her, it would be a very unreasonable construction to hold that the statute would apply merely because she was not taken away in time to escape the fire; the loss of goods on the dock being alike in both cases, and not occurring by reason of any fire happening to or aboard the ship literally. What is meant is that the fire that 'happens to or on board the ship' must be the cause of the loss. That was not so in this case. The statute, moreover, was designed to give relief against the consequences of fires incident to navigation. After goods have been landed, wholly different and additional causes of fire arise, not at all dependent on navigation. The statute does not, in my judgment, cover all these additional liabilities to fire, nor embrace goods landed that are injured through a fire not originating on the ship, nor communicated to the goods from the ship.

2. As no delivery of the goods had been made to the consignees, nor reasonable opportunity afforded to the owners to receive and take them from the dock before the fire, the ship and her owners must be held liable as common carriers for the loss of the goods burned, unless they are exempted by the terms of the bills of lading. The steamer belonged to the National Steam-ship Company. In the case of Acker, the goods came under the bills of lading issued by that line. In the other two cases, the goods came under bills of lading of the Inman Line, which had forwarded the goods by the Egypt. The National Steam-ship Company's bills of lading contain, among numerous other stipulations, the following exceptions:

'Fire before loading in the ship or after unloading, * * * and all loss, damage, or injury arising from the perils or matters above mentioned, and whether such perils or matters arise from the negligence, default, or error in judgment of the pilot, master, mariners, engineers, stevedores, or other persons in the service of the ship-owner. * * * The goods to be taken from along-side by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed by the master, and deposited at the expense of consignee, and at his risk of fire, loss, or injury in the warehouse provided for that purpose, or in the public store, as the collector of the port of New York shall direct, and when deposited in the warehouse or store, to be subject to storage; the collector of the port being hereby authorized to grant a general order for the discharge immediately after entry of the ship. The United States treasury having given permission for goods to remain forty-eight hours on wharf in New York, any goods so left by consignee will be at his or their risk of fire, loss, or injury.'

The exceptions of the Inman Company's bills of lading included the following:

'Risk of literage to and from the vessel, of craft or hulk or transhipment, Jettison, explosion, heat, fire at any time and in any place, boilers, steam, or machinery, or the consequence of
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  • THE FERNCLIFF, 2155.
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    ...properly I think, that the clause is not a defense to liability when occasioned by negligence. The Titania, D. C., 19 F. 101; The Egypt, D.C., 25 F. 320, 329; The Anna, D.C., 223 F. 558, 560; The Turret Crown, 2 Cir., 297 F. 766, 778; Inman v. South Carolina R. Co., 129 U.S. 128, 139, 9 S.C......
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