The Propeller Niagara, Her Engine Ansel Cobb and Others, Claimants and Appellants v. Joseph Cordes the Propeller Niagara, Her Engine Ansel Cobb and Others, Claimants and Appellants v. Lester Sexton and Others

Decision Date01 December 1858
Citation21 How. 7,16 L.Ed. 41,62 U.S. 7
PartiesTHE PROPELLER NIAGARA, HER ENGINE, &C., ANSEL R. COBB AND OTHERS, CLAIMANTS AND APPELLANTS, v. JOSEPH H. CORDES. THE PROPELLER NIAGARA, HER ENGINE, &C., ANSEL R. COBB AND OTHERS, CLAIMANTS AND APPELLANTS, v. LESTER SEXTON AND OTHERS
CourtU.S. Supreme Court

THESE two cases were appeals in admiralty from the District Court of the United States for the district of Wisconsin.

Both cases were founded upon the same facts, which are fully stated in the opinion of the court.

In the first case, that of Cordes, the District Court decreed that the libellant should recover $3,763.76, with costs; and in the other case, that Sexton should recover $4,964.50, with costs. The owners of the propeller appealed to this court in both cases.

They were argued by Mr. Haven for the appellants, and by Mr. Russell for the appellees.

The evidence cannot be reported upon the questions of fact, such as——

1. Whether the vessel was stanch, well manned, provided, and furnished.

2. Whether she was carefully and properly stowed.

3. Whether she was too heavily loaded.

4. Whether there was a want of care or lack of judgment in going into Presque Isle.

5. Whether the propeller was stranded by mere force of winds and waves and dangers of navigation.

6. Whether the goods were wetted by the leak so produced.

After discussing these questions of fact, as they appeared from the evidence, the counsel for the appellants made the following point of law, viz:

Here, the appellants claim, the extraordinary liability of the respondents as carriers ended, and a new rule of responsibility commenced. Their responsibility, after this period, was for damages arising from want of diligence and proper exertion towards saving and delivering the goods on board, and the proper standard of diligence henceforward was 'such a line of conduct as a prudent man of intelligence would have observed in taking care of his own property similarly situated.' This rule is quoted from Smyrle v. Niolen, 2 Bailey S. Carolina Rep., 421, cited in Angell on Carriers, sec. 187, p. 187.

Again. In cases of necessity or calamity during the voyage, the master is by law created an agent from necessity, for the benefit of all concerned; and what he fairly and reasonably does, under such circumstances, in the exercise of a sound discretion, binds all parties in interest in the voyage, whether owners, or shippers, or underwriters.

See Smith's Mercantile Law, 292, note and cases cited.

Abbott on Shipping, 453, at bottom, et seq., Story & Perkins's edition.

1 Story C. C. Rep., 342, 353.

2 Kent Com., 212.

5 Johnson's Rep., 262.

Searls & Adams v. Scoville, 4 Johnson's C. Rep., 218.

3 Robinson, 240.

1 Salkeld, case 34.

Miston v. Lord, 1 Blatchford's Rep., 354.

A request and authority are necessarily implied, when the master exercises his discretion and judgment fairly.

Douglass v. Moody, 9 Mass. Rep., 550.

7. With navigation closed, no ability to tranship, and nothing that could be done but keeping the goods at Presque Isle, what was the duty of the respondents?

The answer is found in the case in 2 Bailey, 421, above cited.

Angell on Carriers, sec. 187.

Bowman v. Teal, 23 Wendell's Rep., 306.

Story on Bailment, secs. 509, 512.

1 Gray's Rep., 263, and cases there cited.

8. By the discretion of Captain Mallon, Jones, his mate, Captain Gibson, and Fargo, the goods were left on board, as the best that could be done for them.

See authorities on last point.

9. The master could have done nothing else—no storage on shore—could not get goods on shore—mode of stowage—crates—casks dunnage below—well stored and full of above—ventilation, &c.

10. The propeller was got off at the earliest possible time in spring, repaired, and the goods delivered to the consignees.

11. The principle on which the extraordinary responsibility of common carriers is founded does not require that that responsibility should extend to the time occupied in transportation. That principle is the danger of robbery and embezzlement by collusion or fraud on the part of the carrier.

Parsons v. Hardy & McCormick, 14 Wend., 215.

The principle does not extend beyond the ultimate delivery of the goods; it does not extend to the condition in which they are delivered, provided they are all delivered.

The carrier may excuse delay of delivery, by accident or misfortune, is decided in the case last cited; and why not excuse injury by the same means, if by the ultimate delivery they show there has been no robbery or embezzlement by collusion or fraud?

Bowman v. Teal, 23 Wend., 306, 310.

See Forward v. Pittard, 1 Term Rep., 27, as giving reasons on this point.

Story on Bailment, secs. 490, 509, 512.

McHenry v. Phila., Wil., and Balt. R. R. Co., 4 Harrington, 448.

12. When the goods are actually delivered at the place of destination and the complaint is only of a late delivery, the question is simply one of reasonable diligence, and accident or misfortune will excuse the carriers, unless they have expressly contracted to deliver the goods within a limited time.

Wibert v. N. Y. and Erie R. R. Co., 2 Kernan, 245-250, citing Harmony v. Brigham, same book, p. 99.

Parsons v. Hardy, 14 Wend., 215.

Angell on Carriers, sec. 213, and particularly note 2.

Same book, secs. 289, 328.

The argument and references made by the counsel for the appellees, upon the questions of fact above stated, are omitted. The argument upon the point of law respecting the liability of the master, after the vessel was stranded, was as follows:

The master was guilty of want of ordinary care of the interest of the shippers, in deserting the vessel after she was stranded; in making no efforts to remove the libellants' goods from their place of stowage, either ashore, or to some part of the vessel where they would have escaped damage by water.

1. The law is well settled, that it is the duty of the master to adopt every reasonable and practicable method to take care of the goods during such interruptions, by unlading and storing, to prevent wetting, and drying if already wet, so that his contract to deliver in good order may be fulfilled; and a peril of the sea, imposing such duty upon him, will not be regarded as the proximate cause of alleged damage, if he was delinquent in this regard.

Chouteaux v. Leach, 18 Pa. S. R., 224, 6 Harr., 224.

Bowman v. Teal, 23 Wend., 306.

Shepherd v. King, 3 Story, 349.

The Barque Gentleman, Olcott, 118.

Bird v. Cromwell, 1 Miss., 38.

Harrington v. Niles, 2 Nott and McCord, 88.

Fland. Mar. Law, 155.

S. B. Co. v. Beeson, Harper, 262.

Marvin's Law of Wreck and Salvage, 21.

a. There is no variation in the duty or liability of the master and owners after stranding.

Abb. Shipp., 454 n. (1.)-

King v. Shepherd, 3 Story, 349.

Marvin's Law of Wreck and Salvage, 21.

b. The rule is analogous to that which, in France and America, compels a master to preserve and tranship in case of disabling.

Shipton v. Thornton, 9 Ad. and E., 314.

Tronson v. Dent, 36 Eng. L. and Eq., 41.

Hugg v. Ins. Co., 7 How., 604.

Saltus v. Ins. Co., 12 Johns., 107.

Bryant v. Ins. Co., 6 Pick., 131; 1 Arnould, 187.

By the English law, it is in the discretion of the master. This exhibits the leaning of our law to hold the master strictly.

c. Also to the rule in cases of salvage claimed by seamen, (Hobart, v. Drogan, 10 Pet., 127,) and cases of capture, (Cheviot v. Brooks, 1 Johns., 367.)

2. No effort whatever was made to rescue the libellants' goods from what was not only apparent and probable, but almost certain, damage and destruction. And it does not lie in the mouth of the appellants to say that, by possibility, the damage might have happened even if they had resorted to any or all expedients of prevention; in such cases of careless and cowardly abandonment, the law will presume that well-directed efforts would have been successful.

Garrett v. Davis, 6 Bing., 716.

19 Eng. C. L., 714.

Williams v. Grant, 1 Conn., 492.

Fland. Shipp., 303, 261, 269, 199, n. (1.)

a. After the vessel began to make water, the pumps were used for an hour or two, until they were choked with sand; the wooden hand-pumps were in good order, but not used; the master was informed of the pumps of the Albany, near by, but made no effort to procure them. It was apparent, at first, that the water could have been lowered, so as to remove the goods from the hold. The ice was about to form, evidently, strong enough to admit of removal of goods over it. After the ice went away, a bridge could have been built, or the scow could have been used which was in the vicinity. It is clear the master felt satisfied on the question of removal, or else he would not have looked for places to store the property on shore.

If the master and mates had remained, it is evident they might have taken out the perishable articles, fish, fruits, &c., and thus have prevented them from being essentially damaged themselves, or at least from damaging the dry goods of Sexton. If a part had been removed, the remainder could have been secured on the vessel.

To say the very least, there is good reason to believe that the houses on shore, and the means of erecting more, might have been used to afford safe storage on shore.

b. It is no reply to say that the master took advice of other masters. It does not appear that they gave such advice with any personal knowledge of the depth of the water, the mode of stowage, the character of the goods, or any of the necessary data. Gibson made no examination; the master and mate do not agree as to the depth of the water; and the opinions of advisers were doubtless based upon a false or imperfect statement of facts.

However, the advice of the best-informed men would make no difference. It must be clear to the court that the master's conduct was proper.

Tronson v. Dent, ubi supra.

Lawrence v. Minturn, ubi supra.

Marvin's Law of Wreck and Salvage, 20, 21.

c. The hatches were kept closed, although the liability of a...

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