87 F. 345 (D.Mass. 1898), 773, Swift & Co. v. Furness, Withy & Co.

Docket Nº:773.
Citation:87 F. 345
Party Name:SWIFT & CO. v. FURNESS, WITHY & CO., Limited.
Case Date:May 10, 1898
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 345

87 F. 345 (D.Mass. 1898)



FURNESS, WITHY & CO., Limited.

No. 773.

United States District Court, D. Massachusetts.

May 10, 1898

Henry M. Rogers, for libelant.

Thomas H. Russell, for respondent.

BROWN, District Judge.

Swift & Co., exporters of fresh beef, bring this libel in personam against Furness, Withy & Co., Limited, a British corporation having a place of business in Boston, in this district, owner of the steamship Durham City, for damages arising from delay in delivering at London, 1,229 quarters of beef, causing deterioration of the beef and loss of market. The beef was shipped at Boston in good condition, was properly cared for on the voyage by the men in charge, and the refrigerators were provided with a proper and usual supply of ice and salt for the ordinary voyage, of 14 to 16 days, and for 4 or 5 days in addition. The ship sailed for London October, 6, 1894, making an ordinary voyage, and arrived off Dover October 21st, with a London pilot on board. There she received orders from the owners to go to Havre to land cattle, a part of her cargo. The ship went to Havre, and in Holland, where she landed sheep; sailing thence October 29th, and arriving at London October 30th. While at Havre the weather was muggy, and a compost heap over the refrigerators added to the heat. Additional salt and ice were purchased at Havre, and all proper exertions were made to prevent deterioration. Nevertheless there was damage to the beef, attributable to the prolongation of the voyage. Upon the evidence it appears that a delay of seven days resulted from the change of course. Though the bill of lading recites that the vessel 'is lying at the port of Boston, and bound for London,' the respondent contends that the vessel was

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not obligated to pursue a direct voyage, and that, by express contract, there is no liability for damage to the beef. The clauses of the bill of lading relied on in defense are the following:

'With liberty to sail with or without pilots, to make deviation, and to call at any intermediate port or ports for any purpose, and to tow and assist vessels in all situations. * * * It is hereby understood and agreed that meat and other cargo to be carried in the refrigerator is to be shipped wholly at the risk of the shipper, and that the steamship owners assume no responsibility whatever therefor during the voyage; and steamships are not to be held liable for any loss or damage to meat or other cargo in the refrigerator, however arising, unless refrigerators are interfered with by the steamship's officers or crew.'

It is not contended that Havre and Flushing are 'intermediate ports.' Reliance is had solely upon the word 'deviation,' to justify the return of the vessel from off Dover to Havre, the detention there, and the trip to Flushing. Citing Hostetter v. Park, 137 U.S. 40, 22 Sup.Ct. 1, the respondent claims that deviation is 'a voluntary departure, without necessity or reasonable cause, from the regular and usual course' of a voyage, and that the use of the word 'deviation' in the bill of lading is an express stipulation 'permitting such deviations, though they be unnecessary and unreasonable. ' This contention disregards, however, a most important part of the context in the opinion in Hostetter v. Park. 'Deviation,' in that opinion, is defined 'in reference to the terms of a policy of marine insurance. ' This limitation of the definition to the special subject-matter under consideration is significant, and in accordance with a well-known rule of interpretation. In its primary signification, the word 'deviation' would include a departure from the direct course of the voyage, whether reasonable or unreasonable, with or without necessity. As, however, from necessity, or in the exercise of a reasonable judgment, departures are made that present no substantial reason for invalidating the contract of insurance, and as known usages are presumed to be in the contemplation of the parties, in construing a contract of insurance the word is not given its broadest meaning, but a meaning consistent with the subject-matter in hand. It then includes only such departures as...

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