Morris v. Lamport & Holt, Limited
| Citation | 54 F.2d 925 |
| Parties | MORRIS et al. v. LAMPORT & HOLT, LIMITED. |
| Decision Date | 23 October 1931 |
| Court | U.S. District Court — Southern District of New York |
Bigham, Englar, Jones & Houston, of New York City (Henry N. Longley and James N. Senecal, both of New York City, of counsel), for libelants.
Slayton & Jackson, of New York City (G. Noyes Slayton, of New York City, of counsel), for respondent.
Suit is brought to recover for cargo damage. The libelant is the indorsee and holder of bills of lading covering a shipment of skins. The respondent, which issued the bills, operates a line of steamships between Brazil and New York. By the bills in question it undertook to carry the skins on the steamer Swinburne from Ceara, a port in Northern Brazil, to New York. The skins were damaged by water while on a lighter in transit from the shore at Ceara to the Swinburne.
Ceara is an open and very shallow harbor. Ships of the draught of the Swinburne stand out a mile or more from shore while lighters bring cargoes out to them. The lighters are loaded from a dock and then are pulled by man power along a large rope or cable stretching from the dock to a buoy 100 fathoms out. Smaller ropes attached to the lighter pass around the large rope and act as loops to keep the lighter from drifting off. On reaching the buoy, the lighter is taken in tow by a tug, and thus is brought to the steamer.
The skins involved in this case were delivered by the shipper to the respondent's agents at Ceara, who signed and delivered the bills of lading. A day or so later the skins were placed on a lighter owned by a Brazilian company and rented to the respondent for the trip. Tarpaulins were spread over the skins. On December 21, 1926, the lighter started on the trip to the Swinburne. While being hauled by the crew along the large rope between the dock and the buoy, and when about one-half out, it was struck by two heavy waves in succession. The large rope broke, leaving the lighter at the mercy of the waves. It was finally beached after it had sustained considerable damage and after some of the skins had been injured by contact with water. The cargo was then placed on another lighter and taken to the Swinburne. All that we know about the rope is that it was of manila and five inches in diameter; it is said to have been practically new, in use only about a month; at times when it was not in use, it was taken from the water and dried out; it was the common property of all who used lighters at Ceara. The sea is described as rough at the time, as is usually the case in the locality.
1. The respondent is a common carrier, and the damage occurred while the goods were in its custody under bills of lading. It is therefore liable for the loss, unless the case falls within one of the exceptions set forth in the bills of lading, in so far as such exceptions may be valid under the Harter Act (46 USCA §§ 190-195). The burden of bringing the case within one of such exceptions is on the carrier. The Patria (D. C.) 125 F. 425; The Rosalia (C. C. A.) 264 F. 285, 288.
An exception said to cover the case is that exempting the carrier from liability for loss caused by perils of the sea. The damage came about through the breaking of the rope under the strain caused by the large waves striking the lighter. Yet the testimony shows that waves of great force were common at the place. At least one witness said that the wind and waves were about the same as when the lighter started out on its trip. Under these circumstances, the loss cannot be said to be the result of a sea peril. That term connotes some violence of the elements which was not reasonably to be expected. "The peril which forms a good exception in a bill of lading means something so catastrophic as to triumph over those safeguards by which skillful and vigilant seamen usually bring ship and cargo to port in safety." The Rosalia, supra. See, also, The Frey (C. C. A.) 106 F. 319; The Skipsea (C. C. A.) 9 F.(2d) 887.
Another exception relied upon is that which absolves the carrier in case of loss due to "risk of craft to or from the ship." The bill of lading goes on to say that the exemption applies whether or not the loss is due to negligence of lighterman. To the extent that the clause purports to relieve the carrier in cases of negligence of the lighterman, it is void under the Harter Act. The...
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