Pacific Coast S.S. Co. v. Bancroft-Whitney Co.

• Decision Date: 06 February 1899
• Docket Number: 454.
• Citation: 94 F. 180
• Parties: PACIFIC COAST S.S. CO. v. BANCROFT-WHITNEY CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F. 180

PACIFIC COAST S.S. CO. v. BANCROFT-WHITNEY CO. et al.

No. 454.

United States Court of Appeals, Ninth Circuit.

February 6, 1899

[Copyrighted Material Omitted]

This is a libel in rem, by shippers of goods shipped on board the steamer Queen of the Pacific, belonging to the claimants herein, to recover damages for breach of contract of affreightment. There were a large number of libels filed, which, being of the same nature, were consolidated. The respective proctors agreed to select two cases-- those of the Bancroft-Whitney Company and Hellman, Haas & Co.-- for trial, as it was believed they would fairly present all the questions of law and fact that might arise in the other cases; the disposition of the others to be subject to subsequent arrangement after the final decision herein.

The libelants aver, in substance, that on or about the 28th day of April, 1888, the goods alleged to have been damaged were shipped, in apparent good order and condition, on board the steamship Queen, at the port of San Francisco, for transportation to the port of San Diego, Cal., there to be delivered in like good order and condition; that at said time the Pacific Coast Steamship Company, claimant herein, entered into a contract of affreightment with libelants for the delivery of the goods, certain perils in said agreement excepted; that the Queen sailed for San Diego with said merchandise on board; that, notwithstanding said contract of affreightment, said merchandise was not delivered to libelants at said port, or at any other place, in like good order as received, 'but, on the contrary, said merchandise was returned to said port of San Francisco in a greatly damaged condition, by reason of having been wet with sea water during said voyage, which, by reason of the negligence of said steamship company, its officers and servants, gained access to the interior of said ship, where said merchandise was stowed, to wit, on or about the 30th day of April, A.D. 1888'; that said steamship is now in the Northern district of California; that, in consequence of the injury and damage to said merchandise, the libelants have sustained damage, etc. Exceptions were filed to the libels by the claimant of the vessel, which were overruled by the court. The Queen of the Pacific, 61 F. 213. The claimant then filed answers to the libels. The answers admit that the said merchandise was received on board the Queen, and was not delivered at San Diego, and that it was returned to San Francisco, and was damaged by reason of having been wet with sea water; but deny 'that the same was so wet with sea water during said voyage, or by reason of the negligence of said steamship company, its officers and servants, or either of them; and deny that by reason of such, or any such negligence, sea water, or any water, gained access to the interior of said ship, where said merchandise was stowed,' or at any time, or at all; deny that at the time the libels were filed the said steamship was in the Northern district of California; and aver that for four days prior thereto, and continuously thereafter, the said ship was without the Northern district of California; deny all damages. And, for a further and separate answer and defense, the claimant alleges 'that said steamship Queen of the Pacific was, when she sailed from said port of San Francisco, as in said libel alleged, stout, stanch, strong, and in every respect seaworthy, and in such condition sailed from said port of San Francisco, fully and completely manned, officered, and equipped for her intended voyage, and with merchandise on freight, and a large number of * * * passengers on board of her; that she left * * * San Francisco at about the hour of 2 o'clock p.m. of April 29, 1888; * * * that no unusual incident was known to occur during said 29th of April, 1888; that, about 1 o'clock a.m. of the 30th of April, said steamship was noticed to have a slight list to starboard; that efforts were then made to correct such list by shifting freight to port in the between-decks, and burning coal mostly from the starboard bunkers; that about 2:15 or 2:30 o'clock a.m. of Monday, April 30, 1888, water was discovered to be dropping from a point in the iron bulkhead on the starboard side of the engine room, and about six (6) or eight (8) inches above the deck of the alleyway in the between-decks of the vessel; that an examination then made resulted in water being found in the between-decks of the steamship aft, such water extending about halfway from the side of the ship to the hatch coamings, but the aperture through which such water entered the vessel could not, after diligent search for the same, be discovered; that seamen were put to work passing such water down the hatches into the hold, so as to bring it within reach of the bilge pumps, and such pumps were kept in operation, notwithstanding which the water steadily increased between-decks, and the list of the vessel became so great that about the hour of 5 o'clock a.m. it was deemed by the master of said vessel prudent to make for Port Harford with all convenient speed, which was done, and the said vessel at about the hour of 7 o'clock a.m. of said 30th day of April, 1888, was run upon the beach at said Port Harford, at which place sea water immediately came in over her deck, and nearly filled the vessel with water, and thereby said merchandise became wet with sea water; that the beaching of said steamship was necessary to prevent and avoid a total loss of said steamship, and of all the said merchandise then on board of her, and was done by the master thereof as the result of cool deliberation, and in the exercise of a wise discretion on his part as to what was best to be done, and with the purpose of saving said vessel and cargo, and of rendering entirely safe the lives of all the persons, passengers and crew, 212 in number, then on board of said steamship; that the said Pacific Coast Steamship Company, owner of said steamship, did at all times, and immediately prior to the sailing of said steamship from the said port of San Francisco with such merchandise on board of her, exercise due diligence to make the said steamship in all respects seaworthy, and properly manned, equipped, and supplied for her then intended voyage, to wit, a voyage to San Diego and way ports, and return; that the crew of said steamship was composed, during the times referred to, of persons competent to discharge the duties pertaining to their several stations on board said vessel'; that said merchandise was delivered to, received and carried by, the claimant, under and in pursuance of the laws of the state of California, and the provisions of special contracts made by the libelants and the claimant; and that said merchandise was damaged, if at all, in said state. And, for a still further and separate defense, claimant alleges: That the libels are barred by the laches of the libelants in the prosecution of the same, by the terms of the contract alleged in said libels, which reads as follows: 'It is expressly agreed that all claims against the P.C.S.S. Co., or any of the stockholders of said company, for damages to, or loss of, any of the within merchandise, must be presented to the company within thirty days from date hereof, and that, after thirty days from date hereof, no action, suit, or proceeding in any court of justice shall be brought against said P.C.S.S. Co., or any of the stockholders thereof, for any damage to, or loss of, said merchandise; and the lapse of said thirty days shall be deemed a conclusive bar and release of all right to recover against said company, or any of the stockholders thereof, for any such damage or loss.' That libelants did not present, or cause to be presented, to said company, within such 30 days, their claims for the damages, or any part thereof, as in said libels alleged; nor was this, or any, proceeding commenced in any court within said 30 days, nor at any time prior to the 28th of April, 1892, at which time said steamship was not within the Northern district of California; nor was said steamship seized by the marshal under process until the 4th of May, 1892. That the libels are barred by the provisions of sections 337 and 338 of the Code of Civil Procedure of the state of California. That the same are barred by laches on the part of libelants, by delay in the prosecution of the same for such length of time as constitutes, and is, a bar to a recovery thereof in a court of admiralty.

Under the issues as thus presented, the proctor for libelants at the trial contented himself with introducing the shipping receipts as evidence of the apparent good order and condition of the goods when delivered to the carrier for shipment, and, after offering some testimony as to the damaged state of the shipment of Hellman, Haas & Co., rested their case. Thereupon claimant moved for a judgment in his favor, which was overruled by the court (The Queen of the Pacific, 75 F. 74); and then the claimant introduced evidence in support of the averments in the answer. This evidence did not disclose the cause of the leak, nor the exact locality where the water gained access to the vessel. The court, upon the final hearing, rendered a decree in favor of libelants. The Queen, 78 F. 155.

George W. Towle, Jr., for appellant.

Milton Andros, for appellees.

Before GILBERT and ROSS, Circuit Judge, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts).

The libel of each libelant is in rem against the steamer Queen of the Pacific, owned by the claimant, to recover damages for a breach of contract of affreightment, for the safe delivery of certain merchandise, in apparent good order and condition, at the port of San Diego. There are two libels, but in the discussion we shall...