Clyde S.S. Co. v. Burrows

• Decision Date: 02 July 1895
• Citation: 18 So. 349,36 Fla. 121
• Parties: CLYDE STEAMSHIP CO. v. BURROWS et al.
• Court: Florida Supreme Court

18 So. 349

36 Fla. 121

CLYDE STEAMSHIP CO. v. BURROWS et al.

Florida Supreme Court

July 2, 1895

Appeal from circuit court, Duval county; W. B. Young, Judge.

Action by Burrows & Daniel against the Clyde Steamship Company to recover for goods lost in transportation. Plaintiffs had judgment, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. By the common-law rule, common carriers are held to a very strict accountability for the loss of goods received for carriage; such accountability being independent of contract and imposed by law on grounds of public policy and commercial necessity, for the protection of the owner of the goods.

2. In the absence of a special contract restricting or modifying a common carrier's common-law liability in some particular which the courts may not consider unreasonable, or subversive of public policy, such carrier is an insurer against all risks of loss or injury, except those resulting directly from the act of God or the public enemy, and without the intervention of human agency, while the carrier is in the line of duty.

3. The expression 'perils of the sea' is not synonymous, in legal signification, with the terms 'act of God,' or the 'public enemy.' An act of God may include a peril of the sea, but there may be perils of the sea not embraced within the term 'act of God.'

4. Where the defense interposed by plea to a declaration against a common carrier for failure to safely transport and deliver goods received for shipment is that the goods were lost by an accident resulting from a peril of the sea, and issue is joined thereon, the case will be considered on the issue tendered and accepted.

5. A defense on the ground that a common carrier is exempt from its common-law liability under a contract of affreightment must specially allege the contract of release, and the burden is upon the carrier to maintain such defense.

6. Where the testimony, without contradiction, sustains a plea setting up a defense upon which issue is joined, the finding of a referee contrary thereto will be reversed.

COUNSEL

John E. Hartridge, for appellant.

Call & Adams, for appellees. Appellees sued appellant and obtained judgment in July, 1891, and the case is before us on appeal from the judgment entered.

The declaration, in substance, alleged the steamship company to be a corporation existing under the laws of the state of New York, and a common carrier of goods and chattels, for hire in navigating a line of steamships between the city of Jacksonville, Fla., and the city of New York, in the state of New York; that on the 4th day of March, 1890, plaintiffs, at the request of defendant, caused to be shipped on the Delaware, one of the vessels of defendant, 1,300 shad fish of the value of $254, in good order and condition, properly packed in ice, to be taken care of, and safely carried by defendant from the city of Jacksonville to New York, and there to be safely delivered in like good order and condition; that in consideration thereof, and of certain reward, defendant promised to take care of, and safely carry and deliver, said goods, and although it received the same to be carried and delivered as aforesaid, and although a reasonable time for the carrying and delivering of the same had long since elapsed, yet it did not and would not take care of and safely deliver the goods, though no dangers of navigation prevented it from so doing, but took so little and such bad care of such goods, while in its care and custody, that by and through its negligence in not keeping said goods properly packed in ice, and its other negligence, the same were wholly lost to plaintiffs.

Defendant first filed two pleas,--that it did not promise in the manner alleged, and that plaintiffs did not ship the goods mentioned on the Delaware, or any other vessel of defendant.

The case was referred to a referee for trial, and at a subsequent date a special plea was filed, to which a demurrer was directed. The demurrer was sustained, and it appears that amended pleas were filed. No question is raised here as to the ruling on the demurrer to the special plea, and as it is made to appear that the only pleas relied on, and upon which issue was joined, were the amended pleas, we will refer only to them.

The first amended plea alleged that one of defendant's steamships received on or about the 4th day of March, 1890 from a steamer plying the St. Johns river, 13 boxes of shad, marked 'Caleb Haley & Co., New York City,' and sailed with the fish on board for New York, via Charleston, S. C.; that the ship reached Charleston in due time, and, upon arrival, had the fish carefully and adequately re-iced, and departed from said port on the 6th of March for New York; that the ship was seaworthy in all respects, had a competent master, sufficient crew, and was supplied with the best appliance for being properly navigated, and that the machinery and appliances were carefully tested before leaving port, and found in good condition; that when off the coast of North Carolina, while being properly navigated in the usual way, and without delay, the vessel encountered a heavy northeast gale, with a high and dangerous sea, that loosened her rudder post at the bottom, rendering it impossible to navigate her, and that said accident was caused by the peril of the sea, and without negligence or lack of care and management on the part of defendant; that by reason of said casualty the ship was prevented from completing her voyage on schedule time, and was compelled to put into the small town of Southport, N. C., and procure the services of a diver to secure the rudder post with chains, and, while in said port, diligent effort was made to procure ice for the protection of the fish, but none could there be had; that the ship departed for New York on the 11th of March, 1890, under a convoy steamer, and the casualty mentioned was unavoidable, and caused an inevitable delay, by reason of which the fish spoiled, and became unfit for use, and the decay was due to the intrinsic tendency of the fish to spoil, and not through any negligence of defendant. It was further alleged that the defendant was without sufficient quantity of ice for preserving fish for such an unusual and unforeseen delay, and could not procure it, and that the fish became unfit for use, offensive, and dangerous to the health of the passengers, and had to be thrown overboard.

The second plea alleged that the fish were perishable property, carried at the owners' risk of damage arising from natural causes, and that they decayed and spoiled by reason of the inherent quality of the same, which was a natural cause, by reason of which, and inherent defects, they became a total loss.

Plaintiffs joined issue on the foregoing pleas, and the trial was had thereon.

The other facts necessary to be stated will appear in the opinion.

OPINION

MABRY C.J. (after stating the facts).

There is very little disagreement about the facts of this case. That the steamship company is a common carrier, and received the fish in good condition, properly packed in ice, for transmission to New York, is not questioned on the record. It is conceded, further, that the shipment of the fish was without any bill of lading, and there was no special contract, in writing, fixing or limiting the liability of the company in reference thereto.

It is insisted by counsel for appellant that the referee erred in holding, on the facts of the case, that the company was not released from liability for the loss of the fish resulting from decay, and this contention is based upon two...