Corsar v. J.D. Spreckels & Bros. Co.

• Decision Date: 16 October 1905
• Docket Number: 1,167.
• Citation: 141 F. 260
• Parties: CORSAR v. J. D. SPRECKELS & BROS. CO. J. D. SPRECKELS & BROS. CO. v. CORSAR.
• Court: U.S. Court of Appeals — Ninth Circuit

141 F. 260

CORSAR v. J. D. SPRECKELS & BROS. CO.

J. D. SPRECKELS & BROS. CO. v. CORSAR.

No. 1,167.

United States Court of Appeals, Ninth Circuit.

October 16, 1905

Page McCutchen & Knight, for appellant.

Nathan H. Frank, for appellee.

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

ROSS Circuit Judge.

The ship Musselcrag, owned by C. W. Corsar, sailed from Antwerp on the 19th day of July, 1899, laden with a cargo of cement and bound for San Francisco, which place was reached 315 days thereafter, whereas her voyage under ordinary conditions should not have exceeded 140 days. A part of the cargo was jettisoned on the way, and a part of it was badly damaged resulting in this libel by its consignee, J. D. Spreckels &amp Bros. Company, by which the libelant seeks to recover $1,233 for the cement totally lost, and $11,500 for that damaged; the averments of the libel being that such loss and damage were occasioned by the unseaworthy condition on the vessel and the carelessness and negligence of her master. It appears that the ship encountered such severe weather off Cape Horn that her master deemed it best to abandon his effort to round that cape and to shape his course for the Cape of Good Hope, which he did. At the time of doing so the ship was about 60 miles from Staten Island, and about 370 miles from Port Stanley, in the Falkland Islands.

On the trial it was contended on behalf of the libelant that the ship was unseaworthy for the voyage, because of the improper stowage of the cargo; that the primary cause of the loss complained of was such defective stowage; and, further, that when the master of the ship determined to abandon his effort to round Cape Horn, he was guilty of fault in not going, for the protection of the cargo, to Port Stanley, where it is conceded his vessel could have been repaired. The court below held that the ship was properly stowed and in every way seaworthy, from which decision the libelant appeals, but further held that it was liable in damages for the failure of the master to seek repairs at Port Stanley, and gave the libelant damages for such of the injury to the cement as it found was sustained by the failure of the master to seek refuge and repairs at Port Stanley, from which ruling the claimant appeals.

The conclusion of the court below in the latter respect was based upon the theory that there was a failure of duty on the part of the ship in the 'custody, care, or proper delivery' of the cargo, as defined in section 2 of the Act of Congress of February 13, 1893, known as the 'Harter Act' (27 Stat. 445, c. 105 (U.S. Comp. St. 1901, p. 2946)). The first section of that act provides that it shall be unlawful to insert in any bill of lading any agreement relieving the vessel of her owner from liability 'for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge,' and declaring all words and clauses of such import to be 'null and void, and of no effect. ' The second section of the act makes it unlawful to insert in a bill of lading any agreement whereby the obligations of the owner of a vessel 'to exercise due diligence, properly equip, * * * and to make said vessel seaworthy, * * * or whereby the obligations of the master, officers, or servants, to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided. ' Section 3 of the same act provides that if the owner 'shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers shall become or be held responsible for loss or damage resulting from faults or errors in navigation or in the management of said vessel. ' It will be thus seen that by virtue of the Harter act the ship is still held, as theretofore, responsible for loss or damage arising from negligence, fault, or failure in the proper custody, care, or delivery of the cargo, and at the same time is exonerated from damage or loss resulting from faults or errors in navigation or in the management of the vessel, where due diligence has been exercised to properly man, equip, and supply it, and to make it in all respects seaworthy. It will not do to so construe these provisions as to make them nullify each other. On the contrary, they must be so read as to give effect to each, if possible.

Undoubtedly a fault or error in the navigation or management of a vessel carrying cargo may, and often does, result in injury to the 'custody, care and delivery' of the cargo. And the very object of the act was, as said by the Supreme Court in the case of The Delaware, 161 U.S. 471, 16 Sup.Ct. 522, 40 L.Ed. 771, 'to modify the relations previously existing between the vessel and her cargo. ' But, if the owner of the vessel has performed his duty by making the vessel in all respects seaworthy for the voyage it undertakes, it is plain that neither he nor the vessel can be held responsible for any merely incidental damage resulting to the cargo from a fault or error in its subsequent navigation or management, if section 3 of the act is to be given any force. So in the case of The Silvia, 171 U.S. 462, 19 Sup.Ct. 7, 43 L.Ed. 241, where the portholes of the ship between decks were fitted with the usual glass covers and the usual iron shutters, with no cargo stowed against them, and capable of being speedily got at and closed if occasion should require, the Supreme Court held that the ship was not unseaworthy by reason of beginning her voyage in fair weather with the iron shutters left open for the admission of light-- the glass covers being tightly closed-- and that any subsequent neglect in not closing the iron shutters was a fault or error in navigation or in the management of the vessel, within the meaning of section 3 of the Harter act; the court saying:

'This case does not require a comprehensive definition of the words 'navigation' and 'management' of a vessel, within the meaning of the act of Congress. They might not include stowage of cargo, not affecting the fitness of the ship to carry her cargo. But they do include, at the least, the control, during the voyage, of everything with which the vessel is equipped for the purpose of protecting her and her cargo against the inroad of the seas; and if there was any neglect in not closing the iron covers of the ports, it was a fault or error in the navigation or in the management of the ship. This view accords with the result of the English decisions upon the meaning of these words.'

In the case in hand, the record shows that for about seven weeks the ship in question struggled with wind and wave in the effort to round Cape Horn, resulting in the carrying away of her sails, a part of her rigging, and the battering and exhausting of a number of her crew, in view of which conditions, and the continuation of the tempestuous weather, the master deemed it best to abandon the effort to round that cape, and to change his course for Cape of Good Hope. The question confronting him was primarily and essentially one of navigation-- how best, in view of the trying circumstances in which he was placed, to deal with the elements and get his ship, with her crew and cargo, to the place of destination. That his action in determining that question was primarily and essentially one of navigation, does not, in our opinion, admit of the slightest doubt; and, being such, neither the ship nor her owner is responsible for any incidental damage sustained by the cargo, because of the provision of the third section of the act of Congress above referred to. The Germanic, 196 U.S. 597, 598, 25 Sup.Ct. 317, 49 L.Ed. 610. See, also, The Merida, 107 F. 146, 46 C.C.A. 208; The Viola (D.C.) 59 F. 632; Knott v. Botany Mills (D.C.) 76 F. 584; The Glenochil (1896) Prob. Div. 10 Asp.N.S. 218.

There is nothing to the contrary in the decision of the Supreme Court in the case of Knott v. Botany Mills, 179 U.S. 69, 21 Sup.Ct. 30, 45 L.Ed. 90. On the contrary, the court in that case, as in the case of The Sylvia, supra, recognized the correctness of the construction put upon the first and third sections of the Harter act by Sir Francis Jeune, in The Glenochil, supra, to wit, that those sections may be reconciled by holding:

'First, that the act prevents exemptions in the case of direct want to care in respect to the cargo; and, secondly, the exemption permitted is in respect to a fault primarily connected with the navigation and management of the vessel, and not with the cargo.'

We are, therefore, of opinion that if it be true, as the court below held, that the Musselcrag was in all respects seaworthy for the voyage she undertook at the time of entering upon it, neither the ship nor her owner was responsible for any part of the damage sustained by the cargo by reason of the action of the master in shaping his course for the Cape of Good Hope instead of going to Port Stanley. But, if the ship in question was not seaworthy for the voyage she undertook at the time of entering upon it, then, clearly, the libelant is entitled to recover for all of the loss and damage sustained. We therefore proceed to the consideration of that question.

The obligation upon the part of the ship to deliver the cement to the consignee at San Francisco in good order and well conditioned, excepted, among other things, 'the perils of the sea.' 'Perils of the sea' was undoubtedly one of the causes for the jettison of the cement that was totally lost and for the wetting and consequent damage of the balance. But it is well settled, as said by the Supreme Court in ...