Custave Jahn v. Steamship Folmina

• Decision Date: 23 February 1909
• Docket Number: No. 84,84
• Citation: 212 U.S. 354,53 L.Ed. 546,29 S.Ct. 363
• Parties: CUSTAVE A. JAHN et al., v. STEAMSHIP FOLMINA, William Van Eyken, Claimant
• Court: U.S. Supreme Court

212 U.S. 354

29 S.Ct. 363

53 L.Ed. 546

CUSTAVE A. JAHN et al.,

v STEAMSHIP FOLMINA, William Van Eyken, Claimant.

No. 84.

Argued January 21, 22, 1909.

Decided February 23, 1909.

Messrs. Frederick M. Brown and Wallace, Butler, & Brown for Jahn et al.

[Argument of Counsel from pages 355-356 intentionally omitted] Messrs. J. Parker Kirlin, John M. Woolsey, and Charles R. Hickox for the Folmina.

[Argument of Counsel from pages 357-359 intentionally omitted] Mr. Justice White delivered the opinion of the court:

Upon the hearing of an appeal from a decree of the district court, eastern district of New York, dismissing a libel, the circuit court of appeals for the second circuit certified to this court for decision, pursuant to § 6 of the judiciary act of 1891 [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549], the following questions:

1. Whether damage to the cargo of an apparently seaworthy ship, through the unexplained explained admission of sea water, in the absence of any proof of fault on the part of the officers or crew of the ship, is of itself a sea peril within the meaning of an exception in a bill of lading exempting the carrier from 'the act of God . . . loss or damage from . . . explosion, heat or fire on board . . . risk of craft or hulk or transshipment, and all and every the dangers and accidents of the seas, rivers, and canals and of navigation of whatever nature or kind.'

2. Whether the ship is relieved from liability in consequence of said exception?

The facts upon which the questions arose were thus stated in the certificate:

The steamship Folmina sailed from Kobe, Japan, for New York with a large shipment of rice on board in No. 3 hold, under a bill of lading which contained the exception set out in the first of the foregoing questions, and also a provision that the ship 'is not liable for sweat, rust, decay, vermin, rain, or spray.'

The rice was in good order when put on board, but, when discharged in New York, a large part of it stowed on the starboard side of the hold was found damaged. The area of injury was downward from the first six tiers of bags to the bottom of the hold, which was dry, forward from about the after end of the hatchway nearly to the bulkhead, and inboard about three or four bags. The damage was caused by water and consequent heat.

A majority of the court are satisfied that the damage was caused by sea water, and that it was not shown that the vessel encountered sufficient stress of weather to warrant the inference that it came in because of the action of external causes. There was no evidence tending to show any negligence, fault, or error on the part of the ship's officers or crew; the cargo was well stowed and ventilated.

The Folmina was a steel steamship of the highest class in Lloyd's register. Before starting for Japan she was in dry dock at New York and was there surveyed by Lloyd's surveyor. Some time before she had been in dry dock at Cardiff, where some repairs were made to the rudder, rudder quadrant, and a ventilator. The master testified to the general good condition of the steamer at the time she sailed from Kobe.

During and after the delivery of the cargo the main deck, the between deck, the pipes leading to or connected with No. 3 hold, and the shell plating in the wing of No. 3 hold were carefully examined by the officers of the ship, by surveyors representing the libellants and their underwriters, and it was afterwards examined by competent and experienced surveyors representing both parties. The decks, hull, side plating, and rivets of the ship were found to be sound, intact, and free from leaks. No evidence (other than the mere circumstance that the damage was by sea water, if that be considered evidence) was found that there had been leaks in part of the frame, structure, side plating, riveting, pipes, or appurtenances of the ship, through which water might have reached that part of No. 3 hold where the damage was done. No adequate means of access of sea water were found, nor any defect in the steamer, which then appeared to be seaworthy.

The answer to be given to the first question will be fixed by determining upon whom rests the burden of proof to show the cause of the damage, when goods which have been received by a carrier in good order are by him delivered in a damaged condition.

As said in Liverpool & G. W. S. S. Co. v. Phenix Ins. Co. 129 U. S. 397, 437, 32 L. ed. 788, 790, 9 Sup. Ct. Rep. 469, 470:

'By the settled law, in the absence of some valid agreement to the contrary, the owner of a general ship, carrying goods for hire, whether employed in internal, in coasting, or in foreign commerce, is a common carrier, with the liability of an insurer against all losses, except only such two irresistible causes as the act of God and public enemies. Molloy, De Jure Maritimo, bk. 2, chap. 2, § 2; Bacon, Abr. 'Carrier.' A; Barclay v. Cuculla y Gana, 3 Dougl. K. B. 389; 2 Kent, Com. 598, 599; Story, Bailm. § 501; The Niagara v. Cordes, 21 How. 7, 23, 16 L. ed. 41, 46; The Lady Pike (Germania Ins. Co. v. The Lady Pike) 21 Wall. 1, 14,

And as observed in the same case:

'Special contracts between the carrier and the customer, the terms of which are just and reasonable, and not contrary to public policy, are upheld; such as those exempting the carrier from responsibility for losses happening from accident, or from dangers of navigation that no human skill or diligence can guard against.'

It was long since settled in Clark v. Barnwell, 12 How. 272, 13 L. ed. 985, that where goods are received in good order on board of a vessel under a bill of lading agreeing to deliver them, at the...