Shaw Supply Co., Inc. v. Charles Nelson Co.

• Citation: 214 P. 19,124 Wash. 305
• Decision Date: 05 April 1923
• Docket Number: 17828.
• Court: Washington Supreme Court
• Parties: SHAW SUPPLY CO., Inc., v. CHARLES NELSON CO.

214 P. 19

124 Wash. 305

SHAW SUPPLY CO., Inc., v. CHARLES NELSON CO.

No. 17828.

Supreme Court of Washington

April 5, 1923

Department 1.

Appeal from Superior Court, Pierce County; Wm. D. Askren, Judge.

Action by the Shaw Supply Company, Incorporated, against the Charles Nelson Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Grosscup & Morrow and Chas. A. Wallace, all of Tacoma, for appellant.

Cosgrove & Terhune, of Seattle, for respondent.

MACKINTOSH J.

The appellant purchased in San Francisco six packages of photographic supplies, which, on August 27 1920, were delivered in good condition at that city to the respondent for transportation by sea to Tacoma, Wash. The packages, which were of the value of $860.11, were delivered at Tacoma damaged and destroyed by salt water. The answer to the complaint, stating the foregoing facts and seeking the value of the goods, defended on the ground that the damage to the shipment was due to a peril of the sea. The answer also contained a second affirmative defense, which pleaded that paragraph 6 of the bill of lading under which the goods were carried provided as follows:

'No suit or any such claim so presented or to recover for any such loss or damage, etc., shall be maintained unless such claim be so presented and such suit be thereupon commenced and summons served on carrier within sixty days from and after the day and date that such claim be so presented, provided that if carrier shall in writing expressly grant further time for the commencement of such suit, the same may be commenced within the time so granted therefor; and every such suit not so commenced within said sixty days or within such further time so granted by carrier shall be and by every court be held to be barred, and all claims and demands against carrier alleged by complaint therein shall be so held to have been released by shipper owner and consignee and to be abandoned and barred.'

The answer further alleged that the action was not brought within the time provided in this paragraph. The affirmative matter in the answer was denied, and a separate reply was made to the second affirmative defense, in which it is alleged that the bill of lading, if any were issued, was not signed by the shipper or consignee and was issued and accepted in contemplation of the law of California in force and effect at the time the bill of lading was accepted, and, according to such law, a provision such as contained in paragraph 6 of the bill of lading was of no effect unless the bill of lading were signed by the shipper or consignee. As a further affirmative reply to the second affirmative defense the appellant pleaded that it had filed its claim immediately after the discovery of the damage to the goods and negotiations for settlement had been commenced and were continued up to, and within, a period of less than 30 days before the commencement of this action. The trial court found that the facts sustained the first affirmative defense that the damage was occasioned by a peril of the sea and dismissed the action.

The pleadings admitting that the damage was caused by salt water which came through the deck of the vessel, respondent then had the burden to show that this was the result of a peril of the sea which would exempt it from liability under its bill of lading and under the provisions of the 'Harter Act' (U. S. Comp. St. §§ 8029-8035). As we read the evidence, the prima facie case made by the appellant by showing the delivery of the goods in good condition to the carrier, and the delivery by the carrier to it of the goods damaged, was not overcome by the evidence introduced on behalf of the respondent.

It is unnecessary to attempt to define exactly what is meant by the term 'peril of the sea.' The authorities will be found at considerable variance when they attempt to lay down in definite language exactly what is necessary to create such peril. Some of the authorities would seem to define 'peril of the sea' so strictly against the carrier that, in order to be relieved, the peril must have been, approximately, what is known to the law as an act of God. The Giulia, 218 F. 744, 134 C. C. A. 422, which holds 'perils of the sea' to be:

'Those perils which are peculiar to the sea, and which are of an extraordinary nature or arise from irresistible force or overwhelming power, and which cannot be guarded against by the ordinary exertions of human skill and prudence.'

This is illustrative of one line of cases, and the following quotation from The Frey, 106 F. 323, 45 C. C. A. 313, illustrates another line of equal authority:

'There is no rule by which it can be defined with accuracy what degree of violence of the wind or waves is necessary to constitute a peril of the sea. Different cases must be determined according to their special circumstances. The term, of course, refers to only such forces of the elements as cannot be resisted by the ordinary exertions of human skill and prudence. * * * It cannot be predicated what degree of rolling and pitching will displace a cargo properly stowed and adjusted. It sometimes happens that vessels receive what seamen term 'an unlucky twist' in seas not extraordinarily rough. When it appears that the vessel was seaworthy as respects her intrinsic condition and the fulfillment of all other conditions incident to the prosecution of the voyage, and the cargo has been properly stowed and protected, and it is shown that the injury was sustained during cross seas of unusual violence, the loss may fairly be attributed to a peril of the seas.'

We say that it is unnecessary to determine whether the conditions on the voyage were such as to constitute a peril of the sea for the reason that the testimony is not at all satisfactory as to what really occasioned the damage. The goods were stowed between decks below where the housing joined the after deck. An examination of the place of their stowage showed that salt water had leaked through one of the deck seams for a comparatively short distance; the entire seam apparently not having opened up. So far as this cargo was concerned, the ship was unseaworthy; but whether this was a condition that existed prior to leaving the port of San Francisco or later on the voyage, and whether it was occasioned by extraordinary conditions, or was the result of other circumstances, is not sufficiently disclosed. To relieve itself from liability, the carrier must rely upon section 3 of the act of Congress of February 13, 1897, known as the 'Harter Act,' from which we quote the following:

'That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America 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 damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable

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