The Brantford City

• Decision Date: 02 December 1886
• Citation: 29 F. 373
• Parties: THE BRANTFORD CITY, etc. v. THE BRANTFORD CITY, etc. HATHAWAY and another
• Court: U.S. District Court — Southern District of New York

29 F. 373

THE BRANTFORD CITY, etc.

HATHAWAY and another v. THE BRANTFORD CITY, etc.

United States District Court, S.D. New York.

December 2, 1886

North Ward & Wagstaff and Henry M. Rogers, for libelants.

Wheeler & Cortis, for claimants.

BROWN J.

The libel in this case was filed to recover $40,000, damages for the loss of 234 cattle on a voyage from Boston to West Hartlepool, England. The proofs show that in October, 1880 the libelants made a contract at Boston with Brigham & Co. the local agents of the British steam-ship Brantford City, by the terms of which the libelants were to ship at Boston 'from 250 to 300 head of cattle, as may be needed and demanded by the agents of the steamer; freight to be 85 shillings sterling per head, said cattle to be landed at Deptford, England. ' On the twenty-ninth of October, 260 head were accordingly shipped on board, and bills of lading were given therefor, which contained the following exceptions:

'Loss or damage resulting from * * * stowage, * * * or from any of the following perils, (whether arising from the negligence, default, or error in judgment of the master, mariners, engineers, or others of the crew, or otherwise, howsoever,) excepted, namely: Risk of craft, explosion, or fire at sea in craft, or on shore; boilers, steam, or machinery, or from the consequence of any damage or injury thereto, howsoever such damage or injury may be caused; collision, stranding, or other perils of the seas, rivers, or navigation, of whatever nature or kind soever, and howsoever such collision, stranding, or other peril may be caused. * * * Not accountable for death, loss, or injury, howsoever occasioned. Weights, contents, and value unknown, and not answerable for leakage or breakage.'

The vessel sailed on October 30th; arrived in England on the sixteenth of November; and delivered only 26 of the 260 head that were taken on board. The rest had died, and been thrown overboard, during the voyage.

The libelants allege that the loss of the cattle was occasioned through the negligence of the defendants in the following particulars: First, that the steam-ship was improperly stowed, so as to be unseaworthy when she sailed, having a list to port, and being down by the head; second, that the fittings for the cattle were insufficient and improper, the head-boards were weak and insecurely fastened, and the cleats on the floor insufficient to prevent the cattle from slipping; third, that the ventilation was insufficient; and, fourth, that the navigation was unskillful and negligent.

The claimants deny any negligence; they also set up the stipulations of the bill of lading as a further defense, in case any negligence is established; and they further plead in their answer to the libel that these stipulations are valid by the British law, and that that law governs this case.

The evidence shows that on Sunday, the second day out, the ship met a gale from the S.S.E., with cross-seas. The log of that day reads as follows:

This day commenced with strong wind S.S.E., and showers of and heavy sea, shipping large quantities of water. Noon. Wind and weather do. P.M. Very heavy cross-sea; ship rolling very heavily. Put ship's head to sea, and eased the engines. 4 P.M. Wind veering to the S.W., with heavy squalls. 6 PM. Ship took a very heavy lurch to port, breaking cattle fittings, and throwing the cattle to leeward. Employed all hands righting the cattle. Midnight. Sea decreasing, with moderate S.W. wind. Kept ship her course, full speed.'

The testimony shows that the weather was moderate during the rest of the voyage, except on the 4th and 5th, when there was again much rolling, with further injury to the cattle; but that, as a whole, the passage was not one of any unusual severity for that season of the year.

The steamer was 290 feet long over all, 36 feet beam amid-ships, and her mean draft on this voyage 20 feet 4 inches. Her gross tonnage was 2,371 tons. In her lower hold she carried 1,447 tons of grain and other cargo. On her three decks above she carried, in all, 509 cattle, weighing about 351 tons. The cattle were put in pens or stalls on each side of and facing a central passage-way running fore and aft, each pen holding from four to six cattle. The cattle were tied to head-boards secured to the stanchions. On the lower or orlop deck were 203 cattle, weighing about 140 tons; on the upper 'tween decks, 210 cattle, or about 145 tons; and on the spar deck, 96 cattle, weighing about 67 tons.

The evidence shows that by the heavy lurch to port on the thirty-first of October, above referred to, the steamer was thrown nearly upon her beam-ends, and so continued for a considerable time; that the cattle on all the three decks were hurled to the port side of the ship, breaking through, and carrying away the head-boards on each side, and lay in heaps until extricated during the following night. Some had their limbs broken. In others, their horns were broken and bleeding. Nearly all were more or less crushed, and suffered from the weight of the heaps in which they lay. By this misfortune the courage and spirits of the cattle were broken. Some were so badly injured that they died very shortly after. Some others could not be kept on their feet at all, and the rest only with difficulty. They would not take necessary food or drink. All became more or less overheated and fevered, and they died rapidly, from day to day. Scarcely a day passed that many carcases were not thrown overboard. Moreover, the difficulty and delay in removing the swelling and decaying bodies of the dead, in the feverish air of the ill-ventilated lower decks, increased the misery of the situation, and made existence there scarcely endurable to the attendants. The 26 cattle that alone remained alive were landed in England on the sixteenth of November, much damaged.

Besides the libelants' cattle, 249 others were shipped upon the same trip by one Osborne. A still larger loss proportionately occurred in his shipment, only seven being landed alive. This circumstance leads me to the conclusion, with the other evidence, that the loss of the libelants' cattle is not attributable to their weakness through previous transportation without a sufficient period of rest, as averred in the answer.

A large amount of testimony has been taken, and the case has been argued with the most painstaking thoroughness. Upon the best consideration that I have been able to give to it, in all its aspects, I am satisfied that, whatever faults may be attributable to the ship in respect to her stowage and fittings, the lurch on the evening of the thirty-first of October was the immediate cause of the loss that ensued. Without that, all the other causes combined would, I think, have had comparatively small effect, if any, in producing death of the cattle. This lurch was, doubtless, one of the perils of the sea, provided it was the unavoidable result of the wave that struck the ship at that time; and also provided the ship was navigated with all reasonable prudence and skill to avoid the effect of such waves, having reference to the nature of the cargo. But as all of the cargo above the hold consisted of live-stock, if the cattle fixtures and fastenings were not secure and adequate, or if the foothold furnished the cattle was insufficient, the moment these should give way, from some lurch a little greater than usual, the whole weight of live-stock, amounting to 351 tons, would constitute a suddenly shifting cargo, going over to leeward, as happened in this case; so that what might otherwise have been only a little greater lurch than usual, doing no injury, would result, through this shifting of the live-stock cargo, in throwing the vessel upon her beam ends.

The question to be determined here is whether the vessel's being thrown nearly upon her beam ends can be fairly attributed to a peril of the sea alone, or whether there existed such faults in the navigation of the ship, or in the stowage of the cargo, or in the fittings for the cattle, as were the necessary conditions without which this lurch, to the extent that it reached, and its consequent disaster, would not have occurred. If the latter is the fact, then the loss is not to be deemed a mere peril of the sea, but a result of the ship's negligence, (Transportation Co. v. Downer, 11 Wall. 129,) or, as the bill of lading has it, a 'peril of the seas arising from negligence.'

The loss in this case was not only unusual and extraordinary, but unparalleled. No other similar misfortune in the transportation of cattle is reported. The proof shows that cattle shipped on other vessels, at about the same time that the Brantford City sailed, met either with no loss, or with very slight loss. During the last three months of that year, from October to December, upon many voyages on which cattle were carried, none were lost. One of the claimants' witnesses says that, out of 7,000 cattle shipped during the year, only 40 were lost, or about one-half of 1 per cent.; another witness that, out of 4,500 head, only 4 were lost. The Brantford City, on her two previous voyages, lost but two or three cattle. On the present voyage, out of 509 taken on board, 476 cattle, or 93 per cent., were lost.

That a cattle ship like the Brantford City should be thrown upon her beam ends, or nearly so, is as extraordinary as the nearly total loss of the cattle on board. Upon repeated consideration of all the testimony, I find it impossible to become satisfied that this heavy lurch is reasonably to be accounted for by anything in the weather, the sea, or other circumstances, had the usual and reasonable skill and precautions been observed in the fittings, the stowage, and the navigation of the ship. The evidence, as I have said does not...