The Guildhall

• Decision Date: 06 November 1893
• Citation: 58 F. 796
• Parties: THE GUILDHALL. v. THE GUILDHALL. SCHULZE-BERGE et al.
• Court: U.S. District Court — Southern District of New York

58 F. 796

THE GUILDHALL.

SCHULZE-BERGE et al. v. THE GUILDHALL.

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

November 6, 1893

Butler Stillman & Hubbard and Mr. Mynderse, for libelants.

Convers & Kirlin, for respondent.

BROWN District Judge.

The above libel was filed to recover for damage to nine barrels of alizarine out of a cargo of 250 barrels brought from Rotterdam to New York by the steamship Guildhall in November 1892.

The steamer left Rotterdam on the 15th of October. Early on the morning of the 16th she came into collision with the steamship Myra, off the English coast, and incurred damages which made it necessary for her to put into London for repairs. Upon a suit in the English courts, the Guildhall was held solely to blame for the collision; and under the stipulation and admissions in this case, that fact must be assumed here.

After repairs, the steamer sailed from London on the 6th of November, and arrived in New York on the 25th. On the discharge of the cargo, two barrels of the alizarine were found wholly empty, the heads being gone; seven others were partially empty, the hoops having been shoved forward so that the chimes were loose. The log leaves no doubt that the vessel experienced very tempestuous weather on her voyage between London and New York.

The libelants contend that the damage was primarily caused by the shock of collision; and that the damage was afterwards further increased by the failure of the claimants to examine the cargo and to recondition the barrels in London, as might and should have been done on the ship's arrival there; so as to prevent the additional loss by leakage from the seven barrels during the voyage.

The claimants contend that the damage was caused solely by the tempestuous weather; that is, by the excepted 'perils of the seas;' or that under the evidence, it is at least quite as likely to have arisen from that cause as from the collision; that the tempestuous weather was quite sufficient to account for the loss and that if it be uncertain which was the cause, and as likely to be the one cause as the other the action, according to the rule laid down in Clark v Barnwell, 12 How. 272, 280, and in The R. D. Bibber, 8 U.S. App. 42, 2 C. C. A. 50, 50 F. 841, should be dismissed.

As to the cause of the damage, I feel bound to give conclusive weight to the testimony of the first and second mates of the Guildhall, who, on their original examination on December 15th, about three weeks after arrival in New York, both state that the damage was done by the shock of collision; that there was no other way that they could account for it. The damage, as the first officer says, 'showed itself in the ends, mostly; all in the ends; all the damage in the ship was end-on damage.' The barrels were stowed with ends fore and aft, and on discharge were found 'slightly shifted fore and aft;' not at all from side to side.

The answer of the claimants also states that 'whatever loss there was, was caused by the shock of the said collision, or from one or more of the other perils excepted in the bills of lading;' and no allusion is made in the answer to tempestuous weather as the probable cause of damage. The defense relied on was the exceptions in the bill of lading, which embraced 'insufficiency in strength of packages, breakage, and any neglect or defaults of the master, mariners, or others in the service of the owners, collision, perils of the seas,' etc., and provided that 'the rights of the parties in relation to the carriage and delivery under the bill of lading should be governed by English law.' It was not until four or five months after his original testimony that the first officer, upon re-examination on May 5th, suggested tempestuous weather and shifting of the cargo forwards by pitching, as a cause of the loss. They had two gales, he says, of about 36 and 18 hours each:

'Question. In which direction was the cargo shifted, sidewise or forward, or both ways? Answer. Forward, as if it was caused by the pitching of the ship, so you would think, and the casks had slid off their tier. You often discover that, even with boxes. They will slide off either forward or aft. You will often discover that.'

On cross-examination he says he does not desire to change his former testimony; that he intended in his December examination to tell the truth; and that 'his memory then would be much more clear.' That the damaged barrels, however, had not slid off the tiers, is proved by the stevedore who discharged them. He says: 'The stowage was good; the tiers were perfect; but there were one or two barrels damaged in each tier.' 'The casks were strong, heavy, oak casks, with iron bands.' The second mate testified that there was no shifting of the cargo sideways. Though the weather was, doubtless, heavy and tempestuous during the two gales, the whole evidence leaves no doubt in my mind, that the primary cause of the damage was the collision, as the officers originally testified.

If the owners were in no way responsible for the negligence contributing to the collision, the terms of this bill of lading, if valid, would, therefore, absolve them and their vessel from responsibility for the damage. These stipulations are valid by the law of Rotterdam and of England. But the obligation of this steamer, as a common carrier, was to deliver her cargo safely in this country, at the port of New York. As against the consignee and owner here, she cannot commit torts on the high seas against his property with impunity, nor justify such torts, except by some valid contract, proved according to the law of the forum. By numerous decisions of the supreme court of the United States stipulations like these, inserted by a common carrier in a bill of lading, are, first, void as against public policy: Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 441, 9 S.Ct. 469; and secondly, they are not evidence of any contract to that effect on the part of the shipper, or consignee; because unreasonable, and not having the necessary element of voluntary assent. Railroad Co. v. Manufacturing Co., 16 Wall. 318; Railroad Co. v. Lockwood, 17 Wall. 357, 359; Express Co. v. Caldwell, 21 Wall. 266; Railroad Co. v. Stevens, 95 U.S. 659; The Energia, 56 F. 124. Contracts against the public policy of this country cannot be enforced or upheld in our co...