The Queen of the Pacific

• Decision Date: 12 May 1896
• Docket Number: 10,301.
• Court: U.S. District Court — Northern District of California
• Parties: THE QUEEN OF the PACIFIC. v. THE QUEEN OF THE PACIFIC. BANCROFT-WHITNEY CO. et al.

75 F. 74

THE QUEEN OF the PACIFIC.

BANCROFT-WHITNEY CO. et al. v. THE QUEEN OF THE PACIFIC.

No. 10,301.

United States District Court, N.D. California.

May 12, 1896

Geo. W Towle, for the motion.

Andros & Frank, opposed.

MORROW District Judge.

This case coming on for hearing, and the libelants having rested their case, proctor for claimant moved the court for judgment in his favor on several grounds, which are as follows: (1) That the testimony does not show that the steamship was within the Northern district of California when the libel was filed: (2) that there is no testimony that claims for the damages complained of to the goods shipped on board the Queen of the Pacific were filed or presented to the steamship company within 30 days from the date of the shipping receipts, in compliance with the stipulation to that effect contained in the receipts; and (3) that there is no testimony tending to show that the damage complained of was occasioned by the negligence of the carrier.

Taking these questions up in their order, and very briefly, it may be said that I do not think the first point is well taken. There is testimony tending to establish that the steamship was within the jurisdiction of the court when the libel was filed.

The second point was disposed of on the exceptions heretofore raised to the sufficiency of the allegations of the libel. I then held that a provision in the shipping receipts that all claims against the steamship company or any of its stockholders for damage to the goods must be presented within 30 days from the date thereof, as a condition precedent to maintaining a suit against such company or its stockholders did not cover or affect the right to maintain a suit in rem against the ship; and I held, further, that the period of 30 days, assuming that such provision did apply to proceedings in rem against the vessel, was unreasonably short, and therefore void, as against public policy. See The Queen of the Pacific, 61 F. 213, 217. This, therefore, must be accepted as the law of the case.

With respect to the third point, the averments of the libel and the denials and admissions and averments of the answer are important. The libel alleges that the goods claimed to have been damaged were shipped in good order and condition on board the steamship Queen of the Pacific, at the port of San Francisco, for transportation to the port of San Diego, Cal that thereafter said steamship sailed from the port of San Francisco, with said goods on board, bound for said port of San Diego; that said merchandise was never delivered at the port of San Diego, but was subsequently returned to the port of San Francisco in a greatly damaged condition, by reason of having been wet with sea water during said voyage, which, by reason of the negligence of said steamship company, its officers and servants, gained access to the interior of said ship, where said merchandise was stowed. The answer admits that said merchandise was damaged by reason of having been wet with sea water, and that it was not delivered at San Diego, but was returned to San Francisco, but denies that the same was so wet with sea water during said voyage, or by reason of the negligence of said steamship company, its officers and servants, or either of them, and denies that by reason of such, or any such, negligence, sea water, or any water, gained access to the interior of said ship, where said merchandise was stowed. As a further and separate defense and answer, the claimant alleges, substantially, that the said steamship was, when she sailed from the port of San Francisco, stout, staunch, strong, and in every respect seaworthy, completely manned, officered, and equipped for her then intended voyage; that she left San Francisco on April 29, 1888, at about 2 o'clock p.m., and proceeded down the bay, out through the Golden Gate, across the bar, and on her course in a southerly direction, with a fresh northwest wind blowing and a northwest chop sea; that no unusual incident was known to occur during said 29th of April, 1888; that about 1 o'clock a.m. of the 30th day of April said steamship was noticed to have a slight list to starboard; that efforts were then made to correct such list by shifting freight to port in the between-decks and burning coal mostly from the starboard bunkers; that about 2:15 or 2:30 o'clock a.m. of Monday, April 30th, water was discovered to be dropping from a point in the iron bulkhead on the starboard side of the engine room, and about six or eight inches above the deck of the alley way in the between-decks of the vessel; that examination then made resulted in water being found in the between-decks of the steamship aft, such water extending about halfway from the side of the ship to the hatch combings, but the aperture through which such water entered the vessel could not, after diligent search for the same, be discovered; that seamen were put to work passing such water down the hatches into the hold, so as to bring it within reach of the bilge pumps, and such pumps were kept in operation, notwithstanding which the water steadily increased between-decks, and the list of the vessel became so great that, about the hour of 5 o'clock a.m., it was deemed by the master of said vessel prudent to make for Port Harford with all convenient speed, which was done, and the said vessel, at about the hour of 7 o'clock a.m. of said 30th day of April, 1888, was run upon the beach at said Port Harford, at which place sea water immediately came in over her deck, and nearly filled the vessel with water, and thereby said merchandise became wet with sea water; that the beaching of said steamship was necessary to prevent and avoid a total loss of said steamship and of all the said merchandise then on board of her, and was done by the master thereof as the result of cool deliberation, and in the exercise of a wise discretion on his part as to what was best to be done, and with the purpose of saving said vessel and cargo, and of rendering entirely safe the lives of all the persons, passengers and crew, 212 in number, then on board of said steamship.

In this state of the pleadings, the following salient facts may be deemed established: (1) That the libelants' merchandise was shipped under the contracts of affreightment, or 'shipping receipts,' as they are termed, annexed to the libel; (2) that the merchandise was never delivered at the port of destination; (3) that it was returned to San Francisco and delivered to the shippers in a damaged condition; (4) that this damage was by reason of being wet with sea water; (5) that the fact that the vessel was leaking was discovered about 11 hours after the steamer sailed from San Francisco; (6) that the leak increased to such an extent that the vessel was compelled to put into Port Harford, and was there beached, about 17 hours after sailing from San Francisco. It may be observed, also, that there is a general denial that the merchandise was shipped in good order and condition. The following omissions in the answer are significant, in connection with the other averments and denials, and the established facts: (1) It does not appear from the answer what caused the ship to spring a leak. (2) There is no averment that the vessel, after sailing from San Francisco, and before the leak was discovered, encountered any stress of wind or weather to which the leak could be reasonably, or at all, attributed. (3) There is no averment in the answer that the cause of the damage was from a peril of the seas, or any other unavoidable accident.

Such being the state of facts as disclosed by the pleadings proctor for libelants contented himself with introducing the shipping receipts as evidence of the apparent good order and condition of the goods when delivered to the carrier for shipment. Bills of lading afford prima facie evidence that the merchandise was shipped in good order. Zerega v. Poppe, Abb.Adm. 397, Fed.Cas.No. 18, 213; Nelson v. Woodruff, 1 Black, 156; Turner v. The Black Warrior, 1 McAll. 181, Fed.Cas.No. 14,253; The Zone, 2 Spr. 19, Fed.Cas.No. 18,220; Seller v. The Pacific, 1 Or. 409. ^[1] He also introduced testimony respecting the damaged state, when returned to San Francisco, of one of the shipments, and the further fact that the goods comprising that shipment realized less than they would have brought had they been returned in good order and condition. No testimony has as yet been introduced with reference to the other shipments set out in the libel, some 37 in number; the parties having probably arrived at some understanding by which the remaining...