Unione Austriaca di Navigazione of Trieste, Austria v. Leon G. Tujague & Co.

• Decision Date: 10 March 1916
• Docket Number: 2853.
• Citation: 231 F. 427
• Parties: UNIONE AUSTRIACA DI NAVIGAZIONE, OF TRIESTE, AUSTRIA, et al. v. LEON G. TUJAGUE & CO. et al. THE GERTY.
• Court: U.S. Court of Appeals — Fifth Circuit

231 F. 427

UNIONE AUSTRIACA DI NAVIGAZIONE, OF TRIESTE, AUSTRIA, et al. v. LEON G. TUJAGUE & CO. et al.

THE GERTY.

No. 2853.

United States Court of Appeals, Fifth Circuit.

March 10, 1916

The appellees, Leon G. Tujague & Co., libeled the steamship Gerty, alleging damage to a consignment of lemons shipped from Palermo to New Orleans on that steamship, caused by fumigation of the ship at Havana by the quarantine authorities of the United States. The other appellees intervened with like claims against the ship for damage to other consignments of lemons alleged to have been due to the same cause. The appellant, through the master of the Gerty filed a claim to the ship. The court below rendered a decree in favor of the libelant and each of the interveners for differing amounts, assessed as the damage to each shipment by the special master, to whom the matter was referred, and from this decree the claimants of the ship have taken this appeal.

George Denegre, Victor Leovy, and Henry H. Chaffe, all of New Orleans, La., for appellant.

William Grant and William B. Grant, both of New Orleans, La., for appellees.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge (after stating the facts as above).

The appellant denies liability for the damage alleged to have been done the lemons upon two grounds. It contends that the fumigation alleged to have caused the injury was done by public authority and under compulsion, and that it was not known at the time the master submitted to fumigation that injury to the lemons would probably result therefrom, and that such injury could not have been reasonably apprehended by the master, and, as negligence was essential to libelants' right of recovery, there could be none where injury to the lemons could not have been reasonably apprehended by the master from the fumigation.

It is clear that, if the ship submitted to fumigation because of a paramount public authority commanding it and was guilty of no negligence, there would be no liability. As the ship had cargo for the port of Havana, it cannot be said to have been guilty of negligence in stopping there to discharge cargo. Austrian Union S.S. Co. v. Calafiore, 194 F. 377 114 C.C.A. 295. It is in evidence that if the ship had discharged her cargo from the Havana harbor in lighters, or from a rat-proof wharf, no fumigation would have been required by the quarantine officers. It is also clear that the only result of the ship's not submitting to fumigation at Havana was that she be fumigated on her arrival in New Orleans, either before or after discharging cargo. Under these circumstances, the principle of immunity to a carrier for injury done by paramount public authority has no application.

The government quarantine officials in Havana had no extraterritorial jurisdiction to enforce fumigation. The only penalty they could exact of the ship was the necessity of submitting to it in New Orleans, if not administered in Havana. Even this penalty could have been avoided by discharging the cargo from the harbor at Havana or at a rat-proof wharf. Under these conditions, if injury to the cargo was so probable a result of fumigation as to make the submitting to it by the master negligence, the ship would be liable for any injury to the cargo thereby caused. Submission under such circumstances would be voluntary and not compelled by paramount public authority. The question resolves itself into the inquiry as to whether the master should have reasonably apprehended injury to the lemons from fumigation when he submitted his ship to it. The appellant's agents in Havana had notice before the ship's arrival of the quarantine regulations, and of the necessity for discharging from the harbor or at a rat-proof wharf, in order to escape the necessity of fumigation either at Havana or at New Orleans.

The evidence is in conflict as to whether the condition of the lemons, as testified to, upon arrival in New Orleans, was due to the fumigation at Havana. We...