This was a libel in admiralty in the district court of the United States for the Southern district of New York by William W. Brauer and Frederick C. Brauer, residing and doing business as partners under the name of William W. Brauer & Co., at Richmond, in the state of Virginia, and by the Reliance Marine Insurance Company, Limited, of Liverpool, a corporation organized under the laws of Great Britain, against the Compania de Navigacion La Flecha, a corporation organized under the laws of Spain, and owner of the steamship Hugo, to recover for the loss of cattle shipped by the partnership October 24, 1891, on deck of the Hugo, at New York, for Liverpool, under a bill of lading, the material parts of which are copied in the margin, the parts there printed in ordinary type being in print, and those in italics being in writing, in the original. [1]
The libel alleged that the vessel, having 165 head of live cattle on board, sailed for the port of Liverpool on October 24, 1891; that 'about October 31, 1891, the said vessel having encountered some rough weather, the master and crew of said vessel became panicstricken, and drove overboard 126 head of cattle; the said vessel did not incur any extraordinary or unusual stress of weather, and the act of said master and crew in driving overboard said cattle was wholly unnecessary, and the loss of said cattle was due to the incompetency and lack of skill of the master and crew'; that the vessel afterwards arrived safely at Liverpool, and delivered to the shippers or their agents 38 of the cattle in good condition, 1 having died; and that the insurance company, having insured the cattle, paid the partnership for the loss, and took an assignment of its rights of action against the steamer and her owners.
The answer alleged that the receipt, transportation, and delivery of the cattle were subject to the terms and conditions of a contract between the shippers and the respondents, dated October 10, 1891 (which is copied in the margin), and of the bill of lading; admitted the sailing of the vessel with the cattle on board, and a loss of the cattle; denied the other allegations of the libel; and contained the following averments: 'Further answering the said libel, respondent avers that, by the terms and conditions of the contract and bill of lading under which the said cattle were received for transportation and delivery, it was provided that the carrier should not be liable for loss or damage occasioned by causes beyond his control, by the perils of the seas or other waters, or by other accidents of navigation, even when occasioned by the negligence, default, or error in judgment of the master, mariners, or other servants of the shipowner; and that the cattle were carried on deck at the owner's risk, and under a special provision that the steamer should not be held accountable for accident to, or mortality of, the animals, from whatsoever cause arising. There was a further provision that the contract should be construed and governed by the law as administered in the courts of Great Britain, with reference to which law the contract was stated to be and was made.
'And the respondent avers that the loss of said cattle was due to the perils of the sea encountered upon the said voyage, which broke certain of the cattle houses, and set the cattle adrift; and that during the continuance of the perils, and by reason thereof, certain of the cattle were washed overboard, and others were thrown about the deck, bruised and with broken limbs, and reduced to a dead, dying, or hopeless condition; and that, upon such being taken to the gangways, they were washed over by the seas.'
It was stipulated by counsel 'that the English judicial decisions, as contained in the printed decisions of the law or admiralty courts, may be referred to by either party as evidence of the English common or maritime law as administered in the English courts.'
The conclusions of fact of the district judge were summed up in his opinion as follows:
'During three days from October 30th to November 1st, inclusive, the vessel met heavy weather, during which there was heavy rolling of the vessel. The cattle were in pens on deck,-a few forward under and near the turtle-back, which were saved; the rest were in the vicinity of Nos. 3 and 1 hatches, forward and aft of the engine room, in pens built in the wings on the port and starboard sides of the ship, all of which were lost. The storm was heaviest on the afternoon and night of Saturday, the 31st, the wind and seas coming first and heaviest from the northwest, but on Saturday hauling to the northward, and to east-northeast, with cross seas. Some slight damage was done to a few pens on the 30th; more were broken on Saturday, the 31st; but these were repaired and the cattle put in place toward nightfall. About 5 o'clock on that day the after gangways were opened on each side, and about ten or twelve cattle that had become maimed and helpless were sent overboard through those gangways. The chief loss was during that night and the following morning, when, shortly after daylight, the captain gave orders to open the forward gangways also, and the whole deck was cleared of all the cattle save the thirty-nine under the turtle-back. * * *
'Upon the whole testimony in this pitiful case, I am not disposed to pronounce any unfavorable judgment upon the handling of the ship by the master. His record as a master appears to have been good, and on any doubtful question of navigation he is entitled to the benefit of his record. He had some, though not large, experience in the transportation of cattle; and the experts called by each party place so much stress upon the special circumstances of the situation, the quality of the ship, and the necessary determination of the master's own judgment at the time, that in the circumstances testified to I do not find any conclusive proof adverse to the master's judgment as to the navigation of the ship.
'The evidence leaves not the least doubt in my mind, however, that the sacrifice of a considerable number of live cattle that were not maimed or substantially hurt was made on the morning of Sunday, the 1st of November, not from any pressing necessity, but solely from mere apprehension; and I am further persuaded that there was no reasonable or apparent necessity for the sacrifice. It was morning. The night was past. No one testifies to any pressing peril to the ship. The log does not hint of it. No reason appears why such cattle as could go about, and were actually going about, should not have been cared for and preserved. There was plainly no effort made to separate the sound from the mained. Even the master says, in answer to the question: 'Were these cattle standing up that went overboard? Ans. They were down. Some may have been up. I don't know.' His object, plainly, was to clear the deck of all the cattle from No. 3 aft, with no attempt to discriminate or save any. His state of mind is shown by his concluding words, 'We all breathed happily when we saw it open' (No. 3 hatch).'
The district judge was of opinion that the stipulations of the bill of lading, so far as they undertook to exempt the respondent from accountability for the negligence of the master or crew, though valid by the law of England, were invalid by our law; and therefore decreed 'that the libelants recover damages for such of the oxen as were of any market value, and not fatally wounded or maimed at the time when the houses and cleats provided for them were designedly torn up, and which oxen were cast overboard, or negligently suffered to go overboard, through the open gangways, on the morning of November 1st and on the evening of the night previous'; and referred the case to a commissioner to ascertain and report the amount of such damage. 57 Fed. 403.
The commissioner reported that 63 of the cattle were thus voluntarily and unnecessarily sacrificed, and assessed damages for that number of cattle. The district court confirmed his report, and entered a decree accordingly for the libelants. 61 Fed. 860.
Both parties appealed to the circuit court of appeals, which adopted the conclusions of fact of the district court, and affirmed the decree upon the ground that the case was not within the exceptions in the bill of lading. 35 U.S. App. 44, 14 C. C. A. 88, and Fed. 776.
The respondent applied for and obtained a writ of certiorari from court.
Wilhelmus Mynderse, for appellee.
[Argument of Counsel from pages 111-117 intentionally omitted]
W. W. MacFarland, for appellants.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.
Notes edit
- ↑ Received in apparent good order and condition, by the Spanish steamer Hugo, from Wm. W. Brauer & Co., to be transported by the good steamship Hugo, now lying in the port of New York, and bound for Liverpool, one hundred and sixty-five live cattle on deck. On deck at owner's risk; steamer not to be held accountable for accident to, or mortality of, the animals, from whatever cause arising; being marked and numbered as per margin (weight, quality, contents, and value unknown), and to be delivered in like good order and condition at the port of Liverpool (or so near thereto as she may safely get) unto shippers' order, or to his or their assigns. Freight prepaid in New York. General average payable according to York-Antwerp rules.
It is mutually agreed that the ship shall have liberty to sail without pilots; to tow and assist vessels in distress; to deviate for the purpose of saving life or property; that the carrier shall have liberty to convey goods in lighters to and from the ship at the risk of the owners of the goods; and, in case the ship shall put into a port of refuge, or be prevented from any cause from proceeding in the ordinary course of her voyage, to transship the goods to their destination by any other steamship.
It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by causes beyond his control; by the perils of the sea, or other waters; by fire from any cause, and wheresoever occurring; by barratry of the master or crew; by enemies, pirates, or robbers; by arrest and restraint of princes, rulers, or people; riots, strikes, or stoppage of labor; by explosion, bursting of boilers, breakage of shaft, or any latent defect in hull or machinery or appurtenances; by collisions, stranding, or other accidents of navigation, of whatsoever kind (even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowner, not resulting, however, in any case, from want of due diligence by the owners of the ship, or any of them, or by the ship's husband or manager); nor by decay, heating, putrefaction, rust, sweat, change of character, drainage, leakage, breakage, or any loss or damage arising from the nature of the goods or the insufficiency of packages; nor for land damage; nor for the obliteration, errors, insufficiency, or absence of marks or numbers, address or description; nor for risk of craft, hulk, or transshipment; nor for any loss or damage caused by the prolongation of the voyage.
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14. Also, that this contract shall be governed by British law, with reference to which law this contract is made.
And, finally, in accepting this bill of lading, the shipper, owner, and consignee of the goods and the holder of the bill of lading agree to be bound by all of its stipulations, exceptions, and conditions, whether written
or printed, as fully as if they were all signed by such shipper, owner, consignee or holder.
White Star Line. Cattle Contract-Memorandum of Agreement Concluded at New York the Tenth Day of October, 1891, between H. Maitland Kersey, Agent of the Spanish Steamer Hugo, and Messrs. William Brauer & Co., of Richmond, Virginia.
The agent agrees to let to the said shipper suitable space, as undernoted, for the transportation of live cattle; this is to say:
On the steamer Hugo, intended to sail from New York about Oct. 24th, 1891, for Liverpool, England.
For about one hundred sixty live cattle on the upper deck.
No other cattle to be carried this voyage.
The shipper agrees to ship all the cattle, as above mentioned, at the rate of fifty shillings, British sterling, for each animal shipped on open decks.
The shipper especially agrees to prepay freight on the above-mentioned shipments on date of sailing, in current funds at the rate for which prime bankers are selling sight bills on London, on the number of cattle shipped at New York, vessel lost or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality or accident, however caused, throughout the voyage.
Stalls to be put up at ship's expense, and to be constructed to the satisfaction of the inspector or underwriters interested, and to the satisfaction of shipper, who will assume all responsibility for same, and for the various appliances for ventilation after shipment of cattle.
The steamer undertakes to supply sufficient good condensed or fresh water for the use of the animals during the voyage; also water casks and hose.
Steamer to provide space, free of charge, for corn and strictly compressed fodder for animals, but freight, if demanded, shall be payable on any unusual excess of fodder landed at port of destination. If fodder be supplied that is not strictly compressed, a proportionate quantity may be carried on deck.
Steamer to supply suitable gangways and elevators for loading cattle.
Steamer to give free passage over and back and to supply bedding to drovers in charge of animals (not exceeding one man to every thirty cattle), and, if not returning direct to port of sailing, to provide free intermediate passage back for foreman, and free steerage passage back for other attendants, by first available steamer of this line.
Steamer to give six running days' notice of her intended departure, and twelve hours' notice of the hour the cattle must be delivered to her, but such notices to be given or received are subject to become inoperative in case of strike or stoppage of labor.
Steamer guaranties to sail as soon after shipment of all the animals as tide and weather permit, or pay expenses of keep of animals at the rate of 50c. per head per day in full.
Steamer has privilege of exceeding her net register tonnage in grain, upon paying to shippers the extra premium charged by the underwriters with whom the animals are insured.
Shippers to deliver the cattle to the vessel between sunrise and sunset, at the dock or in the stream, at their option.
Shippers guaranty to deliver animals by expiry of notice, provided vessel is ready for them, or to pay for detention of steamer at the rate of £50 per day.
In case of nonarrival of vessel in time to sail from New York on or before November 4, 1891, shipper has option of cancellation.
The line form of live-stock bill of lading to be used for cattle shipped under this contract, and its conditions to govern any questions not provided herein, subject to U.S. government inspection.
Any dispute arising under this contract to be settled by arbitration in the usual way.
Dated New York, October 10th, 1891.
H. Maitland Kersey.
Wm. W. Brauer & Co.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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