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170; New Jersey Steam Nav. Co. v. Mer- 67. Stowage on deck. — Tower Co. v.
chants' Bank (U. S.), 6 How. 344, 12 L. Southern Pac. Co., 195 Mass. 157, 80 N.
Ed. 465; Railroad Co. v. Manufacturing E. 809.

Co. (U. S.), 16 Wall. 318, 21 L. Ed. 297; Jettison.— See ante. "Jettison," § 4461.

Phoenix Ins. Co. v. Erie, etc., Transp. Co., 68. Loss through leakage. — The Nellie

117 U. S. 312, 29 L. Ed. 873, 6 S. Ct. 750, l-loyd, 116 1<Ym!. 80, affirmed in 122 Fed.

1176. (;i7, 60 C. C. A. 175.



§§ 4469-4472 carriers. 4026

for loss or damage to the cargo in consequence of latent defects in such ap-
paratus which are not due to any fault or negligence on his part, or on the
part of those for whom he is responsible.*'^ But a provision in a bill of lading
that the risk of due refrigeration of meats shall be borne by the shipper, though
damage be caused by neglect of the carrier's servant, does not excuse the car-
rier from the duty of reasonable care to provide a proper refrigerating plant.'^'^

§ 4470. Risk of Mortality or Accident. — The assumption of the risk of
mortality or accident throughout the voyage does not constitute an exemption
of the shipowner from his obligation to furnish a seaworthy vessel at its com-
mencement.'^^

The wrongful jettison of the sound cattle by the act of the carrier's serv-
ants can not reasonably be considered as an "accident to, or mortality of the
animals." ''-

§ 4471. Loss from "Sweating, Natural Decay or Sea Water." — In an

action to recover for damage to a cargo of rice alleged to have been received
by the ship in good condition but to have been delivered at the end of the voy-
age in a damaged condition due to sea water and consequent heating, where
the owners of the vessel clearly show that she was seaworthy and in all respects
properly equipped for the carriage of the cargo at the beginning of the voy-
age, and also at its termination, that the cargo was properly stowed, and that
there was no negligence during the voyage which would account for the entry
of sea water, they have fully established a defense under a bill of lading which
exempted the vessel from liability for damage from sweating, natural decay,
or from sea water caused without the ship's fault or negligence.'^ ^

§ 4472. Loss from Heat or Heating. — The words "heat" and "heating,"
as used in a ship's bill of lading in stating the causes of damage to cargo for
which she should not be liable, are synonymous.'^^ Where a shipment of shel-
lac from Calcutta to New York, made under a bill of lading excepting liability
for loss or damage from heat, was injured by being subjected to an unusually
high degree of heat, which caused it to fuse together, such fact alone is not
sufficient to establish the negligence of the vessel; it being shown that it might
occur without negligence, especially during the passage through the Red Sea,

69. Risk of due refrigeration. — The at the end of the voyage. Held, that due

Prussia, 93 Fed. 837. 35 C. C. A. 625, af- diligence was exercised by the owner of

firming decree, 88 Fed. 531. the vessel to provide suitable and perfect

A steamship company contracted for refrigerating machinery, and that the

the carriage of a consignment of fresh damage arose from a latent defect, for

meat to a European port, the bill of lad- which it was not responsible under the

ing containing a provision expressly ex- terms of the bill of lading. The Prus-

empting the carrier from liability for sia, 93 Fed. 837, 35 C. C. A. 625, affirni-

loss or damage arising from any defect ing decree, 88 Fed. 531.

or insufficiency in the refrigerating appa- 70. The Prussia, 88 Fed. 531, affirming

ratus of the vessel. The meat became decree, 93 Fed. 837, 35 C. C. A. 625.

damaged on the voyage in consequence of 71. Risk of mortality or accident. — The

the failure of the refrigerating machin- Caledonia, 157 U. S. 124, 39 L. Ed. 644,

ery to work properly. The apparatus, as 15 3. Ct. 537.

well as the vessel, was new, had been ^^ Compania De Navigacion La

constructed by competent makers and pj^^j^^ ^_ Brauer, 168 U. S. 104, 42 L-

had been thoroughly tested, and tound ^^ ^gg ^^g g ^^ ^o



73. Loss from "sweating, natural de-



to work perfectly. Its failure to work

properly on this voyage was caused by .. » ta, - !-> 1 • -, .0

the presence in a suction pipe of a leather cay or sea water. -The Folniina 143

washer, which had been inadvertently Fed 636, affirmed m 153 Fed 364. 82 C

left in the interior of the apparatus when g. A. 440, but reversed on rehearmg, 173

it was put together by the makers, and Fed. 615, 97 L. L. A. 557. ^

had gradually worked into the pipe. Its 74. Loss from heat or heatmg.— The

presence could not be detected until the Good Hope, 197 Fed. 149, 116 C. C. A.

machinery was taken apart by an expert 573, affirming decree, 190 Fed. 597.



4027 LIMITATIONS OP LIABILITY. §§ 4472-4477

and that the shehac was stowed in a particularly well-ventilated part of the
vessel."^^

§ 4473. Theft. — An exemption in a bill of lading of liability for loss of cargo
by theft does not relieve the vessel, where there was negligence on her part
which contributed to or facilitated the theftJ^

§4474. Delay in Delivery.— Provisions of a ship's bills of lading that the
carrier should not be required to deliver at any particular time or meet any
particular market, and limiting its liability for damage to cargo, are applicable
only to the original voyage, and the ship loses the benefit of them when it de-
liberately abandoned such voyageJ'^

§ 4475. Strikes or Stoppage of Labor.— Where a bill of lading exempted
a carrier from delay occasioned by strikes of stoppage of labor "from what-
ever cause," and on the arrival of the ship delivery was delayed by a general
longshoreman's strike, which prevented prompt delivery, which had been in
progress for a month before arrival, and continued after she was discharged,
with which strike the carrier had nothing to do, it was entitled to the benefit of
the exemption J s

§ 4476. Limitation of Amount of Damages. — The measure of damages
for delay in delivering a cargo of merchandise, for which the vessel is liable,
is the difi^erence between the price the goods actually brought when they ar-
rived, and the price they would have brought at the time they should have
been delivered ; and this measure of damages is not changed by a stipulation in
the bill of lading that the shipowner is not to be liable in any case for more
than the invoiced or declared value of the goods, the purpose of which is only
to fix the outside limit of liabilityJ^

Liability for Negligence. — It is competent for a steamship company as a
carrier of goods to limit its liability in case of loss, even as against its own
negligence, by a provision in the bills of lading that it is "not accountable for
any sum exceeding $100 per package for goods of whatever description, * * *
unless the value of such be herein expressed and freight as may be agreed
paid thereon," where such valuation is the basis on which freight is charged
artd was fully known to the shipper. ^<^ But a provision in a bill of lading lim-
iting a carrier's liability to the value of the goods at the place of shipment does
not relieve it from a greater liability for a loss occurring through the negligence
of the shipper in using an unseaworthy vessel. ^^

§ 4477. Benefit of Insurance Clause. — Where, in a suit for limitation of
liability arising out of a collision which resulted in the loss of the second vessel
and her cargo, such vessel, although adjudged equally in fault, claimed and
was awarded exemption from liability to her cargo owners under the provision
of the Harter Act, her owners have no right to be subrogated to the claims of
the cargo owners against the insurer of the cargo, under the "benefit of insur-
ance" clause of the bills of lading, because the court awards the entire fund
for distribution to the cargo owners in preference to the vessel owners on ac-
count of the vessel's contributing fault, on the theory that such action neces-
sarily imposed on the vessel the liability for the loss of cargo. In such case

75. The St. Ouentin, 103 Fed. 883, 89 79. Limitation of amount of damages.
C. C. A 573. —The Styria, 101 Fed. 738, 41 C. C. A.

Ta TV,»f4. * TV,^ nu^ o„ i-ro JT A Qro 639, modified in 33 S. Ct. 731, 18G U. S.

76. Ineit. — 1 he Uhazee, 173 red. 3G8, , ' ^ t^a -mnr,

J- ^. ^^ /\. bo. gQ Liability for negligence.— Hohl v.

77. Delay m dehvery.— Pacific Coast Norddcutscher Lloyd, n.". Fed. 544, re-
Co. V. Yukon Independent Transp. Co., versing decree, 1G9 Fed. 990.

155 Led. 39, 83 C. C. A. 635. gl. Judffment, 45 N. Y. S. 386, 17 App.

78. Strikes or stoppage of labor. — The Div. 408, reversed in Lovvenstein v. Lom-
Toronto, 174 Fed. 033, 98 C. C. A. 386. bard, etc., Co., 58 N. F. 44, 164 N. Y. 334.



§§ 447/-4479



CARRIERS.



4028



the payment of claims entitled to legal preference, as permitted by admiralty
rule 55, cannot be said to take anything from the holders of inferior claims,
who have no interest in the fund until preferred creditors have been satisfied. ^^

§ 4478. Exception of Restraints of Princes, Rulers, or People.— "Bills

of lading usually contain an exception of loss occasioned by restraint of princes,
rulers, or people." A declaration of war between the United States and Spain
after the ship cleared with a cargo of contraband, but before sailing, constitutes
a "restraint of princes" within that clause.^s ^^^^ the mistaken action of a
deputy collector in refusing a clearance to a vessel which should have been
granted does not constitute a "restraint of princes, rulers, or people" within
that clause of a bill of lading; and is not a sufficient excuse for the nonper-
formance of a contract for transportation of the cargo.^"*



§ 44

ulation
shipped
the bill
liability
time ^^
able or
ship is



79. Requirements as to Notice of Loss and Time to Sue.— A stip-
in a bill of lading that all claims for loss or damage to merchandise

shall be barred within a specified number of days after the date of
of lading if no claim is presented there f or, '^•"^ and a stipulation against

for loss or damage unless suit shall be brought within a specified
are valid, if reasonable. The time specified must be deemed reason-
otherwise according to the facts of the particular case.'^' Thus if a
driven out to sea and is not heard from for thirty days, obviously the



82. Benefit of insurance clause. — In re

Lakeland Transp. Co., 103 Fed. 338, mod-
ifying 111 Fed. 601, 49 C. C. A. 481.

83. Exception of restraints of princes,
rulers, or people. — The Austrian steam-
ship Styria loaded at an Italian port as
a part of her cargo a quantity of sul-
phur for delivery at New York. The
master issued bills of lading therefor,
and on April 24, 1898, cleared; but, be-
fore sailing, war was declared between
the United States and Spain. Held, that
such fact constituted a "restraint of
princes," within an exception in his bills
of lading, which justified the master in
refusing to proceed to a port of one of
the belligerent powers with a cargo of
sulphur, generally recognized and treated
as contraband of war, and that he had
the right to land such cargo, with all
proper precautions for safekeeping, at
the expense of the shippers, without wait-
ing for further action of the hostile pow-
ers, thus leaving his vessel free to pro-
ceed with the remainder of her cargo;
but, having learned, before he left the
port, through official proclamation made
by the Italian government, that the Span-
ish government had agreed not to treat
sulphur as contraband of war until fur-
ther notice, it became the duty of the
master to reload the cargo so discharged,
and the vessel was liable to the ship-
pers for the damages sustained by rea-
son of failure to do so. The Styria,
101 Fed. 728, 41 C. C. A. 639, modified
in 22 S. Ct. 731, 186 U. S. 1, 46 L. Ed.
1027.

84. Northern Pac. R. Co. v. American
Trading Co., 195 U. S. 439, 49 L. Ed. 269,
25 S. Ct. 84.

85. Notice of loss. — The Queen of the



Pacific. 180 U. S. 49, 45 L. Ed. 419, 21
S. Ct. 278.

A provision in a bill of lading requir-
ing all claims for damages to be pre-
sented within 30 days from the date
thereof makes the period of limitation
unreasonably short, and is therefore void.
Decree, The Queen, 78 Fed. 155, affirmed
in 94 Fed. 180, 36 C. C. A. 135, reversed
in 21 S. Ct. 278, 180 U. S. 49, 45 L. Ed.
419.

A stipulation for notice of any claim
of loss within 30 days from date of ship-
ment, in a bill of lading for goods car-
ried by ship from San Francisco to San
Pedro, is not unreasonable as applied to
a loss which was known to the consign-
ors more than 3 weeks before the ex-
piration of the stipulated time, since the
enforcement of the stipulation in such a
case would not work a manifest injus-
tice. Decree, Pacific Coast Steamship
Co. V. Bancroft-Whitney Co., 94 Fed. 180,
36 C. C. A. 135, reversed in 21 S. Ct. 278,
180 U. S. 49, 45 L. Ed. 419.

86. When suit to be brought. — A stip-
ulation in a bill of lading against liabil-
ity for loss or damage unless suit shall
he brought within three months is valid.
Ginn V. Ogdensburg Trans, Co., 85 Fed.
1)85, 29 C. C. A. 521.

87. Provisions of bills of lading requir-
ing claims for loss or damage to cargo
to be presented to the carrier within a
stated time, and barring any suit for such
loss or damage unless commenced within
a further stated time, will be enforced by
the courts only so far as they are reason-
able under the circumstances of the par-
ticular case. Pacific Coast Co. v. Yukon
Independent Transp. Co., 155 Fed. 29, 83
C. C. A. 625.



4029



LIMITATIONS OF LIABILITY.



§ 4479



provision would not apply since its enforcement might destroy the right of
recovery.''^

Notice before Removal of Goods. — A provision in a bill of lading that the
shipowner shall not be liable "for any damage to any goods, * * * notice"
of which is not given before the removal of the goods," means "before re-
moval" from the ship's custody and control. ^^ The phrase "notice of which
is not given before the removal of the goods," properly construed, does not
require such notice to be given before the goods are taken from the ship, but
before their removal from the dock where they are deposited by the ship, and
where, after they are released from the ship's tackle, they may be inspected and
examined, both by the consignees and the officers of the ship. So construed,
such provision is reasonable and valid. ^"^ A shipper under such a bill seeking
to recover for damage to cargo must show a compliance with its terms. ^^

Bars Both Proceedings in Rem and in Personam. — A stipulation, in a
bill of lading for goods carried by ship, that all claims for damages against the
steamship company or its stockholders must be presented within a specified
time, applies to a libel against the ship itself, as well as to claims in personam
against the owners and bars both proceedings. ^-

Excuses for Failure to Comply with Condition — Shipowner Having"
Knowledge of Damage. — Failure to comply with a provision of a bill of lading
that "the shipowner is not to be liable * * * for any claim, notice of which
is not given before the removal of the goods," is not excused by the fact that
the ship had knowledge of the damage, the purpose of the requirement being
to advise the owners that they are charged with liability therefor. ^^

Waiver. — Provisions of bills of lading requiring claims for loss or damage to
cargo to be presented to the carrier within a stated time, and barring any suit
for such loss or damage unless commenced within a further stated time, may
be waived by the carrier by his conduct,''^ as where the carrier entertains the
claim and continues negotiations for its settlement. ^-^ But the failure of the



88. The Queen of the Pacific, 180 U.
S. 49, 45 L. Ed. 419, 21 S. Ct. 278.

89. Notice before removal of goods. —
The Persiana, 185 Fed. 396, 107 C. C. A.
416, reversing decree, 156 Fed. 1019.

90. The St. Hubert, 107 Fed. 727, 46
C. C. A. 603.

A provision in a bill of lading that
"neither the steamship owners nor their
agents nor any of their servants are to
be liable * * * fQ^ any claim notice
of which is not given before the removal
of the goods" is to be construed as re-
quiring such notice to be given before
the removal of the goods from the dock,
and imposes a valid condition precedent
to the right to recover for damage to
cargo either against the owners person-
ally, or by a suit in rem, where, under
the circumstances of the case, such con-
dition is just and reasonable — as where
the damage was known when the cargo
was discharged. Decree, 116 Fed. 123,
affirmed in The Westminster, 127 Fed.
680, 62 C. C. A. 406.

91. The Persiana, 185 Fed. 396, 107
C. C. A. 416, reversing 156 Fed. 1019.

92. Bars both proceedings in rem and
in personam. — The Queen of the Pacific,
21 vS. Ct. 278, 180 U. S. 49, 45 L. Ed. 419,
reversing 94 Fed. 180, 36 C. C. A. 135.
which affirms 78 Fed. 155; The West-



minster, 127 Fed. 680, 62 C. C. A. 406,
affirming 116 Fed. 123.

93. Excuses for failure to comply with
condition — Shipowner having knowledge
of damage.— The St. Hubert, 107 Fed.
727, 46 C. C. A. 603.

94. Waiver. — Pacific Coast Co. v. Yu-
kon Independent Transp. Co., 155 Fed.
29, 83 C. C. A. 625.

95. Libelant shipped cargo on respond-
ent's vessel from Seattle to St. Michaels,
Alaska, under a clear verbal agreement
that it should be delivered on the first
trip of the vessel in the spring, or as
soon as the ice was out of the harbor.
When the vessel arrived the harbor was
still closed by ice, and the vessel, after
tendering delivery at Nome, returned to
Seattle with the cargo on board, and de-
livered it on the next voyage. The bills
of lading provided that all claims for
damages should be presented to the car-
rier within 10 days from notice thereof,
and that no action should l)e brought
after 60 days. When the vessel decided to
return from Nome with the property on
board, libelant's agent served notice that
a claim would be made for such damages
as might result, and, when the goods
were finally delivered at St. Micliaels,
served as specific a claim for damages as
could then be made, and a more specific



§§ 4479-4480



CARRIERS.



4030



owners to insist on the condition in other cases does not constitute a waiver in
favor of Hbelant, where it is not shown that he knew the fact and was misled
by it.96

§ 4480. Presumptions and Burden of Proof. — Where goods are received
in good order on board of a vessel under a bill of lading agreeing to deliver
them, at the termination of the voyage, in like good order and condition, and
the goods are damaged on the voyage, in a proceeding to recover for the breach
of the contract of affreightment, after the amount of damage has been estab-
lished, the burden lies upon the carrier to show that it was occasioned by one
of the perils for which he was not responsible under the exceptionSj^"^ but where



claim was later presented in Seattle,
which respondent took under considera-
tion, and negotiations for settlement were
continued for a year before suit was
brought. Held, that libelant had made
reasonable compliance with the terms of
the bills of lading as to notice, and that
the delay in bringing suit was waived by
the carrier by entertaining the claim and
continuing negotiations for its settle-
ment. Pacific Coast Co. v. Yukon Inde-
pendent Transp. Co., 155 Fed. 29, 83 C.
C. A. 625.

96. The Westminster, 127 Fed. 680, 62
C. C. A. 406, affirming decree, 116 Fed.
123.

97. Presumptions and burden of proof.
—The Folmina, 212 U. S. 354, 53 L. Ed.
546, 29 S. Ct. 363, 15 Am. & Eng. Ann.
Cas. 748, following Clark v. Barnweli
(U. S.), 12 How. 272, 13 L. Ed. 985.

Damage by sea water. — A carrier must
prove that damage to a cargo from wa-
ter was occasioned by the perils of the
sea within an exception in the bill of
lading against dangers and accidents of
the seas. The Folmina, 212 U. S. 354,
53 L. Ed. 546, 29 S. Ct. 363, 15 Am. &
Eng. Ann. Cas. 748,

"As illustrated in the case of The G.
R. Booth, 171 U. S. 450, 43 L. Ed. 234,
19 S. Ct. 9, proof merely of damage to
cargo by sea water does not necessarily
tend to establish that such damage was
caused by a peril or danger of the seas."
The Folmina, 212 U. S. 354. 53 L. Ed.
546. 29 S. Ct. 363, 15 Am. & Eng. Ann.
Cas. 748.

"The efficient cause of the damage
must be sought in those conditions or
events which caused or permitted the en-
trance of sea water. It can not in rea-
son be said that sea water was the effi-
cient, the proximate cause of the cargo
damage, because no other cause for that
damage has been disclosed. As there
must have been an efficient cause per-
mitting the sea water to enter, so long
as that cause remains undisclosed, it can
not be said that the damage has been
shown to have resulted from causes
within the scope of a sea peril; * * *
that it is the duty of the carrier to sus-
tain the burden of proof by showing a
connection between damage by the sea



water and the exception against set per-
ils. For the distinction between the two,
see The Henry B. Hyde, 32 C. C. A.
534, 90 Fed. 114; The Lennox, 90 Fed.
308; The Patria, 68 C. C. A. 397, 132 Fed.
971." The Folmina, 212 U. vS. 354, 53
L. Ed. 546, 29 S. Ct. 363, 15 Am. & Eng.
Ann. Cas. 748.

"The inability of the court below to
determine the cause of the entrance of
the sea water would imply that the evi-
dence did not disclose in any manner
how the sea water came into the ship.
In other words, while there was a cer-
tainty from the proof of a damage by the
sea water, there was a failure of the
proof to determine whether the presence
of the sea water in the ship was occa-
sioned by an accident of the sea, by neg-
ligence, or by any other cause. Mani-
festly, however, the presence of the sea
water must have resulted from some
cause, and it would be mere conjecture
to assume simply from the fact that dam-
age was done by sea water that there-
fore it was occasioned by a peril of the
sea. As the burden of showing that the
damage arose from one of the excepted
causes was upon the carrier, and the evi-
dence, although establishing the damage,
left its efficient cause wholly unascer-
tained, it follows that the doubt as to
the cause of the entrance of the sea wa-
ter must be resolved against the carrier.
The Edwin I. Morrison, 153 U. S. 199,
38 L. Ed. 688. 14 S. Ct. 823." The Fol-
mina, 212 U. S. 354, 53 L. Ed. 546, 29 S.
Ct. 363, 15 Am. & Eng. Ann. Cas. 748.

"And see further, the following cases,
applying the principle just stated, and
holding that because the damage to cargo
was shown to have been occasioned by
sea water, without any satisfactory proof
as to the cause of its presence, in view
of the burden resting upon the carrier,
conjecture would not be permitted to
take the place of proof: The Sloga, 10
Ben. 315. Fed. Cas. No. 12,955; The
Compta, 4 Sawy. 375, Fed. Cas. No. 3,069;
Bearse v. Ropes, 1 Spr. 331, Fed. Cas.
No. 1,192; The Zone, 2 Spr. 19, Fed. Cas.
No. 18,220; The Svend, 1 Fed. 54; The
Centennial, 7 Fed. 601; The Lydian Mon-
arch, 23 Fed. 298; The Queen, 78 Fed. 155,
affirmed in 36 C. C. A. 135, 94 Fed. 180;



4031 LIMITATIONS OF LIABILITY. §§ 4480-4483

loss or damage has been occasioned by one of the excepted causes, the burden
of proof is shifted upon the shipper, to show neghgence.^^

Seaworthiness of Vessel. — Although perils of the sea were excepted by the
charter party, the burden of the proof is on the carrier to show that the vessel
was in good condition and suitable for the voyage at its inception. ^^

Loss from Shipping Order or Condition of Goods. — Where goods are
delivered in a damaged condition plainly caused by breakage, rust, or decay,
their condition brings them within an exception exempting from that character
of loss, as the very fact of the nature of the injury shows the damage to be
prima facie within the exception, and hence the burden is upon the shipper to
establish that the goods are removed from its operation because of the negli-
gence of the carrier.^

§§ 4481-4493. Provisions in Passenger Tickets — § 4481. Liability
for Personal Injuries to Passenger. — Validity. — A provision of a steamship
ticket exempting the carrier from responsibility for its own or its agents' neg-
ligence, or failure of duty towards its passengers, provided it has used due



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