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 [168 U.S. 104, 105] 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 [168 U.S. 104, 106] 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 [168 U.S. 104, 107] 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: [168 U.S. 104, 108] '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.
It was stipulated by counsel 'that the English judicial [168 U.S. 104, 109] 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:
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. [168 U.S. 104, 111] 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.
[168 U.S. 104, 117] W. W. MacFarland, for appellants.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.
The contract sued on was made in October, 1891, more than a year before the passage of the Harter act, and the case is unaffected by its provisions. Act Feb. 13, 1893, c. 105 (27 Stat. 445).
By the law of this country, before that act, as declared upon much consideration by this court, common carriers by land or sea could not, by any form of contract with the owner of property carried, exempt themselves from responsibility for loss or damage arising from negligence of their own servants; and any stipulation for such exemption was contrary to public policy, and void. Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397 , 9 Sup. Ct. 469.
By the modern decisions in England, on the other hand, made since it has become to us a foreign country, common carriers, except so far as controlled by the provisions of the railway and canal traffic act of 1854, were permitted to exempt themselves by express contract from responsibility for losses occasioned by negligence of their servants. Peek v. Railway, 10 H. L. Cas. 473, 493, 494, [168 U.S. 104, 118] Steel v. Steamship Co., 3 App. Cas. 72; Railway v. Brown, 8 App. Cas. 703; In re Missouri Steamship Co., 42 Ch. Div. 321; The Cressington [168 U.S. 104, 1891] Prob. Div. 152.
In the case at bar, the decision of the district judge proceeded upon the ground that, any stipulation directly exempting the carrier from all liability for negligence of his servants being void by our law, as against public policy, the equivalent stipulation that the contract should be governed by the law of England was equally void, and could not be enforced in the courts of the United States. That decision is in accordance with the previous decision of the same judge in The Brantford City, 29 Fed. 373, and with several subsequent decisions of his. The Energia, 56 Fed. 124; The Guildhall, 58 Fed. 796; Worsted Mills v. Knott, 76 Fed. 582. The like view has been taken by Judge Nelson, in the district of Massachusetts, in The Iowa, 50 Fed. 561; by Judge Benedict, in the Eastern district of New York, in Lewisohn v . Steamship Co., 56 Fed. 602; and by Judge Butler, in the Eastern district of Pennsylvania, in The Glenmavis, 69 Fed. 472. See, also, Oscanyan v. Arms Co., 103 U.S. 261 ; Hamlyn v. Distillery [168 U.S. 104, 1894] App. Cas. 202, 209, 214; Rousillon v. Rousillon, 14 Ch. Div. 351, 369.
But it is unnecessary to express a decisive opinion upon the validity of the contract, because, assuming it to be valid, and to govern the case, this court concurs with the circuit court of appeals in the opinion that the respondent was liable for the loss in question.
Exceptions in a bill of lading or charter party, inserted by the shipowner for his own benefit, are unquestionably to be construed most strongly against him. The Caledonia, 157 U.S. 124, 137 , 15 S. Sup. Ct. 537; The majestic, 166 U.S. 375, 386 , 17 S. Sup. Ct. 597; Norman v. Binnington, 25 Q. B. Div. 475, 477; Baerselman v. Bailey [168 U.S. 104, 1895] 2 Q. B. 301, 305.
By the laws of both countries, the ordinary contract of a common carrier by sea involves an obligation on his part to use due care and skill in navigating the vessel and in carrying the goods; and an exception, in the bill of lading, of perils [168 U.S. 104, 119] of the sea, or other specified perils, does not excuse him from that obligation, nor exempt him from liability for loss or damage from one of those perils, to which the negligence of himself or his servants has contributed.
This rule of construction was fully established in this court before it had occasion to decide the question whether it was within the power of the carrier by express stipulation to exempt himself from all responsibility for the negligence of himself or his servants.
In the leading case of New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, a crate of William F. Harnden, in which was money belonging to the bank, was shipped upon a steamboat of the navigation company under an agreement stipulating that 'the said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event, be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company.' This court held that the navigation company was not thereby exonerated from loss by fire arising from the negligence of that company or its servants, and the reasons for the decision were stated by Mr. Justice Nelson as follows: 'The special agreement in this case, under which the goods were shipped, provided that they should be conveyed at the risk of Harnden, and that the respondents were not to be accountable to him or to his employers, in any event, for loss or damage. The language is general and broad, and might very well comprehend every description of risks incident to the shipment. But we think it would be going further than the intent of the parties, upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for willful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands.' 'If it is competent at all for the carrier to [168 U.S. 104, 120] stipulate for the gross negligence of himself and his servants or agents in the transportation of the goods, it should be required to be done at least in terms that would leave no doubt as to the meaning of the parties.' 6 How. 383, 384. See, also, The Hornet, 17 How. 100; Transportation Co. v. Downer, 11 Wall. 129; The Syracuse, 12 Wall. 167; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438 , 9 S. Sup. Ct. 469.
In England, likewise, it has long been recognized as a settled rule that under a contract to carry goods, containing an exception such as of 'breakage or leakage,' or of 'barratry of the master or mariners,' or of 'perils of the sea,' there still rests upon the carrier, not merely the duty to carry the goods if not prevented by the excepted perils, but also the obligation that he and his servants shall use due care and skill, and shall not be negligent in carrying the goods. Phillips v. Clark, 2 C. B. ( N. S.) 156; The Helene, L. R. 1 P. C. 231; Lloyd v. Coliery Co., 3 Hurl. & C. 284; Grill v. Colliery Co., L. R. 1 C. P. 600, L. R. 3 C. P. 476; Czech v. Navigation Co., L. R. 3 C. P. 14; Steel v. Steamship Co., 3 App. Cas. 72, 87, 88; Railway v. Brown, 8 App. Cas. 703, 709, 710; The Xantho, 12 App. Cas. 503, 510, 515.
The English case most resembling in its circumstances the case at bar is Leuw v. Dudgeon, briefly reported in L. R. 3 C. P. 17, note, and more fully in 17 Law T. (N. S.) 145, by which it appears to have been as follows: Cattle were shipped, some of them on deck, under a bill of lading containing these clauses: 'Ship free in case of mortanty and from all damage arising from the act of God, the queen's enemies, fire, accidents from machinery or boilers, steam, or other dangers of the seas, rivers, roadsteads, or steam navigation whatsoever.' 'The ship not liable for accident, injury, mortality, or jettison, whether shipped on deck or in the hold.' On the vessel putting out to sea, she experienced fine weather, and the sea was smooth, but there was a ground swell, and after she had been out some time she suddenly rolled over on her beam ends; the cattle pens gave way, and the cattle fell over to the starboard side, and, in order to save the vessel, it was [168 U.S. 104, 121] necessary to throw those on deck overboard. It was held that, if the accident was owing to the vessel putting to sea with insufficient ballast, the owners were liable, notwithstanding the exemptions in the bill of lading, which included 'jettison' as well as 'accidents from dangers of the seas.'
In that case, indeed (as in the case in this court of The Caledonia, above cited), the fault of the shipowner consisted in sending the ship to sea in an unseaworthy condition. But Mr, Justice Willes, who delivered the leading opinion, laid down the general rule that 'the exceptions were intended to save the shipowner from liability for the effects of accident, and not to absolve him from the duty of exercising reasonable diligence.' 17 Law T. (N. S.) 146. And he treated the case as coming within the principle of that rule as affirmed in the cases, above cited, of Phillips v. Clark and Grill v. Colliery Co., in the one of which the clause, 'not to be accountable for leakage or breakage,' and in the other the clause, 'accidents or dangers of the seas, rivers, or navigation, of whatever nature or kind soever, excepted,' was held not to cover a loss, otherwise within the exception, caused by the negligence of the master or crew. So, in Steel v. Steamship Co., above cited, Lord Blackburn said, in the house of lords, that in construing such exceptions in a bill of lading exactly the same considerations would arise as to the duty of the shipowner to furnish a ship really fit for the purpose as had been applied, in the series of cases of which Phillips v. Clark was the leading one, to the duty of himself and his servants to use due care and skill in carrying the goods.
In Notara v. Henderson, L. R. 7 Q. B. 225 Y, 236, the court of exchequer chamber, in a considered judgment delivered by Mr. Justice Willes, held that the words 'loss or damage arising from collision or other accidents of navigation occasioned by default of the master or crew, or any other accidents of the seas, rivers, and steam navigation, of whatever nature or kind, excepted,' did not exempt the owner from negligence in omitting to take out and dry the cargo at a port of distress, because the authorities (specially mentioning Grill [168 U.S. 104, 122] v. Colliery Co., above cited), 'and the reasoning upon which they are founded, are conclusive to show that the exemption is from liability for loss which could not have been avoided by reasonable care, skill, and diligence; and that it is inapplicable to the case of a loss arising from the want of such care, and the sacrifice of the cargo by reason thereof.'
In Gill v. Railway, L. R. 8 Q. B. 186, the court of queen's bench, applying the same rule of construction, held applying the same a contract for the carriage of cattle by railway, by which the railway company was not to be responsible for any loss or injury to the cattle 'in the receiving, forwarding, or delivering, if such damage be occasioned by the kicking, plunging, or restiveness of the animal,' did not relieve the company from liability for negligence of its servants in delivering a restive cow.
In Lloyd v. Colliery Co., 3 Hurl. & C. 292, above cited, Lord Bramwell said that the words, 'accident or damage from machinery, boilers, steam,' could not apply to an explosion caused by the willful act of the engineer.
The passages quoted by the respondent from Burton v. English, 12 Q. B. Div. 218, 220, 223, as showing that the words 'on deck at owner's risk' exempt the carrier from liability for unlawful jettison, or for negligence of the master and crew, were obiter dicta; the only point decided being that those words did not exclude the right of the owner of the goods to recover in general average for a lawful jettison. See Ralli v. Troop, 157 U.S. 386, 396 , 15 S. Sup. Ct. 647. The two other cases cited by the respondent were cases in which railway companies were held not to be responsible for the negligence of their servants under contracts essentially different from that now in question. One was an action by a possenger traveling as a drover accompanying cattle, under a free pass, one of the terms of which was that he should travel at his own risk. McCauley v. Railway, L . R. 8 Q. B. 57. The other was an action by a person who, knowing that the defendant had two rates of carriage,-a higher rate when it took the ordinary liability of a carrier, and a lower rate when it was [168 U.S. 104, 123] relieved from all liability except that arising from the willful misconduct of its servants,-delivered goods to be carried at the lower rate, under a contract in which the only words defining the carrier's liability were 'owner's risk.' the carrier's liability were 'owner's risk.' Lewis v. Railway. 3 Q.B. Div.195.
Upon consideration of the conflicting testimony, with the aid of the careful arguments of counsel, no ground is shown for reversing or modifying the conclusions of fact reached by both courts below. Their concurrent decisions upon a question of fact are to be followed, unless clearly shown to be erroneous. Morewood v. Enequist, 23 How. 491; The Richmond, 103 U.S. 540 , and cases cited; The Conqueror, 166 U.S. 110 136, 17 Sup. Ct. 510.
By the facts so found, it appears that the cattle, for the loss of which a recovery has been permitted, were sound and uninjured animals, forcibly thrown or driven overboard, in rough weather, by order of the master, from unfounded apprehension on his part, in the absence of any pressing peril to the ship, and with no apparent or reasonable necessity for a jettison of the sound cattle, and no attempt to separate them from those which had already been injured by perils of the sea.
The clauses of the bill of lading (other than the reference to British law) on which the respondent relies are those in the first paragraph, 'on deck at owner's risk; steamer not to be held accountable for accident to or mortality of the animals, from whatever cause arising'; and those in the third paragraph, by which '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 barratry of the master or crew'; or '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.'
The bill of lading itself shows that all the cattle to be carried under this contract were to be on deck. The words 'on deck at owner's risk' cannot have been intended by the [168 U.S. 104, 124] parties to cover risks from all causes whatsoever, including negligent or willful acts of the master and crew. To give so broad an interpretation to words of exception inserted by the carrier, and for his benefit, would be contrary to settled rules of construction, and would render nugatory many of the subsequent stipulations of the bill of lading.
The wrongful jettison of the sound cattle by the act of the carrier's servants cannot reasonably, or consistently with the line of English authorities already cited, or with our own decisions, be considered either as an 'accident to or mortality of the animals,' or as a 'loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters,' or yet as a loss or damage 'by collisions, stranding, or other accidents of navigation.' There having been no collision, stranding, or other accident of navigation, there was nothing to which the only stipulation in the bill of lading against the consequences of negligence, default, or error in judgment of the master and crew could apply.
There was no barratry, because there was neither intentional fraud nor breach of trust, nor willful violation of law; one of which, at least, is necessary to constitute barratry. Insurance Co. v. Coulter, 3 Pet. 222; Lawton v. Insurance Co., 2 Cush. 500; Grill v. Colliery Co., above cited.
The facts of the case therefore do not bring it within any of the exceptions of the bill of lading, assuming them to be valid.
[ Footnote 1 ] 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.
[ Footnote 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.