.. J
'I'RE CALEtlONIA.
ol1slM1t1 kllles when incurred.' The cattle are1lo be delivered lind received from' steam--ship's decks immediately on arrival at the port of destination. Tllll Ship.:' per agrees, to ship all the cattle the steam-ship, can' carry,'as above mflntioned,' paying fr,eighton same at the rate of shillings 'British sterling .per' bUllock for allcattlfl shipped., Tbe shipper'sgrees to prepay freight on the aboYI'-mentioned shipments- in current funds, at first-class bankers. selling00 the number of cattle shipped at Boston, vessel lost ratt:' for sight or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality 01' accident,however caused, throughout the voyage.' The shipper ag-rees to deliver the cattle on the date and hOllf; ordered by the of the steamer. or pay demurrage of the stea!Dship for'allor any detention incurred by his failure to do so. In case of nonarrival of vessel In time to sail from Boston on or beforell:lth June, shipper has option of cancellation. Any dispute arising on this contract to be settled by arbitrathm in the usual way io Boston. HENDERsON BROTHERS." OF LADING.
"Shipped alive, by M.Goldsmith,and at risk, in and upon the steam-ship called the · Caledonia,: now lying in the port of Boston, and bounel for London, t,wo hundred. and seventy-four bead live ,cattll', to be delivered from the sbip's deck at tbeafol'esa.id port of London; the act of God, the QUeeri'$:-enemies, pirates, restraint' of princes and rltlers, perils of the seas, and·land tl'ansit, of 'whatever nature or kind, restrictions at 10sII 01' damage from delays, collision, straining, explosion" ,beat, fire, steam-hoilers and ,machinl'ry, or defects therein, transescape" accidents" mortality, disease, ordeteriora. tion invatue,. nt'gligence, default, or error in judgment of pill/ts, master, mariners, engineers, stevedores, or any otlll'r person in the employ of the steam-ship cYrl of' the owners Or their altents, excepted ;wHh liuerty to sail' with or, without pilots, to tow and assist vessels in all situations, to call at any port or ports to l"eceive fuei, load. or discharge cargo, or for any other pur. pose, the event oqhe putting back to Boston 01' into 80y othl'r ()r. bei og prevented from, any cause 'rum proceeding in the ordinary course' of Mrvoyagf', to transship by any other unto order,or to bis or tbeit'assigns. 'Freight for the said stock to be paid withollt any allow<lnce of' -credit or discount, at the rate of £2·5-0 sterling for each animal shil'p..d :oil"deck, and £2-5-0 sterling for ellch animal shipped under deck, or not, ,vessl'lJostornot lost, cattle jettisoned in all orin part; . or av.erag!: acl:\lstomed. In the eVl.'ot of the loss of the· vessel,. of her at the said port, or of the cqnsi;£nee neglecting to pay thllfreight upori the arrival ufthe vessel, or neglpctiilgto pay the charges and t"xpetlses hilrein mentibn't:'d; shipper. in consideration of the waiVing of the payl11t!nt of the freight in advance, hereby binds and obligates himself to pay the,fl1eight aboveell;prl'8sed, ftod sllch <:harges and expenses, rlplln mlllJd. stipulated andagrlled 11)" tlleship!ler, as a condition of the sbil,mentdih"tbe will take chw-geofthe stllckdudllg'the vo)"age, tile vessel· furnillhingro\:ll.ter only; that, be. has, examined the condition of the steamer, ' the the stalls. ana the means of ventllat.ion. and approved of the. ,s"l11e, tbat no claim ishllil be made for any loss or damage resulting therefrom; that any mortality, sickness, or deterioration in the conllnion of the stock shall be prl'sullJl'd to arise from the condition of t11e animals when shipped, or from natural CallSElSi : OiJnsig'nees to entt:'r thl' property at thecustwe n after the ship, is rel?ol ted tlwre, and ;to lmmethately, /Ipon bt:'lllg landed, the agentllof the ship the expense ll.nd risk olthe ,shipper, or consignee of cargo.. POl'teragellf the delivi>ry,of the cargo to Le d()lle by agenus,oftl'48'1wip.attbe and frisk oUhe Lighterage;toD-'
de-
FEDltRAL REi>QRTER,
vol. 43.
payable by the receivers. This bUlo! lading, duly in-' be given lip wthe ship agents in exchange for delivery order. In, the master. purser, or agents of' the said ship, hath afbills of lading, all of this tenor and date, one of which bills beingllol1!lomplished. the others to stand,void. In accepting this bill of'lading, shipper. as owner, or agent of the owner. of the property shipped. exprel'lsly accepts and agrees to all its stipulations. exceptions, and conditions, whether written or printed. "J)ated. in Boston, ·· 15thJun(J, 1885. "J., M1LLER STEWART, for the Agents. " , On M6hday; June 15, 1885, the l.ibelant shipped on poardthe Oaledoniaat }3oston, to be delivered at Deptford, 274 head 6f cattle in good order atiti:pondition, and put On board fodder sufficient for a voyage of 15 days, a day or two mOre than the usual length of voyage, being all the fodder that by the usage of the business he was bound to provide. On the morning of June 24tH; the riinth day out from Boston, in smooth weather; 1lhe'propeller shaft:M tlleOaledonii brdkestraigh'tacrossin the stem tube.. There had beeuJlQ weather 011 this;v'oyage, and the against or otller object. The ,breakmg, q( t,l16spattw/ts,lts J?een by meetipg heavy, ,seair:on previous voyages. At the time oflelj,ving Boston on June 15th. the shaft was in fact unfitforthe voyage, and, byrooson of its unfitness ihe''vessel was unseaworthy. No defect in'thesha(t','was visible, been,: detepted by the usual and reasonable if the t.aken out ,/J.nd eJf:,amined. No .on part of ()wners of the p wa,s proved. By r,eason Ofl \hebreaking ,of thE:lshaft· the voyage lasted 25 days,and the cattle WBrelput on' shortallowahce' of .food, and; in consequence. thereof, were landednt Deptford in the: of Monda)', '.Tuly 20th, in an emaciated'<;:oMition.' The marketllays in LondoIi were Mondays and Thutsdays;' . :BY the usual courseonhe busi1;less ofs,hipplng live cattle from ,Boston tcjDeptford for the tondpll market, andoin accordance with the know.l.ElQge and, contllmplation .of both parties at the time of theexecutionof' the memorandum of agrMUi'ent and the bill ()f lading, the cattle were not to be sold 'before' arrival', al'idwere soldatthe ,tit:st market after their arrival...':The. ,amount of tha. damages the libelant WllS. lUi'shiteq ,in . the counsel of t1;le partij3s:. ;'i" ", " ' :: , ' is herebyagretwthat the whole amount of damages 'suffered by the libellant (excluatva,of. interest) arose frQnl'two sources' of los's: . shrinkage in the "feight ofcat,tle,ffom the protracted voyage. and ran in th'eiriarketvalue of <Juri the delay in arrival ;.and.thatthelle'two causes togethermllde the lOllS) ,seven .. thpusand eight bundred 'and fifty dollars;antl that one balf thereof, wwit.: .three thousand· nine 'bundred and twenty-five'dollal's,was and is to beat.m:ibuted tOMch · i CON,CLt;JIJIQNlil Oll',L4W.
, 'rhere· wasia tliattIie time ofsitjl. iog from BosfoIi. ',This not by the bill of lading. . The breach .of ,the warranty '\Vas th.fica,useof all the, ,The Ijbfllantis fntitled to rec0ver:$1.,:8AQand
THE CALEDONIA.
685
GRAY, Justice. A contract for the carriage of goods by Rea may doubtless exist without a bill of lading; and, when the parties have made such a contra.ct, the ship-owner cannot, without the shipper's consent, vary its terms by inserting new provisions in a bill of lading, and the shipper may decline to assent to the modifications, and insist upon his right to have the goods carried under theoriginal contract. Jones v. Hough, 5 Exch. Div. 115; Crooks v. Allan, 5 Q.,B. Div. 38, 40, 41; Lord BRAMWELL, in Sewell v. Burdick, L. R. 10 App. Cas. 74, 105. But the, bill of lading is often given by the ship-owner and accepted by the shipper as expressing the terms of the agreement between them, and when this isthe case both parties are bound by its provisions. Glyn v. Dock Co., L. R.7 App. Cas.59!, 596; Chartered M. BankojlndJia v.,NetherlandJJ, etc., Co., 10 Q. B. Div. 521, 528; The Delaware, 14 Wall. 579. In the case at bar the original contract, although containing no mention of a bill of lading, was evidently a preliminary memorandum only, and not a final and definite statement of all the terms of the agreement between the parties.. For instance, it did not even except perils of the sea, yet it is incredible that either party contemplated orintended thatthe carrier should bl;lliable for such perils. And the shipper not only, witbout objection I accepted and forwarded to the consignees their bill of lading, but in the usual course of businessbetw,een the, parties, both before and after this shipment, he accepted similar bills of la-ding under likedrcumstanceS. It is a necessary conclusion of fact, as well as of law, that the bill of lading ,was understood and intended to be, ,and was, evidence of the real contract by which the mutual obligations of the parties were to be erned. The shipper is therefore' bound' by the exceptions in the bill of lading, as far as those exceptions are valid in law. So far as they un. dertake, to exempt the carriers from respollsibili.ty for the negligenceo£ their servants, they are inoperative and ,void. LiverpOOl & G. W.8team Co. Ins. Co., .129 U. S.397. 9 Sup. Ct. Rep. 469. But in this case, as no negligence is proved, that partoOhe exceptionis immaterial. , In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the ship-owner that the ship is seaworthy at the time of beginning her voyage, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make ,her The warranty is absolute that the ship is, or shall be, in fact seaworthy at that time, and does not depend on his, knowledge or ignorance,hiscare ofoogligence. Work v. Leathers, 97 U.S. 379i:-OOhn v. Davidson, 2Q. R Div. 455; frwin, 10 Prob. Div.103. In the case at bar, the unseaworthiness of the v'essel'donsjsted in the unfitness of her Ilhaft when sbe left port, andJhat unseaworthiness was the cause of the damage 'to the libelant's cattle. of "steam,-boilers and .machinery, ,or defects "in_ serted iu an instrument framed by the ship-owners, .and in the midst of along enumeration of various causes of damage,all thereat of.Wllich relate to matters happening after the beginning of thevoyage, 111ust, by elementary rules of construction, .and according to the ,great weight ()fau-
686'
REPORTER,
·vol. 43.
thoritY;r:.be: held to be in its scope,'and not to,affect the war.ranty(oLll_worthiq,ess, at tJhe time of leaving {Jortupori her'V'oyage. Ifapito.ffii 87.1; Steelv. ,Steam-Shi:pCo.,L. R. 3.App.J ,Oasd72jra'he Glenfruitil'10 Prob.- DiV'. Tattersall v.Steam-Ship Co.\12:Q.i:B,-,I,)iv. 297; The,Rovet'; 33F)ed. Rep. 515. The opinion in TheMiranda,L.R. 3,Adm.' & Ecc. 661, so far as to.a different eonclusion,till rOtlDtrary'to';ihe eases;tmd in'The Lames, 12 Prob. Div. 187', ,the bills ,of lading expressly restricted the warranty of seaworthinesS to, eases in' which there had been a want of ordinary and ren80na ble Care." ", It, has been held by ithe- 'highestcotirts or Michigan, Massachusetts, and- New,Yorlt l upon'reasobswhichappear to tlsconclusive, and which it is unneCes811ry. torestare, that acomnll)Dcal'rier, i'eneiv.ing goods for carriage, and by whose faulit :theyare not deliveredat the :tilne and place atwhich;tbey,ought tohnve been ,delivered, butare.deHveredat the same.pIAC8 afterwards, and when their market valueris less,isrespol1sible to:tlie,'owller"o{ difference in value.: SWaDnv. Rail,. rOad (l);, '14 Mich. 489; Outting v,Railwa'!J Co.; 13 Allen, 381; Ward v. Railroa(j. a", 47 N. y" 29.:' The same general rule has been often recognizedaEl'lipplying'to carriers 'by sea in thiseircuit as well as in the second circuit; Oa/ce$v, Richardson, 2 Low. 173, 178; Page v.Munro, Holmes', 232; RotD6V\' '1'heOity ojDubl-in,1, Ben.46jThe SUCCes8\ 7 Blatchf. 551 i The Gitilio, 84: .. ,Rep.. 909. But this! case does' not require us to go so {aI', becliuseit ;at the timeiofcontractingtogether, knew and'contemplated that the cattle were not to'ba sold l1elore arriVllI, *nd) were to!be.soldatth&t1rst possible market'day'after ar,rival;iand, 'under suoh circumstanced, there can be nO'donbtwhattiver that the Itlotbe shipp!!r for the·' fall 'in (;'0,: 'tT. U.'S.444, 456,8 Sup. et. Rep. 577i·7'he·.Parn.nd, ·2'Prob.Div. 118; 121,123.· ,Decree affirmed, with interestand·cosls. ", . f ! :'
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