Under the settled doctrine of this Court that the concurrent
decisions of two courts upon a question of fact will be followed
unless shown to be clearly erroneous, this Court accepts as
indisputable the finding that the Carib Prince was unseaworthy at
the time of the commencement of the voyage in question in this case
by reason of the defect in the tank referred to in its opinion.
The condition of unseaworthiness so found to exist was not
within the exceptions contained in the bill of lading, and, under
the other facts disclosed by the record, the shipowner was liable
for the damages caused by the unseaworthy condition of his ship,
and there is nothing in the Act of February 19, 1893, c. 105, 27
Stat. 445, commonly known as the Harter Act, which relieved him
from that liability.
The provision in that act exempting owners or charterers from
loss resulting from "faults or errors in navigation or in the
management of the vessel," and from certain other designated
causes, in no way implies that because the owner is thus exempted
when he has been duly diligent, the law has thereby also relieved
him from the duty of furnishing a seaworthy vessel.
The
Carib Prince, an iron and steel steamer, was built
in England in the spring of 1893 for the carriage of passengers
Page 170 U. S. 656
and freight. She was fitted with a peak tank, triangular in
shape, extending from the bottom of the ship to the between deck,
the tank being intended to hold water to be used as ballast in
trimming the ship. The sides of the tank were the sides of the
ship. The after end of it was the collision bulkheads. It was
twenty-four feet deep, and had a capacity of eighty-three tons of
water. The angle irons, beams, strengthening bars, etc., which
enabled the collision bulkheads to sustain the strain of the water
against it were on the inside of the tank, the face of the bulkhead
showing in the No. 1 hold being smooth, except that the plates were
lap-jointed. The strengthening bars were fastened to the bulkhead
by a series of horizontal rivets, the heads of the rivets, inside
No. 1 hold, being situated three or more feet above the floor of
the hold.
On September 14, 1892, the
Carib Prince was chartered
to the Trinidad Direct Line Steamship Company for the period of
four years. On August 31, 1893, while the vessel was in the
possession of the charterers and lying in the port of Trinidad,
loading for a voyage to New York, a number of cases of bitters were
delivered on board consigned to J. W. Wuppermann. They were placed
in the No. 1 hold. The bill of lading delivered to the consignor
contained the following exceptions:
"The act of God, the Queen's enemies, pirates, robbers,
restraints of princes, rulers, and people, loss or damage from heat
or fire on board, in hulk or craft or on shore, explosion, steam,
accidents to or latent defects in hull, tackle, boilers, and
machinery, or their appurtenances, jettison, barratry, any act,
neglect, or default whatsoever of pilots, masters, or crew in the
management or navigation of the ship, quarantine, collision,
stranding, and all and every other dangers and accidents of the
seas, rivers, or steam navigation, of whatever nature or kind,
always excepted."
The ship left Trinidad on August 31, 1893, stopped for a short
time at Grenada, just north of the Island of Trinidad, and from the
latter port proceeded direct to New York. After leaving Grenada,
and on the night of the 3d of September, by direction of the
captain, the peak ballast tank referred to, and which adjoined the
compartment in which the cases of bitters
Page 170 U. S. 657
were stored, was filled with sea water. This was done for the
purpose of trimming the ship, which was several feet lower at the
stern than she was forward. The next morning, or the second morning
after, it was discovered that the water from the peak tank was
escaping through a rivet hole into the No. 1 hold, the head of one
of the rivets having been forced off. To recover the damage
occasioned to the goods in question by the water which had thus
gotten into the No. 1 hold, Mrs. Wuppermann filed her libel in the
United States District Court for the Eastern District of New York.
Ernest Legge, master on behalf of the owner, appeared and filed an
answer, in which, after denying the material allegations of the
complaint, the exceptions contained in the bill of lading were
pleaded as a defense, and it was averred that said exceptions were
valid in the port where the bills of lading were issued. It was
also averred
"that the owner and charterer used all due diligence to have her
(the vessel) properly equipped, manned, provisioned, and outfitted,
and in every way seaworthy and capable of performing her intended
voyage, and used all due diligence in and about the transportation
of the merchandise in question, and alleged that, if the cargo
mentioned in the libel was damaged as alleged, the damage was due
to latent defects in certain rivets, angle irons, braces, and
straps in the bulkhead between the No. 1 hold and the peak tank
just forward of it, or to some error or fault in the management or
navigation of the vessel in filling the said peak tank on the
voyage, as will more fully appear on the trial of this cause."
The case was tried in June, 1894, and a final decree was entered
in October following, dismissing the libel. 53 F. 266. From that
decree an appeal was taken to the Circuit Court of Appeals for the
Second Circuit, which affirmed the decree of the district court. 68
F. 254. A writ of certiorari being allowed, the cause has been
brought into this Court for review.
Page 170 U. S. 658
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the court.
It was averred in the answer that the damage to the property of
the libelant
"was due to latent defects in certain rivets, angle irons,
braces, and straps in the bulkhead between the No. 1 hold and the
peak tank just forward of it, or to some error or fault in the
management or navigation of the vessel in filling the said peak
tank on the voyage."
The district court and the circuit court of appeals held that
the sole cause of the accident was a latent defect in a rivet from
which the head had come off, leaving the hole through which the
water poured in and upon the merchandise of the libelant. This
defective condition of the rivet was found to have been caused by
the fact that the quality of iron had been injured during the
construction of the vessel by too much hammering, so that it became
brittle and weak, rendering it unfit to sustain the reasonable
pressure caused by filling the tank with water while at sea, and
consequently causing the vessel to be unseaworthy at the time the
bills of lading were issued and the goods were received on board.
The settled doctrine of this Court is that the concurrent decisions
of two courts upon a question of fact will be followed unless shown
to be clearly erroneous.
Compania La Flecha v. Brauer,
168 U. S. 104, and
cases there cited;
Stuart v. Hayden, 169
U. S. 114;
Baker v. Cummings, 169
U. S. 198. As, after a careful examination of the
evidence, we conclude that it does not clearly appear that the
lower courts erred in their conclusion of fact, we accept as
indisputable the finding that the
Carib Prince was
unseaworthy at the time of the commencement of the voyage in
question by reason of the defect in the tank above referred to.
Upon this premise of fact, the first question which arises for
solution is this: did the exceptions in the bill of lading
exempting the shipowner "from loss or damage from . . . accidents
to or latent defects in hull, tackle, boilers, and machinery or
their appurtenances" operate to relieve him from damages caused by
the state of unseaworthiness existing at
Page 170 U. S. 659
the inception of the voyage, and at the time the bill of lading
was signed? This question is no longer open, as it is fully
answered in the negative by the decision in
The Caledonia,
157 U. S. 124. In
that case, the damage sought to be recovered had been caused by the
breaking of the shaft of the steamer by reason of a latent defect
which existed at the commencement of the voyage. The exemption from
liability which was there asserted to exist was predicated on a
provision in the bill of lading relieving the owner from "loss or
damage . . . from delays, steam boilers and machinery, or defects
therein." It was held that the clause in question operated
prospectively only, and did not relate to a condition of
unseaworthiness existing at the commencement of the voyage, and
that it must be construed as contemplating only a state of
unseaworthiness arising during the voyage. The principle upon which
the ruling rested was that clauses exempting the owner from the
general obligation of furnishing a seaworthy vessel must be
confined within strict limits, and were not to be extended by
latitudinarian construction or forced implication so as to
comprehend a state of unseaworthiness, whether patent or latent,
existing at the commencement of the voyage. The rule thus announced
in
The Caledonia but expressed the doctrine stated by Lord
Selbourne in
Steel v. State Line Steamship Co., 3 App.Cas.
72, that the exceptions in a bill of lading ought, if in reason it
be possible to do so, to receive
"a construction not nullifying and destroying the implied
obligation of the shipowner owner to provide a ship proper for the
performance of the duty which he has undertaken."
The fact that the exempting clause in the present case refers to
latent defects, while that passed on in
The Caledonia
embraced defects generally, does not take this case out of the
control of the general rule laid down in
The Caledonia.
The decision in
The Caledonia was based not on the
particular character of the defects there referred to, but on the
general ground that unless there were express words to the
contrary, the language of the exempting clause would not be held to
apply to defects, whether patent or latent, existing when the
voyage was commenced -- in other words, that, where the owner
desires the
Page 170 U. S. 660
exemption to cover a condition of unseaworthiness existing at
the commencement of the voyage, he must unequivocally so contract.
An illustration of such contract was found in
The Laertes,
12 Prob.Div. 187, referred to in the opinion in
The
Caledonia. In that case, the bill of lading stipulated not
merely against latent defects, but against all such defects
existing at the time of the shipment.
The condition of unseaworthiness found to exist not being then
within the exceptions contained in the bill of lading, it remains
only to consider whether, under the facts disclosed by the record,
aside from the exceptions in the bill of lading, the shipowner was
liable for the damages caused by the unseaworthy condition of the
ship. The contention is that, as the owner exercised due diligence
to make the ship seaworthy, he was consequently not liable because,
under the present state of the law, a shipowner is no longer under
the obligation to furnish a seaworthy ship, but only to exercise
due diligence to do so. The radical change in the duties and
obligations of shipowners which this proposition involves is
asserted to arise from the statute of February 13, 1893, c. 105, 27
Stat. 445, commonly described as the "Harter Act." The proposition
rests on the assumed meaning of the second and third sections of
that act. The second section is as follows:
"SEC. 2. That it shall not be lawful for any vessel transporting
merchandise or property from or between the ports of the United
States of America and foreign ports, her owner, master, agent or
manager, to insert in any bill of lading or shipping document any
covenant or agreement whereby the obligations of the owner of
owners of said vessel to exercise due diligence [to] properly
equip, man, provision, and outfit said vessel, and to make said
vessel seaworthy and capable of performing her intended voyage, or
whereby the obligations of the master, officers, agents, or
servants to carefully handle and stow her cargo and to care for and
properly deliver same, shall in anywise be lessened, weakened or
avoided."
Now it is patent that the foregoing provisions deal not with the
general duty of the owner to furnish a seaworthy ship, but solely
with his power to exempt himself from so doing by
Page 170 U. S. 661
contract, when the particular conditions exacted by the statute
obtain. Because the owner may, when he has used due diligence to
furnish a seaworthy ship, contract against the obligation of
seaworthiness, it does not at all follow that when he has made no
contract to so exempt himself, he nevertheless is relieved from
furnishing a seaworthy ship and is subjected only to the duty of
using due diligence. To make it unlawful to insert in a contract a
provision exempting from seaworthiness where due diligence has not
been used cannot by any sound rule of construction be treated as
implying that where due diligence has been used, and there is no
contract exempting the owner, his obligation to furnish a seaworthy
vessel has ceased to exist. The fallacy of the construction relied
on consists in assuming that because the statute has forbidden the
shipowner from contracting against the duty to furnish a seaworthy
ship unless he has been diligent, thereby the statute has declared
that, without contract, no obligation to furnish a seaworthy ship
obtains in the event due diligence has been used. And the same
fallacy is involved in the contention that this construction is
supported by the third section of the act. The third section is as
follows:
"SEC. 3. That if the owner of any vessel transporting
merchandise or property to or from any port in the United States of
America shall exercise due diligence to make the said vessel in all
respects seaworthy and properly manned, equipped, and supplied,
neither the vessel, her owner or owners, agent or charterer, shall
become or be held responsible for damage or loss resulting from
faults or errors in navigation or in the management of said vessel,
nor shall the vessel, her owner or owners, charterers, agent or
master, be held liable for losses arising from dangers of the sea
or other navigable waters, acts of God, or public enemies, or the
inherent defect, quality or vice of the thing carried, or from
insufficiency of package, or seizure under legal process, or for
loss resulting from any act or omission of the shipper or owner of
the goods, his agent or representative, or from saving or
attempting to save life or property at sea, or from any deviation
in rendering such service."
The exemption of the owners or charterers from loss
resulting
Page 170 U. S. 662
from "faults or errors in navigation or in the management of the
vessel" and for certain other designated causes in no way implies
that because the owner is thus exempted when he has been duly
diligent, thereby the law has also relieved him from the duty of
furnishing a seaworthy vessel. The immunity from risks of a
described character when due diligence has been used cannot be so
extended as to cause the statute to say that the owner when he has
been duly diligent is not only exempted in accordance with the
tenor of the statute from the limited and designated risks which
are named therein, but is also relieved, as respects every claim of
every other description, from the duty of furnishing a seaworthy
ship. These considerations dispose of all the questions arising on
the record.
The decrees rendered both in the circuit court of appeals
and in the district court must therefore be reversed, and the case
be remanded to the district court for further proceedings in
conformity with this opinion. And it is so ordered.
MR. JUSTICE BROWN, with whom was MR. JUSTICE BREWER,
dissenting.
For the reasons stated by me in
The Caledonia,
157 U. S. 124,
157 U. S. 140,
I am compelled to dissent from the opinion of the Court in this
case. The accident in that case occurred by the breaking of a
propeller shaft owing to its having been weakened by meeting with
extraordinarily heavy seas on previous voyages. No defect in the
ship was visible, or could have been detected by the usual and
reasonable means if the shaft had been taken out and examined.
The minority of the Court, conceding the general principle that
in every contract for the carriage of goods by sea, unless
otherwise expressly stipulated, there is a warranty on the part of
the shipowner that the ship is seaworthy at the time of the
beginning of the voyage, was of opinion that the
Caledonia
was exempt from the losses claimed by the exception in the bill of
lading "of loss or damage from . . . machinery or defects therein."
It was argued that
Page 170 U. S. 663
this exception was obviously inserted for the purpose of
exempting the ship from some liability to which, without such
exception, it would be subject. It evidently was not intended to be
limited to mere breakages of machinery which should occur after the
voyage began, since the breaking of sound machinery through the
stress of weather is treated as an inevitable accident or peril of
the sea for which the ship would not be liable, whether there were
an exception or not, and the following cases were cited as
sustaining this proposition:
The Virgo, 3 Asp.Mar.Law 285;
The William Lindsay, L.R. 5 P.C. 338;
The
Miranda, L.R. 3 Ad. & Ec. 561;
The Cargo ex
Laertes, 12 P.D. 187;
The Curlew, 51 F. 246.
In the case under consideration, the exception is more specific,
and exempts the ship "from loss or damage from . . . accidents or
latent defects in hull, tackle, boilers, and machinery, or their
appurtenances." It was admitted that the sole cause of the accident
was a latent defect in a rivet from which the head had come off;
that this defective condition of the rivet was caused by the fact
that the quality of the iron had been injured during the
construction of the vessel by too much hammering, so that it had
become brittle and weak, thus rendering it unfit to sustain the
reasonable pressure caused by filling the tank with water while at
sea.
It was further found by the courts below that abundant diligence
had been used in the construction of the vessel; that the defect in
the rivet was a latent one, which occurred at the time she was
built; that it was not discovered and was not discoverable at that
time or subsequently, by the exercise of all the known and
customary tests and methods of examination, which were all
employed.
The question then arises as to what was meant by the exception
of "latent defects." It evidently was not intended to refer to
defects which became such after the beginning of the voyage through
stress of weather or other perils of the sea, since the ship would
not be liable for such defects or breakages, whether excepted or
not in a bill of lading. A ship is never liable for an accident or
breakage of machinery occasioned by perils of the sea, and the word
"defects" is
Page 170 U. S. 664
never used in that connection. The words "latent defect," as
ordinarily understood, apply to something existing at the time the
ship or other vehicle was constructed, and such as was not
discovered and could not be discovered by ordinary methods of
examination. To exempt a vessel from the consequences of such a
defect is neither unreasonable nor unjust, and most of the modern
bills of lading contain a stipulation to that effect.
The case of
The Cargo ex Laertes, 12 P.D. 187, is in
point. Bills of lading under which the cargo was shipped contained,
among other excepted perils, the clauses "warranted seaworthy only
so far as ordinary care can provide," and
"owners not to be liable for loss, detention, or damage . . . if
arising directly or indirectly . . . from latent defects in
boilers, machinery, . . . even existing at time of shipment."
The
Laertes broke down from a latent defect which could
not have been discovered by the exercise of all reasonable care,
and it was held that the exception of latent defects, if it did not
abrogate at all events limited, the warranty which the law would
otherwise imply that the ship was seaworthy at the beginning of the
voyage. I do not regard the words "even existing at time of
shipment" as adding anything to the words "latent defects," since,
in our view of those words as ordinarily understood, they must have
existed at the time of shipment.
The hardship of the ruling in the case under consideration
appears the more manifest from the fact that the
Carib
Prince was a British steamer, and that the bill of lading was
signed at Trinidad, a port governed by the English law.
I agree with the majority of the Court that the Harter Act cuts
no figure in this case. While it is possible that the framers of
this act may have intended to exonerate ships from the consequences
of unseaworthiness where due diligence had been used to make them
seaworthy, it must be conceded that the language of the third
section does not express such intent, since it only exonerates them
from loss or damage resulting from faults or errors in navigation
or management. But I think that recent cases in this Court have
Page 170 U. S. 665
imposed a most severe and impracticable measure of liability --
one which operates with great hardship upon the prudent and careful
owner and one which is calculated to invite further legislation in
the direction of the Harter Act.
