Benjamin Robbins Curtis

“ That in the judgment of all the experienced navigators who have testified on this subject, without a dissenting voice, the ship was, at the time of leaving the port of New York, capable of carrying the boilers, as a deck load, to San Francisco. That the shipper and his agents assented to, and acquiesced in, that judgment. And no evidence has been furnished that any person entertained, much less expressed, a doubt of the success of the voyage. ”

“ But it must be observed that this libellant relies not on general unseaworthiness, but upon the fact that a vessel, staunch and sufficient to carry a cargo, was overloaded by this burden on the deck; and as the quantity of lading and the consequent trim and seaworthiness of a vessel are matters as to which the master is, generally speaking, bound to exercise his skill, and over which he is intrusted for the benefit of all concerned with a supervision, his failure to do so properly, is negligence, for which the owner may be liable. ”

“ The carrier does not contract that a deck load shall not embarrass the navigation of the vessel in a storm, or that it shall not cause her so to roll and labor in a heavy sea, as to strain and endanger the vessel. ”

“ For, if we take the rule to be that an action against the carrier cannot be brought by a consignee who has no beneficial interest in the goods, it still remains true, that a presumption of such an interest in the consignee arises from a bill of lading which makes the goods deliverable to him or his assigns. ”

“ If the vessel is in itself stanch and seaworthy, and her inability to resist a storm arises solely from the position of a part of the cargo on the deck, the owner of the cargo, who has consented to this mode of shipment, cannot recover from the ship or its owners, on the ground of negligence, or breach of an implied contract respecting seaworthiness. ”

“ Under this bill of lading the question is, not what in other circumstances could be deemed a peril of the sea, but what is to be deemed such when operating on this vessel, with this deck load. If a very burdensome cargo, like iron, is taken on board, and heavy weather met with, and a jettison made, it would not be a ground of claim against the owner, that the weather encountered would not have been sufficient to justify a jettison if the cargo had been cotton. ”

“ Her inability to carry these boilers and chimneys arose solely from their particular position on deck.
The libellant, through the shipper in New York, consented to their being placed in this position. He took the risk of their rendering the ship unmanageable in a storm; and he, and not the ship-owners, must bear the loss occasioned by their being placed on the deck, so far as the liability for the loss rests upon any ground of negligence in the place of stowage, or breach of warranty respecting the seaworthiness of the vessel. ”

“ The shipper and the ship-owners, in this respect, concurred in the judgment that the ship was capable of carrying this extraordinary deck load, and all proper precaution were adopted, in order to insure its safety.
4. The circumstance that human agency intervened to cast the boilers into the sea, makes it none the less a loss by perils of the seas. ”

“ And the burden lies on him to excuse himself, by showing that the damage arose without his fault and by the excepted peril. The shipper commits his goods to the carrier's care, he is not present during the voyage, he cannot detect secret faults or neglects, and is in no equality with the carrier, as to proving the cause of the loss. The law throws the burden of making out the whole excuse on the carrier.
Third Point. Has the carrier, in this case, shown the jettison within the exception, as thus expounded? ”

“ It was by one of that class of perils that the boilers were lost.
IV. The ship-owners were not common carriers as to these goods; they were special bailees under a particular contract, and in respect to this transaction, are to be treated as private carriers, who incur no responsibility beyond that of an ordinary bailee for hire. They are answerable only for misconduct or negligence, or the want of that diligence which prudent men commonly take of their own goods. Special Contract, 5, 66 ”

“ And that, on the 6th of September, the preparations were begun for throwing over the steam machinery, which was accomplished by the 12th September. She afterwards experienced the Equinoctial gale, commencing September 17th, and continuing until the 26th, in which the ship, if she had not been relieved of her deck load, would, it is averred, have foundered at sea, or leaked so as to damage all the cargo. ”

“ Dispatch line California packets.
Contents unknown.
Goods to be delivered at the vessel's tackles when ready to be delivered. Not accountable for breakage, leakage, or rust; freight payable before delivery, if required; and are to be delivered, in like order and condition, at the port of San Francisco, (the dangers of the seas, fire, and collision only excepted,) unto Charles Minturn, or to his assigns, he or they paying freight for the said boilers, steam-chimneys, and other iron work, forty-five hundred dollars, with five per cent. primage, and average accustomed. ”

“ The steamchimneys were between five and six feet in diameter, and besides these there was a piece of steam-pipe weighing 667 pounds. The ship sailed on the 23d of August, and on entering the gulf stream encountered rather heavy weather and a cross-sea. The performance of the vessel in this sea was found to be bad. On the 26th a gale came on from the south, veering to the northwest, and lasted until the night of the 27th. ”

“ V. The ship-owners did not warrant or insure that the ship should be competent to carry the boilers on her deck to San Francisco.
VI. The libel does not aver unseaworthiness, incapacity, or fault of the ship, or any improper stowage of cargo, or any overloading of the ship; and on the contrary it alleges the failure to deliver, to have been caused solely by the mere carelessness, unskilfulness, and misconduct of the master and mariners. The proofs and the right to recover must be confined to the allegations. 1 Car. ”

“ The bill of lading was as follows:--
210. Shipped, in good order and well-conditioned, by Edward Minturn, on board the ship called The Hornet, whereof Lawrence is master, now lying in the port of New York, and bound for San Francisco, California, to say: two boilers, and two steam-chimneys for ditto, eight pieces sheet-iron work, three pieces pipe, one band, two hundred and four grate-bars, sixteen grate-bar bearers, eight boiler bearers, six man-hole plates, eight boiler doors, one bundle (four) bolts, two boxes ”

“ Consolato, par Pardessus, c. 186; Ord. de Mer, Valin, lib. 2, tit. 1, art. 12; Code du Com. Mar. par Locre, art. 229, lib. 2, tit. 4, art. 229; Emerigon, ch. 12, sec. 42; Boulay Paty, tom. 4, 566, 568. ”