Compania De Navigacion La Flecha v. Brauer, 168 U.S. 104 (1897)

Compania de Navigacion la Flecha v. Brauer

No. 39

Argued March 29-30, 1897
Decided October 28, 1897
168 U.S. 104

CERTIORARI TO THE CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT

Syllabus

A contract, made at New York to carry cattle on deck of a steamboat from New York to Liverpool, contained these provisions:

On deck at owner’s risk, steamer not to be held accountable for accident to, or mortality of, the animals, from whatever cause arising. . . . 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; . . . 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.

Held that, by the terms of this contract, whether governed by the law of this country or by the law of England, the carrier was not exempted from responsibility for the loss of sound cattle, 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.

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 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 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 panic-stricken, 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, one 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{2}), and of the 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:

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.

And the respondent avers that the loss of said cattle was due to the perils of the sea encountered upon the said voyage, which broke certain of the cattle houses, and set the cattle adrift, and that, during the continuance of the perils, and by reason thereof, certain of the cattle were washed overboard, and others were thrown about the deck, bruised and with broken limbs, and reduced to a dead, dying, or hopeless condition, and that, upon such being taken to the gangways, they were washed over by the seas.

It was stipulated by counsel

that the English judicial 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:

During three days from October 30th to November 1, inclusive, the vessel met heavy weather, during which there was heavy rolling of the vessel. The cattle were in pens on deck -- a few forward under and near the turtle-back, which were saved; the rest were in the vicinity of Nos. 3 and 1 hatches, forward and aft of the engine room, in pens built in the wings on the port and starboard sides of the ship, all of which were lost. The storm was heaviest on the afternoon and night of Saturday, the 31st, the wind and seas coming first and heaviest from the northwest, but on Saturday hauling to the northward, and to east-northeast, with cross seas. Some slight damage was done to a few pens on the 30th; more were broken on Saturday, the 31st; but these were repaired and the cattle put in place toward nightfall. About 5 o’clock on that day, the after gangways were opened on each side, and about ten or twelve cattle that had become maimed and helpless were sent overboard through those gangways. The chief loss was during that night and the following morning, when, shortly after daylight, the captain gave orders to open the forward gangways also, and the whole deck was cleared of all the cattle save the thirty-nine under the turtle-back. . . .

Upon the whole testimony in this pitiful case, I am not disposed to pronounce any unfavorable judgment upon the handling of the ship by the master. His record as a master appears to have been good, and on any doubtful question of navigation he is entitled to the benefit of his record. He had some, though not large, experience in the transportation of cattle, and the experts called by each party place so much stress upon the special circumstances of the situation, the quality of the ship, and the necessary determination of the master’s own judgment at the time, that in the circumstances testified to I do not find any conclusive proof adverse to the master’s judgment as to the navigation of the ship.

The evidence leaves not the least doubt in my mind, however, that the sacrifice of a considerable number of live cattle that were not maimed or substantially hurt was made on the morning of Sunday, the 1st of November, not from any pressing necessity, but solely from mere apprehension, and I am further persuaded that there was no reasonable or apparent necessity for the sacrifice. It was morning. The night was past. No one testifies to any pressing peril to the ship. The log does not hint of it. No reason appears why such cattle as could go about, and were actually going about, should not have been cared for and preserved. There was plainly no effort made to separate the sound from the maimed. Even the master says, in answer to the question: "Were these cattle standing up that went overboard? Ans. They were down. Some may have been up. I don’t know." His object plainly was to clear the deck of all the cattle from No. 3 aft, with no attempt to discriminate or save any. His state of mind is shown by his concluding words, "We all breathed happily when we saw it open" (No. 3 hatch).

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 F. 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 F. 860.

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.

The respondent applied for and obtained a writ of certiorari from court.