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December 1, 1854


THIS was an appeal from a decree of the district court of the United States for the northern district of California, sitting in admiralty. Minturn libelled The Hornet, for the non-delivery of two steam-boilers and chimneys, shipped on board of that vessel in the port of New York, and consigned to the libellant.

Alexander M. Lawrence and seven others intervened, as claimants, and after a hearing upon the pleadings and profits, the district judge decreed that the libellant should recover $25,275, and costs. From this decree the claimants appealed to this court.

The case is stated in the opinion of the court.

It was argued by Mr. Cutting, for the appellants, and by Mr. Lord, for the appellees.

Mr. Cutting, before stating the points of law which arose in the case, examined the evidence, from which he contended that the following positions were established:––

1. That the ship Hornet was as good a ship as sailed out of the port of New York, at the time she commenced this voyage, and as well qualified as any vessel of her size to carry the boilers in the manner in which they were shipped.

2. That the contract of affreightment was, that the boilers should be carried on deck, in the manner in which they were carried.

3. That the boilers were stowed, and secured in that position, in the best and safest manner; and that the residue of the cargo was well stowed with regard to carrying the boilers on deck. She was in good sailing trim, and steered very well.

4. 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.

5. That it would not have been possible to carry the boilers to San Francisco, or to have retained them longer on the ship, consistently with the safety of the lives of those on board.

The experience acquired in the first storm clearly established this.

6. That the boilers were thrown overboard as soon as it was practicable, after the ship encountered the gale.

7. That this jettison was with due deliberation, and an act of necessity.

8. That the ship-owners were not guilty of any negligence, even the slightest, either in undertaking to transport these goods on deck, or in the construction, equipment, or navigation of the ship, or in the stowage of these goods, or in the manner of stowage of the rest of the cargo in reference to these goods, or in the quantity of cargo taken in below deck.

Points of Law.

I. The libellant had no right, merely as consignee, to institute this action in his own name.

II. The boilers were lost by one of the excepted perils, even if the ship be held to its responsibility as a common carrier.

1. The carrier is not responsible for the loss by jettison of goods laden on deck with the assent of the shipper, when such jettison is necessary to save the vessel and the crew. Gould v. Oliver, 4 Bing. N. C. 142, per Tindal, C. J.; Case cited by Coke, in Bird v. Astcock, 2 Bulst. 280; Approved Sto. on Bail. § 531; Mouse's Case, 12 Coke, 63; Gillett v. Ellis, 11 Ill. R. 579; Johnston v. Crane, 1 Kerr. 356 (New Brunswick Rep.); Smith v. Wright, 1 Caines's R. 43, and note (a,) 45; Crosby v. Fitch, 12 Conn. 419, 420; Da Costa v. Edmunds, 4 Camp. 142.

2. The loss occurred by dangers of the seas, within the meaning of the bill of lading. The gale of the 26th and 27th of August, was a severe gale, accompanied by a very heavy cross sea, which strained the ship, opened her seams, and caused her to leak badly; under these circumstances the weight of the boilers caused the decks to settle, and jeoparded the safety of the vessel. Although she was capable of withstanding ordinary weather, it was manifest that she could not outlive another gale.

3. The loss could not have been guarded against, or foreseen by any ordinary exertion of human prudence or skill. 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. Hagedorn v. Whitmore, 1 Stark. 157; Barton v. Wolliford, Comb. 56; Gillett v. Ellis, 11 Ill. 579; Smith v. Scott, 4 Taunt. 126.

III. The shipper having contracted for the shipment of the boilers on deck, cannot, in the absence of fault or negligence in the carrier, recover for a loss by perils incident to that mode of transportation. Gould v. Oliver, Tindal, C. J., 4 Bing. N. C. 142; Baxter v. Leland, Blatch. R. 526; Clark v. Barndwell, 12 How. 272, 281-2; Shackleford v. Norton, 9 Louisa. R. 33, 39; Angell Car. §§ 215, 217.

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; N.J. S. Nav. Co. v. Merchants' Bank, 6 How. 344, 382; Citizens' Bank v. Nantucket Steamboat Co. 2 Sto. R. 16, 34, 36; Allen v. Sewall, 6 Wend. 335, 355, 364; Wells v. The Steam Navigation Co. 2 Comstock R. 208; Edwards v. Sherratt, 1 East. R. 604, 611; Thomas v. Prov. and Bos. R. R. Co. 10 Metc. 472; Angell on Car. §§ 45, 46, 54, 89; Sto. on Bail. § 442.

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. and Payne, 251; Houseman v. Schooner North Carolina, 15 Pet. 50.

This objection was taken at the trial, but the court ruled, that if the loss was occasioned by the overloading of the ship, proof might be given of that fact, and the libel sustained. Even if this ruling was correct, no proof of the vessel being overloaded was given; nor was she overloaded. The lading of the boilers on deck made the ship uneasy; but it was the shipper, and not the master and mariners, who caused them to be placed there, and the latter cannot be charged with carelessness, unskilfulness, or misconduct, on that account.

VII. The damages decreed to the libellant are excessive.

Mr. Lord, for the appellee, stated the libel, and then said,

The ship, in answer, sets up two matters in defence:––

1. That the shipper, in making the freighting contract, deceived the agents of the ship, by representing the weight at about forty tons, when, in fact, it is alleged to have exceeded fifty tons, in the shipper's knowledge, on which representation the agents relied.

2. That the ship having sailed from New York, on the 23d August, 1851, experienced a storm at sea, near the edge of the Gulf Stream, on the 26th of August, in which the ship labored severely; the gale continued twenty-four hours; the ship was very uneasy under her deck load, and on the 29th August, considering the ship in danger, and she leaking badly, the master determined, after the gale was over, to throw over the deck load, to avoid the dangers which might arise in the next gale which might occur. 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.


First Point. As to the pretended misrepresentation, no stress appears to have been laid on it in the court below. In fact, the freight contract was made on the 19th July, 1851, while the machinery in question was in the course of construction, and its weight unknown to the libellant. It was made by Cunningham, Belknap, and Co., and finished between the 1st and 19th August.

Second Point. The next question involved is, whether the jettison was owing to the perils excepted in the carrier's engagement, namely: dangers of the sea, fire, and collision. The two latter are to be laid out of view, as having no bearing on the case; and the only question is, whether the jettison was caused by dangers of the sea.

1. The contract of the carrier in its nature requires the utmost care and diligence on his part, and also a ship fit and capable of performing the engagement, unless defeated in so doing by vis major. Although perils of the sea be the immediate cause, still, they are not within the exception, unless they have been encountered after all the obligation of the carrier has been performed. Thus, if badly stowed, and thereby exposed to sea perils in a storm, or if the ...

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