Collier v. Valentine ex rel. St. Louis Insurance

11 Mo. 299

Opinion

Scott, J.,

delivered the opinion of the Court.

The principal question discussed in this case, is, whether if a steamboat not seaworthy, on which there is a contract of affreightment, departs on a voyage and is afterwards sunk, in an action against the owners for not providing proper means for safely carrying the cargo, the defendant can show as a defence that the loss was occasioned by a peril excepted in the contract, and was in no manner influenced by the defect of unseaworthiness, and that it would have happened, even had the boat been seaworthy ? Had there been a policy on the cargo, it would not have admitted of a question, that there could have been no recovery upon it, as the boat not being seaworthy, the policy would never have attached, and of course no action could have been sustained against the underwriter. Hence, it was contended, that as the policy and the bill of lading were designed to indemnify the shipper against all perils, and as the bill of lading covers the perils not provided against by the policy, as there could have been no recovery against the underwriter on a polióy, the carrier must be liable. If the action had been against the carrier for a loss of the policy by reason of its not attaching in consequence of the unseaworthiness of his boat, this argument might have been more appropriate, but the complaint is, that proper means were not employed (o carry the. cargo, and the question is, whether the owner of the boat can show that the loss was not occasioned by the defectiveness of the means of conveyance.

There is no doubt of the general principle, that the owner is bound to see that the boat be seaworthy, which means, that she must be tight, staunch and strong, well furnished, manned, victualed and in all respects equipped in the usual manner for the trade in which she is engaged.— She must be adapted to the cargo and to the service in which she is employed. There is no such thing as absolute seaworthiness in the law. The term, “seaworthy,” is a relative one and is always construed in reference to a voyage in which a vessel is to he engaged. The same vessel may be seaworthy for one voyage and entirely unseaworthy for another. That if any loss happens to a shipper in consequence of the neglect of the owner to furnish a suitable vessel, he is responsible for such loss, although the defect may be a latent one and unknown to him. He impliedly warrants that his vessel is suitable to the service in which he undertakes to employ her. That the ship owner like the common carrier is an insurer against everything but the excepted perils, which by the common law were the act of God, and the public enemy, though now by bills of lading the unavoidable perils of the sea or river, are excepted, a phrase which it has been held narrows the responsibility of common carriers more than it was by.the common law. 21 Wend., 199.

Lord Holt, who was the first to define with precision the law? regulating the liabilities of bailees, said, “that the rule with regard to common carriers was a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust those sorts of persons, that they may be safe in their ways of dealing, for else these carriers might have an opportunity of undoing all persons who had any dealings with them by combining with thieves and yet doing it in so clandestine a manner, as would not be possible to be discovered.” Coggs vs. Bernard, 2 L. Ray., 912. This law then is founded not on principles of justice, but is supported by policy and convenience. Cases of such hardship frequently arise under it, as endanger the uniformity of its application. Under such circumstances, there seems to be no propriety in extending its operations beyond the reasons which caused its existence. A carrier ought to be liable for a loss occasioned by his default. But to hold him responsible for a loss by an excepted peril not at all attributable to the default, would seem to be great injustice.'— If the master of a boat should be guilty of negligence and afterwards she should be stricken with lightning and consumed, would it not be extremely hard to hold the owner ressonsible for the loss when it was so apparent that the disaster had no connexion with the event? With regard to policies, it has been held, that a temporary non compliance with the implied warranty of seaworthiness, when the policy has once attached, does not discharge the underwriters from a liability for all subsequent losses, where it distinctly appears that no damage or subsequent change of risk was occasioned by such non compliance. 1 Phillips on Ins., 332-3*4.

The question under discussion has rarely arisen and not much learning is to be found in the books in relation to it. So far as intimations of opinion have been given by Judges and elementary writers, their inclination hag been in favor of admitting evidence, showing that the loss was independent of the default of the carrier.

Chancellor Kent says, if the master-'deviates unnecessarily from the usual course, and the cargo be injured by tempests during the deviation, the deviation is a sufficiently proximate cause of the loss to entitle the freighter to recover; though if it could be shown that the same loss not only might but must have happened, if there had not been any deviation, the conclusion might be otherwise. 3 Kent, 210. This doctrine of the Judges is founded on what fell from the Chief Justice in the case of Davis vs. Garnett, 6 Bing., 716. In that case, the plaintiff put on board defendants barge, lime, to be conveyed from the Midway to London. The master of the barge deviated unnecessarily from the usual course, and during the deviation a tempest wetted the lime, and the barge taking fire thereby, the whole was lost. It was held that the defendant was liable and the cause of loss sufficiently proximate to entitle the, plaintiff to recover. Tindal, C. J , in delivering the opinion of the court, in answer to the objection that there was no necessary connexion between the loss and the deviation, and that it might have happened had there been no deviation, said, “we think the real answer to this objection is, that no wrong doer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done. It might have admitted of a different construction, if he could show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done.” Judge Story, after noticing the distinction adopted in the Roman law which holds the bailee, who is en mora, liable for all losses by accident after his default, unless they are such as must have occurred to the thing bailed independently of the default, adds, that there are certainly intimations in various common law authorities which lead to a similar conclusion. Thus for example, he continues, “it has been said, that if goods are improperly stowed on the deck of a ship and they are washed away by the violence of a storm, the owner of a ship will be liable for the loss, although caused by the perils of the sea, unless the dangers were such as would equally have occasioned the loss, if the goods had been safely stowed under deck. So, if the ship be not seaworthy, but the loss is caused by some peril of the sea or other casualty wholly disconnected with the want of seaworthiness, the carrier will not be liable for the loss.” Story on Bailments, sec. 413, d. In the case of Hastings vs. Pepper, 11 Pick., 41, it was held that if a common carrier receives goods to be carried in a particular manner and position, he is bound to carry them in that way and if by a disregard of the directions, the goods are lost or damaged, the burden will be on him to prove that the loss was in no degree attributable to his breach of contract, but was occasioned solely by the act of God or a public enemy, or the act or fault of the owner himself. The case of Hartt vs. Allen & Grant, 2 Watt’s Rep., 114, decides the question now under consideration. In that case, the jury was' instructed in substance, that if they believed the boat was not fit for the voyage, or the master not competent or the crew insufficient, they ought to find a verdict for the plaintiff, whatever might be their opinion as to the real cause of the loss. C. J. Gibson, who delivered the opinion of the court, which was a well considered one, observed, “that if the Judge had said no more than that the carrier is bound to provide a carriage or vessel in all respects adequate to the purpose, with a conductor or crew of competent skill or ability, and that failing in these particulars, though the loss be occasioned by the act of God, he shall not set up a providential calamity to protect himself against what may have arisen from his own folly,” there would have been no room for an exception. But, says he, “the cause was eventually put to the jury on a different principle. That the want of seaworthiness has the peculiar effect of casting every loss from whatever cause on the carrier, as a penalty I presume, for his original delinquency and no! for its actual or supposed instrumentality in contributing to the disaster, which is admitted to have been produced in this instance, by causes not connected with the unseaworthiness and to have been of a nature which no human force or sagacity could control. Does such a penalty necessarily result from the nature of the contract ? A carrier is answerable for the consequences of his negligence, not the abstract existence of it. Where the goods have arrived safe,no action lies against him for an intervening but unconsequential act of carelessness; nor can it be set up as a defence against the payment of freight; and for this plain reason, that the risk from it was all his own. Why then should it in any other case, subject him to aloss which it did not contribute to produce, or give an advantage to one, who was not prejudiced by it ? It would require much to reconcile to any principle of policy or justice, a measure of responsibility which would cast the burden of the loss on a carrier whose wagon had been snatched away by awhirldwind in crossing a bridge, merely because it had not been fur-' nished with a proper cover or tilt, to protect the goods from the weather.”

From these authorities we think we are warranted in holding that a carrier sued for a breach of a contract of affreightment, is permitted to show by way of defence, that although he may have been in default, yet that the loss was independent of that default, and must have happened although it had not ever existed. But a delinquency which might have contributed to the disaster occasioning the loss, or negligence or carelessness at the time of its occurence, which might have had an agency in producing it, will render him liable.

The same considerations which are applicable to the cause of action in the first count of the declaration, will apply to the second count. No points however, were raised on the instructions relative to the carelessness of the defendants, but as the second instruction cut off a defence to which the defendants were entitled according to what has been said, and as we see it may have influenced the finding of the jury, and indeed as the verdict may have been based upon it, the judgment must be reversed.

The eighth instruction relative to the running on a known snag or bar cannot be sustained. Abbot in his work on Shipping, 258, says, “if a ship perish in consequence of striking against a rock or shallow, the cricumstances under which the event takes place must be ascertained in order to de'cide whether it happened by a peril of the sea or by the fault of the master. If the situation of the rock or shallow is generally known, and the ship not forced upon it by adverse winds or tempest, the loss is to be imputed to the fault of the master. On the other hand, if the ship is forced upon such rock or shallow by adverse winds or tempest, or if the shallow was occasioned by a sudden and recent collection of sand in a place where ships could before sail in safety, the loss is to be attributed to the act of God or the perils of the sea.” This is the doctrine in relation to Ocean navigation, where ships are furnished with maps and charts on which shoals and rocks are designated, and where there is ample room to avoid them. But it is obvious, that this doctrine cannot apply to the navigation of our inland rivers, where a vessel cannot avoid a bar or snag, and there is no other way but to pass over it. Where careessness or rashness is imputed under such circumstances, every case must bs determined by the facts of it. That a carrier may make himself liable for rashness or negligence occasioning a loss in passing such places^ there is no question, and so it is equally clear that they may be passed under such circumstances as will...exonerate him from all responsibility. The course usually pursued by skillful pilots in passing a bar or snag or dangerous place in the river, must be the test by which the propriety of the conduct of a carrier is to be ascertained. The frequent changes in the current of rivers, the rising and falling of their waters in such rapid succession, require the exertion of constant vigilance on his part and render it difficult to lay down any definite rule for the government of his conduct on the occasions referred to.

The other Judges concurring,

the judgment will be reversed and the cause remanded.