BUTLER, District Judge.
The respondent having contracted to carry sugar from Hamburgh to Philadelphia, received the cargo in good condition, and delivered a part of it seriously damaged. She must therefore compensate for tills loss, unless she can excuse herself from liability. She points to the following clause of the contract:
“The ship and carrier shall not be liable for the loss or damage occasioned by the perils of the seas or other waters, * * * for any latent defect in hull, machinery, or appurtenances, for accidents of navigation, of whatsoever kind, even when occasioned by the negligence, default, or error In judgment of the master, mariners, or other servants of the shipowner, * * « nor for any loss or damage occasioned by causes beyond bis control, steamer having liberty to coal in U. K. * * * Any questions arising under this bill of lading to be settled according to the laws of the flag of the vessel carrying the goods.”
Bhe follows this with an assertion that the damage resulted from "perils of the sea or other waters,” or “accident of navigation,” and that it is therefore covered by the’exemption clause cited; and furthermore that if it did not so result, but is ascribable to negligence of the master or crew, this negligence is also covered by the clause.
Thus it becomes necessary to determine how the damage occurred. Fortunately, there is little room, if any, for controversy respecting this. On reaching Philadelphia the ship undertook to fill her aft water-ballast tanks, to improve her situation for unloading other cargo carried; and in consequence of a break in a pipe connected with one of the tanks, the water turned on rim into her hold among the sugár. The observance of proper care in filling the tanks would have discovered the break, and avoided the damage. No care whatever was exercised in this respect. The voyage had been somewhat tempestuous, and the pipe, in consequence of its situation and the condition of its casing, was liable to break, especially on such a voyage; and yet the water was turned on and allowed to Sow for [474] three-quarters oí an hour after the tanks were full, without the slightest effort to determine whether it was overflowing into the hold or not. About two hours after it had been turned on a sounding wvas made, and although the water was still allowed to flow in, no further measures were taken to ascertain the situation until the following morning, when the hold was found to be flooded, several feet in depth. Continuous soundings until the water was shut off, or opening the sluiceway doors, to allow an escape into the engine room, would have avoided all danger.
The case presents but two questions of fact which need be considered: (1) Should the breaking of the pipe be attributed to “peril of the sea or other water,” or to unseaworthiness of the ship? And if it should be attributed to the former, then (2) was there carelessness in filling the tanks at Philadelphia? As respects the latter I need add nothing to what has been said. The question does not seem debatable. As respects the former there is room for doubt; but I think the weight of the evidence is against the respondent. Conceding that the burden of proof is on the libelant I think the evidence warrants a conclusion that the ship was unseaworthy in this respect. The experts called disagree, as usual. But when it is borne in mind that the respondent warranted the ship fit and safe in all respects for the voyage and cargo—not simply that she seemed to be so, exhibiting no defects to common observation, or that she was honestly believed to be so, but that she actually was fit and safe— and the situation of the pipe and the condition of its casing are considered, it seems difficult to avoid the conclusion that the warranty was broken. The time when the pipe separated, and precisely what caused it, cannot be known. It seems reasonable to believe that it occurred on the voyage. The fact that it broke does not of itself warrant a belief that it was defective when the vessel started; because if there was nothing else to consider, the break mighty and should, be attributed to “peril of the sea.” And the same may be said of the displacement of its casing. I am not satisfied that there was any defect in the pipe on starting. I cannot avoid the conclusion, however, that the casing was imperfect and unsafe at that time. Casing was essential to the safety of the pipe. • Without it the latter would clearly have been insecure, and the ship have been subject to condemnation on that account. Any shifting of the cargo, such as might result from settling, or the motion of the ship in ordinary weather would be likely to break it, if exposed. The sole object of the casing is to afford protection against such danger. It is necessary to this end, therefore, that the casing shall be very substantial, and be securely fastened in place; If defective in either respect the casing tends to increase the danger, for if it gives way the sudden blow thus inflicted would be more likely to break the pipe, than the gradual pressure from the cargo. After a careful reading of the testimony describing this casing and its fastenings, I am satisfied that it was insufficient; that it was unsubstantial,-if not flimsy. I believe that in the settling which ordinarily occurs in such a cargo, or the strain to which the ship is subjected in ordinary weather, on such a voyage, it was likely to give way, as it did. How it was [475] secured at the top is uncertain; the evidence is conflicting. It was probably cleated there as well as at the bottom; but it would seem difficult, if not impossible to secure such a casing as this—which consisted simply of a long board box, without corner posts, or other means of stiffening and strengthening—in such way that it would not work loose in bending and springing, as it necessarily must, from the pressure of the cargo and the motions of the vessel even in ordinary weather. It was (he respondent’s duty to have the pipe and casing absolutely safe; and in this I believe she failed.
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BUTLER, District Judge.
The respondent having contracted to carry sugar from Hamburgh to Philadelphia, received the cargo in good condition, and delivered a part of it seriously damaged. She must therefore compensate for tills loss, unless she can excuse herself from liability. She points to the following clause of the contract:
“The ship and carrier shall not be liable for the loss or damage occasioned by the perils of the seas or other waters, * * * for any latent defect in hull, machinery, or appurtenances, for accidents of navigation, of whatsoever kind, even when occasioned by the negligence, default, or error In judgment of the master, mariners, or other servants of the shipowner, * * « nor for any loss or damage occasioned by causes beyond bis control, steamer having liberty to coal in U. K. * * * Any questions arising under this bill of lading to be settled according to the laws of the flag of the vessel carrying the goods.”
Bhe follows this with an assertion that the damage resulted from "perils of the sea or other waters,” or “accident of navigation,” and that it is therefore covered by the’exemption clause cited; and furthermore that if it did not so result, but is ascribable to negligence of the master or crew, this negligence is also covered by the clause.
Thus it becomes necessary to determine how the damage occurred. Fortunately, there is little room, if any, for controversy respecting this. On reaching Philadelphia the ship undertook to fill her aft water-ballast tanks, to improve her situation for unloading other cargo carried; and in consequence of a break in a pipe connected with one of the tanks, the water turned on rim into her hold among the sugár. The observance of proper care in filling the tanks would have discovered the break, and avoided the damage. No care whatever was exercised in this respect. The voyage had been somewhat tempestuous, and the pipe, in consequence of its situation and the condition of its casing, was liable to break, especially on such a voyage; and yet the water was turned on and allowed to Sow for [474] three-quarters oí an hour after the tanks were full, without the slightest effort to determine whether it was overflowing into the hold or not. About two hours after it had been turned on a sounding wvas made, and although the water was still allowed to flow in, no further measures were taken to ascertain the situation until the following morning, when the hold was found to be flooded, several feet in depth. Continuous soundings until the water was shut off, or opening the sluiceway doors, to allow an escape into the engine room, would have avoided all danger.
The case presents but two questions of fact which need be considered: (1) Should the breaking of the pipe be attributed to “peril of the sea or other water,” or to unseaworthiness of the ship? And if it should be attributed to the former, then (2) was there carelessness in filling the tanks at Philadelphia? As respects the latter I need add nothing to what has been said. The question does not seem debatable. As respects the former there is room for doubt; but I think the weight of the evidence is against the respondent. Conceding that the burden of proof is on the libelant I think the evidence warrants a conclusion that the ship was unseaworthy in this respect. The experts called disagree, as usual. But when it is borne in mind that the respondent warranted the ship fit and safe in all respects for the voyage and cargo—not simply that she seemed to be so, exhibiting no defects to common observation, or that she was honestly believed to be so, but that she actually was fit and safe— and the situation of the pipe and the condition of its casing are considered, it seems difficult to avoid the conclusion that the warranty was broken. The time when the pipe separated, and precisely what caused it, cannot be known. It seems reasonable to believe that it occurred on the voyage. The fact that it broke does not of itself warrant a belief that it was defective when the vessel started; because if there was nothing else to consider, the break mighty and should, be attributed to “peril of the sea.” And the same may be said of the displacement of its casing. I am not satisfied that there was any defect in the pipe on starting. I cannot avoid the conclusion, however, that the casing was imperfect and unsafe at that time. Casing was essential to the safety of the pipe. • Without it the latter would clearly have been insecure, and the ship have been subject to condemnation on that account. Any shifting of the cargo, such as might result from settling, or the motion of the ship in ordinary weather would be likely to break it, if exposed. The sole object of the casing is to afford protection against such danger. It is necessary to this end, therefore, that the casing shall be very substantial, and be securely fastened in place; If defective in either respect the casing tends to increase the danger, for if it gives way the sudden blow thus inflicted would be more likely to break the pipe, than the gradual pressure from the cargo. After a careful reading of the testimony describing this casing and its fastenings, I am satisfied that it was insufficient; that it was unsubstantial,-if not flimsy. I believe that in the settling which ordinarily occurs in such a cargo, or the strain to which the ship is subjected in ordinary weather, on such a voyage, it was likely to give way, as it did. How it was [475] secured at the top is uncertain; the evidence is conflicting. It was probably cleated there as well as at the bottom; but it would seem difficult, if not impossible to secure such a casing as this—which consisted simply of a long board box, without corner posts, or other means of stiffening and strengthening—in such way that it would not work loose in bending and springing, as it necessarily must, from the pressure of the cargo and the motions of the vessel even in ordinary weather. It was (he respondent’s duty to have the pipe and casing absolutely safe; and in this I believe she failed.
There is another ground, however, on which the case may he rested, possibly with greater safety. I have found the respondent guilty of negligence in Ailing the tanks, which contributed directly to the damage; and this negligence deprives her of the exemption from liability for injury from sea peril or accident of navigation, unless the consequences of such negligence are also covered by the (danse cited. The respondent avers that they are so covered; that the negligence was connected with the navigation of the ship, and is therefore within the terms of the clause. Possibly this averment is true; but I seriously doubt it, notwithstanding what is said in The Castleventry, reported in respondent’s briéf, Appendix B.1 Granting it to be true, however, and that the negligence is therefore, within the terms, will our court enforce these terms? Such a provision is unlawful here. If its unlawfulness arose from conflict with our [476] statutes, or violation of our sense of good morals, we, eertainly, would not enforce it. Judicial decisions are, however, as effectual in establishing the law as the enactment of statutes. The controlling fact is the unlawfulness of such contracts here; that they are forbidden by our laws. It is unimportant whether the laws rest upon such decisions or upon statute. We hold them to be in conflict with the public interests, and, therefore, in violation of sound public policy. Declaring them immoral would add nothing to the reason for holding them unlawful. In Bissell v. Railroad Co., 25 N. Y. 442, 29 Barb. 602, however, Judge Denio denounced them as immoral. The stipulation that the parties shall be subject to the laws of England is unimportant, as it adds nothing to the implication which would arise in its absence. The ship bore the English flag, and the laws of Germany, where the contract was made, as well as those of England, sustain such provisions. That the intent of the parties in this regard is thus expressed is, therefore, immaterial. In every instance where the courts have declared such stipulations void, it has, of course, been against the express agreement of the parties. We have determined that such contracts are harmful and wrong; that they tend to encourage'negligence, and justify oppression; that they affect injuriously not only the immediate parties, but the public at [477] large; and that they are therefore unlawful. Why then should we lend our aid for the enforcement of such a contract because it is made abroad, instead of at home? I can see no sound reason why we should. Of course, it is true that contracts are enforceable, generally, according to the law of the place where they are made, or are to be executed, or such other place as’the parties may stipulate, or circumstances may show they contemplated. Where, however, their provisions conflict with justice and sound public policy as declared by the laivs of the jurisdiction, where their enforcement is sought, it is otherwise. Story, Oonfl. Laws, §§ 38, 244; Rousillon v. Rousillon, 14 Ch. Div. 357; 2 Kent, Comm. 458. This question was before the district court for southern New York in The Hugo, 57 Fed. 403, and was decided against the carrier. That case is now pending- on appeal, as I ana informed, in the supreme court. The question was also involved, and decided in the same way, in The Guildhall, 58 Fed. 796. The question was also involved, I think, and was similarly decided by the supreme court, in Railroad Co. v. Lockwood, 17 Wall. 357. in the latter case the contract was for carriage on land, but no difference exists, in the respect under consideration, between such a contract and one for carriage on water. The Montana [Liverpool, etc., Steam Co. v. Phenix Ins. Co.] 129 U. [478] S. 397 [9 Sup. Ct. 469]. The law of New York, where the contract was made, authorized it, and yet the supreme court held it to be contrary to sound public policy, and therefore refused to recognize and enforce it. It will be seen by reference to the report of this case that the eminent counsel who represented the carrier rested their contention exclusively on the fact that the law of New York, to which the parties impliedly bound themselves to submit, authorized the contract. In The Montana, the contract was for carriage by water; the terms were similar, and the decision was the same —the court citing Railroad Co. v. Lockwood, as controlling. I do not see how these cases can be distinguished in principle from the one before me. If the parties there had expressly stipulated for the application of the laws of New York, the result must, of course, have been the same. The stipulation would not have added anything to the force of the express agreement for exemption, or the implied agreement to abide by the laws of New York. The fact that these contracts were made in New York, and not in ^England, affords no just ground for a distinction; the stipulations'were as valid by the laws of New York as this is by the laws of England; and no reason can be seen why the laws of New York should not have been allowed to prevail in those cases, and the laws of England should in this. That state is as distinct and independent a jurisdiction, in this respect, as England is, with the same right to authorize such contracts. Proceeding upon this view the supreme court of Pennsylvania, in Forepaugh v. Railroad Co., 128 Pa. St. 217 [18 Atl. 503], decided that such contracts made in New York are enforceable in Pennsylvania, (though invalid if made here) a majority of the judges disregarding the decisions in Railroad Co. v. Lockwood and The Montana as respects the question of public policy, while a minority dissented in this latter respect.
In the cases cited by the respondent; generally, the precise question before me does not seem to have' been raised or considered, though in some of them it seems to have been involved. I am not referring to cases in state courts. Very little weight should, I think, be attached to the fact that the judge who delivered the opinion in The Montana pointed to the circumstance that the contract there involved was not made in England. It by no means follows that the decision would have been otherwise, if it had.
Counsel for the respondent suggested that our statute of 1893, relating to navigation, etc., shows a change in our views of public policy in this regard. That statute relieves vessels and owners from the consequences of negligence thereafter, of masters and crews under specified circumstances, giving to shippers, as compensation for this loss of security, the carriers’ responsibility for proper care in the selection of such agents. It will be a mistake, I think, to sup: pose that a mere formal or perfunctory discharge of this duty of selection will satisfy the terms and spirit of the statute. We must, however, deal with the question in hand according to the law as it existed when the right of action accrued, which was antecedent to the date of the statute.
A decree must be entered sustaining the libel.