Eeported b y Dov&la s Kin g s f o r d, Esq., Barrister-at-law.
Feb. 8, 9, and 11, 1871.
(Present: The Right Hon. Sir Ja m e sW. Co l v il e, Sir Joseph Na p ie r, and Lord Justice Ja m e s.)
Th e Fr e e d o m.
Damage to cargo—Bight to sue—24 Viet. c. 10, s. 6—
18 Sc 19 Viet. c. I l l —“ Dangers of the seas” — Ventilation of ship’s hold—Onus of proof.
I n a suit fo r damage to cargo, and fo r improper delivery thereof by the consignees, who were also assignees of the b ill of lading :
Held (affirming the judgment of the Court o f Admi
ralty) that the legal title having been transferred to and vested in the plaintiffs, the right o f suing upon the contract was also transferred to them by force of the statute (18 8f 19 Viet. c. 111). I t was in tended by this statute that the right of suing upon the contract under a b ill of lading should follow the property in the goods therein specified—that is to say, flie legal title to the goods as against the indorser.
The proximate cause o f damage to oil-cake was that from the nature and collocation of a cargo of animal, vegetable, and (to some extent) putrescible matter, from sea-damage done to a portion of the cargo, from the packing and cramming of the ship so as to prevent any circulation of air, and from, the closing of the hatches, the atmosphere in the ship’s hold being without means of escape, became damp, heated, and vitiated:
Held that this proximate cause was not within the legal import of the exception “ dangers of the seas: ”
Held, further, that it was enough fo r the plaintiffs to have established that the defendants bad not
performed, their contract, since the defendants had fa ile d to produce sufficient evidence of due pro
vision fo r ventilation of the ship’s hold, so as to throw the onus on the plaintiffs of proving that the damage might have been prevented by reasonable care and skill on the p art of the defendants as shipowners.
Th iswas an appeal from a judgment of the Court of Adm iralty in a cause of damage to cargo insti
tuted under sect. 6 of the A dm iralty Court A ct 1861 (24 Viet. c. 10), to recover damages on account of alleged breaches of contract and duty on the part of the appellants w ith respect to certain parcels of oil-cake, which were laden ou board the Freedom at New York, for carriage to and delivery in London.
The petition filed by the respondents alleged (so far as material) as follows
On or about Dec. 9,1868, Messrs. Campbell and Thayer, of New York, caused to be shipped six parcels of goods, consisting each of 500 bags of o il
cake, marked respectively w ith certain marks and numbers, on board the Freedom, then lyin g at New York, to be conveyed from New Y o rk to London, upon the terms of six bills of lading, comprising respectively the said six parcels. These bills of lading were duly signed and delivered to Messrs.
Campbell and Thayer, and were in form exactly similar to one another, the following being the material passage :—“ Shipped in good order and well-conditioned by Campbell and Thayer on board the ship called the Freedom, whereof--- is master, now lying in the port of New Y o rk and bound for London, to say (500) five hundred bags linseed-cake, being marked and numbered as in the margin, and are to be delivered in the like order and con
dition at the port of London (the dangers of the seas only excepted) unto order or to assigns, he or they paying freight for the said merchandise 17s. 6d. sterling per ton, w ith 5 per cent, primage and average accustomed of 22401b. gross. In witness whereof the master or purser of the said vessel hath affirmed to three bills of lading, all of this tenour and date, one of which being accom
plished, the others to stand void. Dated in New York, Sept. 3, 1868. Weight unknown.”
The bills of lading were afterwards indorsed by Campbell and Thayer to the respondents, who thereupon became the consignees of the oil-cake, and the assignees of the bills of lading w ithin the true intent and meaning of sect. 6 of the A d m iralty Court A ct 1861 (24 Viet. c. 10). The oil-cake was (as the petition alleged) delivered much damaged and in much worse order and condition than when shipped, though this was not occasioned by dangers of the seas. And the six parcels were not delivered to the respondents separately; but 3000 bags were, by the master of the Freedom, mixed up w ithout regard to marks or numbers, and without the damaged portion being separated from the un
damaged.
The appellant’s answer denied the aforesaid statements in the petition, and also alleged that the damage, if any, was occasioned by the dangers of the seas, or by t he natural qualities of the oil-cake, and not by any breach of contract or by any negligence or breach of duty on the part of the master or crew of the Freedom. The cause was heard in the court below in Jan. 1870, and on March 4,1870, Sir R. Phillimore gave judgment (reported 22 L. T. Rep. N. S. 175) in favour of the respondents, and directed the usual reference to the registrar and merchants.
M A R IT IM E L A W CASES. 29
PRIV. C o.] Th-E Fr eedo m. [Pr iv. Co.
Butt, Q.C. and Clarkson for the appellants.
Milward, Q.C. and Cohen for the respondents.
The authorities cited are noticed in the judg
ment.
Judgment was delivered b y Sir Ja m e s W. Co l- TuLE'— case a Proceeding was instituted in the Court of Adm iralty, under 23 Viet. c. 10, s- b, by which jurisdiction has been given to the court over any claim by the owner or consignee, or assignee of any b ill of lading, or any goods carried into any port of England or Wales in any ship, for damage done to the goods, or any part thereof, by fhe negligence or misconduct, or for the breach of any duty or breach of contract on the part of the master, owner, or crew. By this section a new remedy has been given to those who have a rig h t ci suit in any of the cases specified. By the 18 & 19 ye t. c. I l l , the consignee of goods named in a bill
°f lading and the indorsee of a b ill of lading, to whom the property in the goods mentioned shall cave passed upon or by reason of such indorse
ment, shall have transferred to and vested in him a|l rights of suit and be subject to the same lia bilities in respect of such goods as if the contract m the b ill of lading had been made with himself, the transaction in the present case between the Plaintiffs and the shippers of the goods in respect cl which the suit was instituted, was one of a class described in the elaborate opinion of M r. Justice fu lle r, delivered in the House of Lords, in which he Bhows that the nature of the dealing requires that the property in the goods specified in the bills cl lading should be transferred to and vested in l he indorsee thereof: (6 East, 29, n.) The plaintiffs Were consignees for sale, but, as part of the trans
it io n , a b ill of exchange was drawn by the con
signors for nearly the fu ll value of the goods, the ulsof lading were indorsed by them and forwarded
? the plaintiffs, by whom the draft of the con-
®!gnors was accepted and paid in due course. The :®gal title to the property in the goods specified in he bills of lading was thus transferred to and Rested in the plaintiffs; the rig h t of suing upon he contract in the bills of lading was transferred 0 them by force of the statute (18 & 19 Viet. c.
11)- I t was suggested in the argument that the Pplicability of this enactment was doubtful, in ousequence of some words reported to have fallen -p°m one of the learned barons in the Court of g(,XJ^letlu er, in the case of Fox v- Knott (6 H . & N.
u°). B u t having regard to the facts of that 2?®e> and looking at the report in 30 L. J.
°y> Ex., i t would seem to have been intended .? decide no more as to the construction of aQe 18 & 19 Viet. c. I l l , than that i t had no Phlication to the case, and that to entitle the in- Cfsee of a b ill of lading to have transferred to and jp^e d in him a rig h t of suit as thereby enacted, g, 9 circumstances under which the b ill of lading
aU have been indorsed must be such that the property in the goods shall have passed to the in- m n f 6 ^ reason of the indorsement. The plaintiff
that case was the charterer, and, as such, the la A ler' taken an assignment of the b ill of jj. lngupon the terms that freight should be paid.
Was attempted on the part of the defendant to t jj9 statute as having extinguished the rig h t of of Towner t0 freight, i f he took an assignment lo be b ill 0f ladingj whereby (it was argued) he had rp^ his remedy against the shipper for the freight.
Ijq nC°uUrt decided in favour of the plaintiff. Their rdships are satisfied that i t was intended by
this A ct that the rig h t of suing upon the con
tract under a b ill of lading, should follow the pro
perty in the goods therein specified ; that is to say, the legal title to the goods as against the indorser.
They entertain no doubt that in the present case the legal title was transferred to and vested in the plaintiffs, and that the subordinate rig h t under the contract was transferred to them by the statute.
The plaintiffs have brought their suit for non
performance of the contract stated in the bills of lading. There were six parcels of goods, each con
sisting of 500 bags of linseed cake; there was a separate b ill of lading for each parcel. They are all in the same form, containing an acknowledg
ment of having received each parcel “ in good order and well conditioned, and an undertaking to deliver them in like good order and condition at the port of London, the dangers of the sea only excepted.”
I t was not disputed that the goods, fo i the damage to which the suit was brought, were not delivered in the order and condition in which they were shipped. B ut the question raised by the answers of the defendants is, whether this default was caused either by “ the dangers of the seas,” or by “ the natural qualities of the oil-cake ? ” The onus of proving either branch of this defence lay upon the defendants. The former is founded on the express stipulation in the contract; the latter, on the implication of law. I t would be unreasonable to make the shipowners responsible for deterioration or damage caused by latent im perfection or defects in the oil-cake, which could not be supposed to have been known to them at ,the time of the shipment. I t was properly ob
served by Mr. Justice Neilson, in delivering the j udgment of the court in the American case (Clark v. Barnwell, 12 Howard N. S. 272), cited in tho argument, “ that the acknowledgment in the b ill of lading can only mean that as far as they had an opportunity of judging, the, goods were sent in a perfectly good condition.” The defendants in this suit were not precluded from showing (if they could) that thedamaged oil-cake was imperfectly manufac
tured or insufficiently prepared for the voyage ; or that it had some intrinsic defect, at the time of ship
ment, which caused the damage. A notice was served upon the defedants, on the part of the plaintiffs, before sending out a commission to America to take evidence on the subject. Having considered the evidence that was taken there, as well as that which was given in the Court of Adm iralty, their Lordships are satisfied that the oil-cake was in good order and well-conditioned at the time of shipment.
This disposes of one branch of the defence.
The learned judge of the Court of Adm iralty came to the conclusion upon the evidence, especially that of Dr. Letheby, that the damage complained of was mainly caused by the bones that formed part of the cargo. But at the same time he held that i t was not necessary to found his judgment upon this, inasmuch as the onus was On the defen
dants to show, and that they had not shown, that this damage was caused by “ dangers of the seas.”
Their Lordships are not prepared to say what may have been the actual or the relative effect of the bones, considered as a distinct item in the com
bination of concurrent causes, which led to and re
sulted in the damage to the oil-cake. The cargo was made up (amongst other things) of beef and pork below, and a large number of bags of oil-cake, some below and some above ; clover seed behind ; bones in the forehold, loose and in bulk, about 3ft.
30
M A R IT IM E LA W CASES.
Th e Freedo m. [ Pr iv. Co.
Pjuv. Co.]
from the oil-cake; a portion strewed about the bags of oil-cake, and some amongst tobacco. Every place was filled up so that no space was left in which any part of the cargo could be put. One of the witnesses for the defendants was asked his opinion as to the stowage with reference to allow
ing the air to circulate. His answer was—“ I did not fancy she could haye been stowe 1 better. The ship was as fu ll as she could possibly be stowed.”
That is to sa^, she was well stowed in the sense of being well crammed and closely packed; but (as the result showed) so as to prevent the circulation of air. A t a subsequent stage, when there was no ventilation, and no outlet was left for heat and damp to escape, the bones may have gradually con
tributed to taint the atmosphere. That in such cir
cumstances the oil-cake would be liable to become mouldy, is stated by competent witnesses on both sides. I t is difficult, i f not impracticable, to come to any satisfactory conclusion as to the relative effect of each of the concurrent causes that by their combination brought about the proximate cause of the damage. Causes minute in themselves may be intensified in combination with others. The words in the bills of lading—“ dangers of the seas”
—must, of course, be taken in the sense in which they are used in the policy of insurance. I t is a settled rule of the law of insurance not to go into distinct causes, but to look exclusively to the immediate and proximate cause of the loss. In the present case, the remote causes are not only dis
tinct from the proximate cause, but they are, for the most part, unconnected with dangers of the seas. I f a shipowner undertakes to convey such a cargo, under the ordinary contract set forth in the bills of lading, he takes upon himself the risk of consequences and contingencies other than those which are within the express exception, or that which is implied by law. The question here is notone of negligence, but of breach of contract, as explained in the judgment delivered by Sir John Patteson in Tronson v. Bent (8 Moore’s P. C. 0.
433) The extent of sea damage done to some other parts of the cargo, so far as i t was distinctly proved, was but limited ,and the indirect effect of this damage is but a matter of conjecture. Some of the p rin cipal witnesses for the defendants (including the master) do not notice i t at all, and some allude to i t without relying much upon it. As to the closing of the hatches, the master assents to the suggestion made to him, that this may have had a share in causing the damage to the oil-cake, but he does not put i t forward in the first instance. During the early part of the voyage (he says) he occasionally kept the hatches open, but during the last two-thirds of the voyage the weather was so tempestuous that he was under the necessity of closing them. He has not stated at what date this hecessity arose, nor (ex
cept in this vague form) for what periods i t con
tinued. The log was not referred to; he did not make a protest after arrival at the port of London. The necessity must have ceased for some considerable period before the hatches were opened, on the th ird day after arrival, when there was such a rush of steam and heat as plainly indicated the absence of any means of escape for the confined and vitiated air during the time that the hatches were closed.
One of the witnesses for the defendants says he thought it would have exploded the decks. Their Lordships have referred to the surveys and reports that were given in evidence, and have considered all the evidence relating thereto. They are of
opinion that the conclusion proper to be drawn from the evidence is this, that from the nature and collocation of this cargo of animal, vegetable, and (to some extent) putrescible matter, the sea damage done to a portion of the cargo, the packing and cramming of the ship so as to prevent any circulation of air, and the closing of the hatches, the atmosphere in the ship’s hold became heated, damp, and vitiated, without means of escape, and that this atmosphere was the proximate cause of the damage to the oil-cake, which is the subject of this suit. This proximate cause cannot be brought within the legal import of the exception of damages of the seas. In the American case (Clark v.
Barnwell) (ubi sup.) that was referred to, i t is said that where the defendants have brought their case within an exception in the contract, this shifts the onus upon the plaintiffs to prove that the dam
age might have been provided against and pre
vented by reasonable care and skill on the part of the shipowners. But in order to make this appli
cable, the defendants should first have given suffi
cient evidence to bring their case (prim a facie at least) within such an exception. Their Lordships think that they have failed to do so in the pre
sent case. The simple truth is, that they did not make provision sufficient to enable them to fu lfil their contract. They ought to have known that there were portions of the cargo which if deprived of ventilation, without circulation of air, and without an outlet for heated, damp, or vitiated air to escape, the result would be, in the natural course of things, that the oil-cake would be damaged.
As they did not in fact provide sufficiently against such a natural, if not necessary, consequence, they
As they did not in fact provide sufficiently against such a natural, if not necessary, consequence, they