The Portsmouth/Opinion of the Court

by William Strong

United States Supreme Court

76 U.S. 682

The Portsmouth

The contract of the appellant was to deliver the two thousand barrels of salt at Chicago to the cosignee named, 'the dangers of lake navigation only excepted,' and whether the failure to deliver was caused by the excepted dangers is now the only question. A loss by a jettison occasioned by a peril of the sea is, in ordinary cases, a loss by perils of the sea. But it is well settled that, if a jettison of a cargo, or a part of it, is rendered necessary by any fault or breach of contract of the master or owners of the vessel, the jettison must be attributed to that fault, or breach of contract, rather than to the sea peril, though that may also be present, and enter into the case. ^[1] This is a principle alike applicable to exceptions in bills of lading and in policies of insurance. ^[2] Though the peril of the sea may be nearer in time to the disaster, the efficient cause, without which the peril would not have been incurred, is regarded as the proximate cause of the loss. And there is, perhaps, greater reason for applying the rule to exceptions in contracts of common carriers than to those in policies of insurance, for in general, negligence of the insured does not relieve an underwriter, while a common carrier may not, even by stipulation, relieve himself from the consequences of his own fault. ^[3]

In view of this recognized construction given to such clauses in bills of lading as 'perils of the sea excepted,' or, as in this case, 'the dangers of lake navigation only excepted,' it is plain that the appellant has shown no sufficient excuse for the failure to deliver the salt to the consignee of the libellant.

It is manifest that the master was first at fault in mistaking the land which he dimly saw on the evening of the 10th for Racine. He was, in fact, then from thirty to forty miles farther from Chicago than he supposed he was. His supposition was unwarranted by the evidence he had. He thought the place was Racine, not because of its appearance when he saw the steeple and the house. His view of those objects was very indistinct. His language is, 'We could just see a church-steeple and a house, as near as we could calculate.' The outline of the shore he does not pretend to have seen, or anything which, by its appearance, justified his conclusion that he was opposite Racine. His sole reasons for assuming that such was his position are to be found in his having consulted with his engineer about the quantity of steam carried, and in his own estimate of the time when he expected to reach that place. At best, therefore, his conclusion was based upon a conjecture. Considering that the voyage from Fox Island had been through a thick fog, and in a heavy sea; that the wind had not been quite steady; that the speed of the propeller had not been measured by the log, or by observations; and considering also another fact, to which the master testifies, that he did not know the distance from Fox Island to Racine, it seems to us his conjecture that the propeller was opposite Racine at sunset of the 10th was no reliable guide to the subsequent conduct of the voyage. It was, however, accepted as a guide, and it led directly to the disastrous fault afterwards committed of mistaking Waukegan for Chicago. The master, judging that he had steamed far enough from Racine, readily concluded that the light he saw, and the whistle and running cars he heard were at the place of his ultimate destination, and without any careful verification of his opinion he attempted to enter the port. The light he saw, it is true, was a white light, like that at Chicago. But there were other white lights on the west shore of the lake. Waukegan had one. The whistle and the running cars were not peculiarities at Chicago. There was enough in his situation to awaken doubt, and to induce caution. We think that, in his circumstances, the attempt he made to enter the port was inexcusably rash. It was not a necessity. His duty to the owners, and still more to the freighters, was to exercise the highest prudence, as well as skill, to guard against loss. According to his testimony he might safely have remained out in the lake until morning, or he might have signalled for a tug to take the propeller in. It was his duty to do one or the other. He did neither. He testifies he would have gone out into the lake and waited until daylight had he not supposed he had found a harbor. He had no right to act upon such a supposition, which at best was no more than a careless conjecture. He admits, what must be evident, that he could have seen plainer had he waited till daylight before attempting to enter, and that he might have known the pier was Waukegan pier. He thinks a tug could have found the propeller had he signalled, but he neglected to signal. The second engineer also testifies that the propeller attempted to enter the port at her usual speed of eight and a half or nine miles an hour, which, if the statement be correct, was much too great. It is true, his statement varies from the account given by the master and chief engineer; but the chief engineer and the master were both upon deck, and the second engineer was in immediate charge of the engine until within three minutes of the time when the signal was given to stop, and even during those three minutes the chief engineer was outside of the engine-room. The second engineer must, therefore, have best known at what rate of speed the propeller was moving. In view of all this, we have no hesitation in coming to the conclusion, that the loss sustained by the libellants is to be attributed to the fault of the carrier, and not to the excepted dangers of lake navigation.

Were it necessary, it would be easy to show that the conduct of the master after the vessel was stranded was entirely unjustifiable. It was his duty even then to take all possible care of the cargo. He was bound to the utmost exertion to save it. Losses arising from dangers of navigation, within the meaning of the exception in the bill of lading, are such only as happen in spite of the best human exertions, which cannot be prevented by human skill and prudence. ^[4] But in this case no effort was made to save the cargo. The salt was not thrown overboard until after the arrival of the tug. The fog had then lifted. The wind and the sea had subsided. It is evident the salt might then have been saved, if it could not have been removed before.

DECREE AFFIRMED WITH COSTS.

Notes

1. Lawrence et al. v. Minturn, 17 Howard, 100.
2. General Mutual Insurance Co. v. Sherwood, 14 Id. 365.
3. Vide Propeller Niagara v. Cordes et al., 21 Howard, 29.
4. Propeller Niagara v. Cordes et al., cited supra, 685.