A-8170, MAY 5, 1926, 5 COMP. GEN. 892

A-8170: May 5, 1926

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WHERE GOODS ARE DELIVERED TO THE VESSEL IN GOOD ORDER AND CONDITION AND ARE RECEIVED AT DESTINATION IN BAD ORDER AND CONDITION. THE PRESUMPTION IS THAT THE LOSS RESULTED IN TRANSIT DUE TO ACTS OF OMISSION OR COMMISSION OF THE VESSEL AND THE BURDEN IS ON THE CARRIER TO SHOW OTHERWISE. SAID COMPANY HAS REPORTED THAT THE MEATS WERE IN GOOD CONDITION WHEN SHIPPED. AS WELL AS TO ITS FITNESS TO BE ACCEPTED UNDER MARINE CORPS SPECIFICATIONS WHEN SAME WAS DELIVERED TO THE STEAMSHIP COMPANY AT PIER NO. 27. THE RECORD FURTHER DISCLOSES THAT A PROTEST RELATIVE TO THE BAD CONDITION OF THIS MEAT WAS MADE AT THE WHARF IN SANTO DOMINGO TO THE SUPERCARGO OF THE SHIP. THE CLAIM OF THE STEAMSHIP COMPANY FOR TRANSPORTATION CHARGES OF $11.09 WAS ALLOWED IN THE AMOUNT OF $11.04.

A-8170, MAY 5, 1926, 5 COMP. GEN. 892

TRANSPORTATION, OCEAN CARRIERS - PUBLIC PROPERTY DAMAGED IN TRANSIT UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF FEBRUARY 13, 1893, 27 STAT. 445, AN OCEAN CARRIER OPERATING FROM PORTS IN THE UNITED STATES MAY NOT CONTRACT AGAINST LIABILITY FOR LOSS RESULTING FROM UNSEAWORTHINESS OF A VESSEL, AND WHERE GOODS ARE DELIVERED TO THE VESSEL IN GOOD ORDER AND CONDITION AND ARE RECEIVED AT DESTINATION IN BAD ORDER AND CONDITION, THE PRESUMPTION IS THAT THE LOSS RESULTED IN TRANSIT DUE TO ACTS OF OMISSION OR COMMISSION OF THE VESSEL AND THE BURDEN IS ON THE CARRIER TO SHOW OTHERWISE.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 5, 1926:

THE BULL-INSULAR LINE, INC., APPLIED FEBRUARY 16, 1925, FOR REVIEW OF SETTLEMENT NO. T-10543 1/2-N, DATED FEBRUARY 6, 1925, OF BILL 578, APPLYING ITS CLAIM FOR TRANSPORTATION CHARGES ON A SHIPMENT ON THE S.S. MARY, VOYAGE NO. 40, OF 509 POUNDS OF FREIGHT FROM NEW YORK, N.Y., TO SANTO DOMINGO, D.R., ON BILL OF LADING M-27230-24, DATED JUNE 25, 1924, WHICH, AMONG OTHER ARTICLES, INCLUDED 2 BUNDLES LAMB HINDS, 155 POUNDS, AND MEASURING 8 FEET 9 INCHES, AND 3 BOXES OF PORK LOINS, 154 POUNDS, AND MEASURING 6 FEET 6 INCHES, AGAINST THE VALUE OF THE SHIPMENT AND CHARGING IT WITH A BALANCE OF $74.20.

THE UNITED STATES PURCHASED THE MEATS IN QUESTION FROM THE KANSAS BEEF AND PROVISION COMPANY IN NEW YORK, N.Y., AND SAID COMPANY HAS REPORTED THAT THE MEATS WERE IN GOOD CONDITION WHEN SHIPPED. MOREOVER, THE GOVERNMENT INSPECTOR, BUREAU OF ANIMAL INDUSTRY, REPORTED THAT ON JUNE 25, 1924, HE INSPECTED AND CERTIFIED TO THE SOUNDNESS OF THE MEAT, AS WELL AS TO ITS FITNESS TO BE ACCEPTED UNDER MARINE CORPS SPECIFICATIONS WHEN SAME WAS DELIVERED TO THE STEAMSHIP COMPANY AT PIER NO. 27, NEW YORK, N.Y., ON SAID DATE. WHEN THE S.S. MARY DELIVERED THE MEATS AT SANTO DOMINGO, THE DEPOT COMMISSARY OFFICER RECEIPTED THE BILL OF LADING FOR THE WEIGHT OF 509 POUNDS, WITH THE NOTATION THEREON THAT "ALL LAMB HINDS AND PORK LOINS RECEIVED IN BAD CONDITION.' THE RECORD FURTHER DISCLOSES THAT A PROTEST RELATIVE TO THE BAD CONDITION OF THIS MEAT WAS MADE AT THE WHARF IN SANTO DOMINGO TO THE SUPERCARGO OF THE SHIP. THE CLAIM OF THE STEAMSHIP COMPANY FOR TRANSPORTATION CHARGES OF $11.09 WAS ALLOWED IN THE AMOUNT OF $11.04, IN THE SETTLEMENT UNDER REVIEW, BUT APPLYING SAME AGAINST $83.87, AS THE COST OF THE DETERIORATED MEAT, RESULTS IN A BALANCE OF $72.83 BEING DUE THE UNITED STATES. THE QUESTION FOR DECISION IS AS TO THE LIABILITY OF THE STEAMSHIP COMPANY FOR THE DETERIORATION OF THE MEAT.

THE BILL OF LADING CARRIED A CLAUSE THAT "UNLESS OTHERWISE SPECIFICALLY PROVIDED HEREON, THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER," AND ALSO A NOTATION ON ITS FACE"REFRIGERATOR CARGO.' "NOTE: PLEASE STORE IN ICE BOX.' AT THE REQUEST OF THIS OFFICE, THE STEAMSHIP COMPANY FURNISHED A COPY OF ITS FREIGHT TARIFF NO. 6 APPLYING FROM NEW YORK, N.Y., TO DIRECT PORTS IN THE DOMINICAN REPUBLIC AND TURKS ISLAND AND ALSO A COPY OF ITS STRAIGHT BILL OF LADING APPLICABLE IN THIS SERVICE. THE TARIFF PURPORTS TO PROVIDE THAT PERISHABLE GOODS ARE TAKEN ONLY AT OWNER'S RISK OF FROST, HEAT, DECAY, AND DETERIORATION, AND SUBJECT TO THE TERMS AND CONDITIONS OF THE CARRIER'S BILL OF LADING. PARAGRAPH 16 OF SAID BILL OF LADING PROVIDES THAT WHETHER OR NOT THE SHIP IS EQUIPPED WITH REFRIGERATED OR SPECIALLY COOLED COMPARTMENTS, THE CARRIER DOES NOT UNDERTAKE TO TRANSPORT GOODS IN COOLED COMPARTMENTS OTHERWISE THAN AS ORDINARY CARGO AND THAT FRESH MEATS, HOWEVER CARRIED, ARE RECEIVED AND CARRIED AT SOLE RISK OF THE OWNER AND THAT THE CARRIER SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF SUCH GOODS, PROVIDED DUE DILIGENCE SHALL HAVE BEEN EXERCISED TO MAKE THE SHIP SEAWORTHY. THE STEAMSHIP COMPANY ALLEGES THAT THE MEAT BOX WAS KEPT AT ABOUT 30 DEGREES ALL THE WAY FROM NEW YORK, THAT NO COMPLAINT WAS RECEIVED RELATIVE TO SIMILAR SHIPMENTS, AND THAT IT HAS SHOWN DUE DILIGENCE AND ORDINARY CARE IN THE TRANSPORTATION OF THE MEAT AND IS NOT LIABLE FOR THE DETERIORATION THEREOF.

SECTION 2 OF THE HARTER ACT OF FEBRUARY 13, 1893, 27 STAT. 445, PROVIDES:

THAT IT SHALL NOT BE LAWFUL FOR ANY VESSEL TRANSPORTING MERCHANDISE OR PROPERTY FROM OR BETWEEN PORTS OF THE UNITED STATES OF AMERICA AND FOREIGN PORTS, HER OWNER, MASTER, AGENT, OR MANAGER, TO INSERT IN ANY BILL OF LADING OR SHIPPING DOCUMENT ANY COVENANT OR AGREEMENT WHEREBY THE OBLIGATIONS OF THE OWNER OR OWNERS OF SAID VESSEL TO EXERCISE DUE DILIGENCE, PROPERLY EQUIP, MAN, PROVISION, AND OUTFIT SAID VESSEL, AND TO MAKE SAID VESSEL SEAWORTHY AND CAPABLE OF PERFORMING HER INTENDED VOYAGE, OR WHEREBY THE OBLIGATIONS OF THE MASTER, OFFICERS, AGENTS OR SERVANTS TO CAREFULLY HANDLE AND STOW HER CARGO AND TO CARE FOR AND PROPERLY DELIVER SAME, SHALL IN ANY WISE BE LESSENED, WEAKENED, OR AVOIDED.

SECTION 4 OF THIS ACT MAKES IT THE DUTY OF THE SHIPOWNER OR AGENT TO ISSUE BILLS OF LADING SHOWING WHAT THE MERCHANDISE CONSISTS OF, THE APPARENT CONDITION WHEN RECEIVED FOR TRANSPORTATION, AND PROVIDES THAT SUCH BILL OF LADING SHALL BE PRIMA FACIE EVIDENCE OF THE RECEIPT OF THE MERCHANDISE THEREIN DESCRIBED.

IT WAS SAID IN THE SILVIA, 171 U.S. 462, THAT "THE TEST OF SEAWORTHINESS IS WHETHER THE VESSEL IS REASONABLY FIT TO CARRY THE CARGO WHICH SHE HAS UNDERTAKEN TO TRANSPORT; " AND IN THE SOUTHWORK, 191 U.S. 9, IT WAS SAID THAT:

* * * AS SEAWORTHINESS DEPENDS NOT ONLY UPON THE VESSEL BEING STAUNCH AND FIT TO MEET THE PERILS OF THE SEA, BUT UPON ITS CHARACTER IN REFERENCE TO THE PARTICULAR CARGO TO BE TRANSPORTED, IT FOLLOWS THAT A VESSEL MUST BE ABLE TO TRANSPORT THE CARGO WHICH IT IS HELD OUT AS FIT TO CARRY OR IT IS NOT SEAWORTHY IN THAT RESPECT. BUT FOR THE SPECIAL APPLIANCES FURNISHED BY THE VESSEL, PERISHABLE CARGOES, SUCH AS DRESSED BEEF, COULD NOT BE SHIPPED ON LONG VOYAGES IN HOT WEATHER.

BY ACCEPTING THE SHIPMENT OF FRESH MEAT IN THIS CASE, THE STEAMSHIP COMPANY HELD OUT THAT THE S.S. MARY WAS EQUIPPED FOR THE CARRYING OF SUCH CARGO AND THE ATTEMPTED RELIEF, IN PARAGRAPH 16 OF THE BILL OF LADING, FROM LIABILITY FOR DETERIORATION IN TRANSIT CAN NOT PREVAIL AGAINST THE PROVISIONS OF SECTION 2 OF THE HARTER ACT, SUPRA. IN COMMENTING UPON THE PROVISIONS IN AN OCEAN PASSENGER TICKET COVERING THE SHIPMENT OF THE BAGGAGE OF A PASSENGER, THE KENSINGTON, 183 U.S. 263, WHICH WERE VERY SIMILAR TO THE PROVISIONS OF PARAGRAPH 16 OF THE COMMERCIAL BILL OF LADING IN THIS CASE, CHIEF JUSTICE WHITE SAID:

TESTING THE EXEMPTIONS FOUND IN THE TICKET BY THE RULE OF PUBLIC POLICY, IT IS APPARENT THAT THEY ARE VOID, SINCE THEY UNEQUIVOCALLY SOUGHT TO RELIEVE THE CARRIER FROM THE INITIAL DUTY OF FURNISHING A SEAWORTHY VESSEL FOR ALL NEGLECT IN LOADING OR STOWING, AND INDEED FOR ANY AND EVERY FAULT OF COMMISSION OR OMISSION ON THE PART OF THE CARRIER OR HIS SERVANTS. * *

OBVIOUSLY A SHIPMENT OF FRESH MEAT TO A TROPICAL PORT IS SUCH A SHIPMENT, FROM THE VERY NATURE OF THE COMMODITY, AS TO RENDER IT LIABLE TO LOSS UNLESS THE SHIP BE PROPERLY EQUIPPED WITH REFRIGERATING APPLIANCES AND THE MEATS PROPERLY STOWED. WHEN THERE IS LOSS BY DETERIORATION IN SUCH SHIPMENTS THE BURDEN IS UPON THE CARRIER TO SHOW THAT THE SHIP WAS SEAWORTHY IN THESE RESPECTS. APROPOS OF THIS BURDEN, THE SUPREME COURT OF THE UNITED STATES HELD IN INTERNATIONAL NAVIGATION COMPANY V. FARR AND BAILY MANUFACTURING COMPANY, 181 U.S. 218, THAT:

WE REPEAT THAT EVEN IF THE LOSS OCCUR THROUGH FAULT OR ERROR IN MANAGEMENT, THE EXEMPTION CAN NOT BE AVAILED OF UNLESS THE VESSEL WAS SEAWORTHY WHEN SHE SAILED, OR DUE DILIGENCE TO MAKE HER SO HAD BEEN EXERCISED, AND IT IS FOR THE OWNER TO ESTABLISH THE EXISTENCE OF ONE OR THE OTHER OF THESE CONDITIONS. * * *

HERE BOTH THE VENDOR AND THE GOVERNMENT INSPECTOR OF THE LAMB HINDS AND PORK LOINS HAVE REPORTED THAT THE MEATS WERE IN GOOD CONDITION WHEN DELIVERED TO THE STEAMSHIP COMPANY AND THEY WERE SO ACCEPTED FOR SHIPMENT. IT IS UNDISPUTED THAT WHEN DELIVERED IN SANTO DOMINGO THE MEATS WERE DETERIORATED AND UNFIT FOR HUMAN CONSUMPTION. THE CARRIER CAN NOT ESCAPE LIABILITY FOR THE LOSS BY SHOWING FROM THE LOG OF THE SHIP THE TEMPERATURE TO HAVE BEEN 30 DEGREES AND THAT SIMILAR GOODS WERE DELIVERED AT LA ROMANA ON JULY 4 WITHOUT COMPLAINT. WHILE NOT MATERIAL TO THE CASE HERE PRESENTED, IT MAY BE NOTED THAT THERE IS NO AFFIRMATIVE SHOWING THAT THE CARGO IN THIS INSTANCE CONTAINED OTHER LIKE SHIPMENTS THAT WERE DELIVERED IN GOOD CONDITION. THE DETERIORATION MIGHT HAVE OCCURRED AFTER THE MEAT BOX WAS OPENED FOR REMOVAL OF THE LA ROMANA SHIPMENT OR BY OPENING OF THE MEAT BOX FROM TIME TO TIME DURING THE VOYAGE TO SECURE SHIP STORES, A PART OF WHICH APPEAR TO HAVE BEEN IN THE SAME BOX. HOWEVER, THAT MAY BE, THE GENERAL RULE OF A CARRIER'S LIABILITY FOR LOSS OF GOODS IN TRANSIT IS STATED IN 6 CYC. 376, AS FOLLOWS:

THE GENERAL RULE AS TO THE COMMON CARRIER'S LIABILITY WITH REFERENCE TO THE GOODS IN HIS POSSESSION AS CARRIER, AND REGARDLESS OF ANY CONTRACTUAL EXCEPTIONS, IS THAT HE IS LIABLE FOR ALL LOSS OR DESTRUCTION OF OR INJURY TO SUCH GOODS, NOT OCCASIONED BY THE ACT OF GOD OR THE PUBLIC ENEMY. THEREFORE, WHERE THE LOSS IS NOT DUE TO THE EXCEPTED CASES,PROOF OF NEGLIGENCE IS IMMATERIAL, AND THE CARRIER CAN NOT ESCAPE LIABILITY BY PROVING REASONABLE CARE AND DILIGENCE. * * *

IN CONCLUSION IT MAY BE SAID THAT A CARRIER IS NOT ABLE, IN VIEW OF THE HARTER ACT, TO SHIFT RESPONSIBILITY FOR LOSS RESULTING FROM UNSEAWORTHINESS OF A VESSEL ON THE SHIPPER; AND THERE BEING NO SHOWING TO BRING THE LOSS OF THE MEATS UNDER ANY OF THE RECOGNIZED EXEMPTIONS OF CARRIERS FROM LIABILITY, IT MUST BE HELD, ON THE FACTS NOW APPEARING, THAT THE STEAMSHIP COMPANY IS PROPERLY CHARGEABLE WITH THE VALUE OF THE MEATS LESS THE AMOUNT OF FREIGHT OR $72.83.

THE SETTLEMENT MUST BE AND IS SUSTAINED AND THE STEAMSHIP COMPANY SHOULD PROMPTLY REMIT TO THIS OFFICE THE BALANCE OF $72.83.