Opinion — Schnell v. the Vallescura

S CORRECTED COPY

SUPREME COURT OF THE UNITED STATES.

No. 134.—Ocroser Term, 1934.

Harry Schnell and Samuel Schnell,)

co-partners doing business as H.| On Writ of Certiorari to

Schnell & Co., Petitioners, the United States Cir-

vs. r enit Court of Appeals

The Steamship ‘‘Vallescura’’, her en-| for the Second Circuit.

gines, etc., Lloyd Mediterraneo.

[December 3, 1934.]

Mr. Justice Stone delivered the opinion of the Court.

Petitioners brought suit in admiralty in the district court for

Southern New York, to recover damages for injury to a shipment

of onions on respondent’s S. 8. ‘‘Vallescura’’ from Spain to New

York City. The onions, receipt of which in apparent good condi-

tion was acknowledged by the bill of lading, were delivered in

New York damaged by decay. The vessel pleaded as a defense

an exception, in the bill of lading, from liability for damage by

‘‘decay’’ and ‘‘perils of the seas,’’ and that the damage ‘‘was

not due to any cause or event arising through any negligence on

the part of the vessel, her master, owner or agents.”’

On the trial there was evidence that the decay was caused by

improper ventilation of the cargo during the voyage, and that the

failure to ventilate was due in part to closing of the hatches and

ventilators made necessary by heavy weather,and in part to the

neglect of the master and crew in failing to keep them open at

night in fair weather. The district court entered an interlocutory

decree, adjudging that the libellants recover the amount of the

damage sustained by them, caused by closing the hatches and ven-

tilators during good weather, and appointing a special commis-

sioner to ascertain and compute the amount of damage.

The commissioner, after hearing evidence, found that it was im-

possible to ascertain how much of the damage was due to want of

ventilation in fair weather and how much to want of it in bad.

But, after comparing the periods during which the ventilators were

negligently closed with those during which they were open or

2 Schnell et al. vs. The 8.8. ‘‘Vallescura’’, etc., et al.

properly closed,’ he stated: ‘‘It would seem, therefore, that the

greater part of the damage must have been due to improper

“shutting of the hatches and ventilators, ase concluded that as the

vessel had failed to show what part of the damage was due to bad

weather, the petitioner should recover the full amount of the dam-

age. The district court, accepting the report of the commissioner

as presumably correct, as required by Admiralty Rule No. 43%,

286 U. S. 572, found no basis for rejecting its conclusions and gave

judgment to libellants accordingly. The Court of Appeals for the

Second Circuit, reversed, 70 F. (2d) 261, holding that as the dam-

age was within the clause of the bill of lading exempting the vessel

from liability for decay, the burden was on petitioner to show what

part of the damage was taken out of the exception, because due to

respondent’s negligence.

Although certiorari was granted, 293 U. S. —, to review this

ruling of the court below, most of respondent’s argument before

us was given over to the contention that the record discloses no

finding, by either court below, that any part of the damage was

caused by respondent’s negligence. The decision of the District

Court was made before the promulgation of Rule 464% in Admir-

alty, 281 U. S. 773, requiring the trial court to make special find-

ings of fact. No formal findings were made, but in directing entry

of the interlocutory decree, and after reviewing the evidence and

commenting on the fact that the hatches and ventilators had been

kept closed at night in fair weather, a circumstance which the trial

judge declared established negligence in the care and custody of

the cargo, he stated : ‘‘Thus it appears that this notoriously perish-

able cargo of Spanish Onions (The Buckleigh, 1929 A. M. C. 449,

450) was deprived of all ventilation during the nighttime, regard-

less of the state of the weather. Such treatment was obviously

ruinous and must have caused substantial damage.’’ We have no

doubt that this was intended to be a finding that negligence in fail-

ing to provide proper ventilation was the cause of some of the dam-

age and that, as such, it was adequately supported by evidence.

The commissioner and the court below assumed it to be such and

we so accept it.

1The voyage lasted twenty-three days. The commissioner found that during

the voyage, day and night together, the hatches and ventilators were kept open

only 170 hours, that they were properly closed 144 hours, and improperly

closed for 238 hours.

Pitre eee marine 8m s oper SRLS IE ERE RS MTEL, NN

Schnell et al. vs. The 8.8. “‘Vallescura’’, etc., et al. 3

The failure to ventilate the cargo was not a ‘“‘fault or error in

navigation or management”’ of the vessel, from the consequences of

which it may be relieved by § 3 of the Harter Act of February 13,

1893, § 3, ec. 105, 27 Stat. 445; § 192, Tit. 46, U.S.C. The manage-

ment was of the cargo, within the meaning of §§1 and 2 of the

Act, and not of the vessel, to which §3 relates. The Germanic,

196 U. S. 589, 597; Knott v. Botony Mills, 179 U. S. 69, 73, 74;

The Jean Bart, 197 Fed. 1002, 1006 (D. C.). Hence, we pass to

the decisive question whether, in view of the presumptions which

aid the shipper in establishing the vessel’s liability under a con-

tract for carriage by Sea, it was necessary for the petitioners to

offer further evidence in order to recover the damage which they

have suffered. If, in the state of the proof which the record ex-

hibits, recovery depends upon their ability to produce evidence

which would enable the court to separate the amount of damage at-

tributable to respondent’s negligence from that attributable to

the unavoidable failure to ventilate in bad weather, they have

failed to do so and judgment must go against them. But if re-

spondent can relieve itself from liability only by showing what

part of the damage was due to sea peril, in that bad weather pre-

vented ventilation, judgment must go against it for the full

damages.

In general the burden rests upon the carrier of goods by sea to

bring himself within any exception relieving him from the liability

which the law otherwise imposes on him. This is true at common

law with respect to the exceptions which the law itself annexed

to his undertaking, such as his immunity from liability for act

of God or the public enemy. See Carver, Carriage by Sea (7th ed.)

Chapt. I. A*% applies equally with respect to other exceptions for

which the law permits him to stipulate. Clark v. Barnwell, 12 How.

272, 280; Rich v. Lambert, 12 How. 347, 357 ; Propeller Niagara

v. Cordes, 21 How. 7, 29; The Maggie Hammond, 9 Wall. 435, 459;

The Edwin I. Morrison, 153 U. §. 199, 211; The Folmina, 212

U. S. 354, 361. The reason for the rule is apparent. He is a bailee

entrusted with the shipper’s goods, with respect to the care and

safe delivery of which the law imposes upon him an extraordinary

duty. Discharge of the duty is peculiarly within his control. All

the facts and circumstances upon which he may rely to relieve him

of that duty are peculiarly within his knowledge and usually un-

S

+ Schnell et al. vs. The S.8. ‘‘Vallescura’’, etc., et al.

known to the shipper. In consequence, the law casts upon him the

burden of the loss which he cannet explain or, explaining, bring

within the exceptional case in which he is relieved from liability.

See Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 184;

Chicago & Eastern Illinois R. Co. v. Collins Produce Co., 249 U. S.

186, 192, 193; Ratlroad Co. v. Lockwood, 17 Wall. 357, 379, 380.

To such exceptions the law itself annexes a condition that they

shall relieve the carrier from liability for loss from an excepted

cause only if in the course of the voyage he has used due care

to guard against it. Liverpool & Great Western Steam Co. v.

Phenix Insurance Co., 129 U. S. 397, 488; Compania de Navi-

gacion La Flecha v. Brawer, 168 U. S. 104,117. This rule is recog-

nized and continued in the first section of the Harter Act, which

makes it unlawful to insert any clause in a bill of lading whereby

the carrier shall be relieved of liability for negligence.

It is commonly said that when the carrier succeeds in estab-

lishing that the injury is from an excepted cause, the burden is

then on the shipper to show that that cause would not have pro-

duced the injury but for the carrier’s negligence in failing to

guard against it. Such we may assume the rule to be, at least

to the extent of requiring the shipper to give evidence of negligence

where the carrier has sustained the burden of showing that the

immediate cause of the loss or injury is an excepted peril. Clark

v. Barnwell, 12 How. 272, 280; Railroad Company v. Reeves,

10 Wall. 176, 189, 190; Transportation Co. v. Downer, 11 Wall. 129,

134; The Victory and The Plymothian, 168 U. S. 410, 423; Caw v.

Texas & Pacific Ry. Co., 194 U. S. 427, 482; The Malcolm Bazter,

277 U. S. 323, 334.

But this is plainly not the case where the efficient cause of the

injury for which the carrier is prima facie liable is not shown to

be an excepted peril. The Mohler, 21 Wall. 230, 234; The Edwin

I. Morrison, supra, 211. If he delivers a cargo damaged by causes

unknown or unexplained, which had been received in good condi-

tion, he is subject to the rule applicable to all bailees, that such

evidence makes out a prima facie case of liability. It is sufficient,

if the carrier fails to show that the damage is from an excepted

cause, to cast on him the further burden of showing that the dam-

age is not due to failure properly to stow or care for the cargo

during the voyage. Rich v. Lambert, supra, 357; The Maggie

Hammond, supra, 459; The Folmina, 212 U. S. 354, 361; Chesa-

Schnell et al. vs. The S. 8. “‘Vallescura’’, etc., et al. 5

peake & Ohio R. R. Co. v. Thompson Manufacturing Co., 270 U. S.

416, 422, 493.

Here the stipulation was for exemption from liability for a

particular kind of injury, decay. But the decay of a perishable

cargo is not a cause: it is an effect. It may be the result of a

number of causes, for some of which, such as the inherent defects

of the cargo, or, under the contract, sea peril making it impossible

to ventilate properly, the carrier is not liable. For others, such as

negligent stowage, or failure to care for the cargo properly during

the voyage, he is liable. The stipulation thus did not add to the

causes of injury from which the carrier could claim immunity. It

could not relieve him from liability for want of diligence in the

stowage or care of the cargo.

It is unnecessary for us to consider whether the effect of the

clause is to relieve the carrier from the necessity, in the first in-

stance, of offering evidence of due diligence in caring for a cargo

received in good condition, and delivered in a state of decay. See

The Hindoustan, 67 Fed. 794, 795 (C. C. A. 2d); The Patria, 132

Fed. 971, 972 (C. C. A. 2d); Loma Fruit Co. v. International

Navigation Co., Ltd., 11 F. (2d) 124, 125 (C. GC. A. 2d); The

Gothic Star, 4 F. Supp. 240, 241 (D. C.). For here want of dili-

gence in providing proper ventilation is established and it is found

that the failure to ventilate has caused the damage. It is enough

that the clause plainly cannot be taken to relieve the vessel from

bringing itself within the exception from liability for damage by

sea peril where the shipper has carried the burden of showing that

the decay is due either to sea peril, in that bad weather prevented

ventilation, or to the vessel’s negligence. Where the state of the

proof is such as to show that the damage is due either to an excepted

peril or to the carrier’s negligent care of the cargo, it is for him

to bring himself within the exception or to show that he has not

been negligent. The Folmina, supra.

Similarly, the carrier must bear the entire loss where it appears

that the injury to cargo is due either to sea peril or negligent

stowage, or both, and he fails to show what damage is attributable

to sea peril. Corsar v. J. D. Spreckels & Bros. Co., 141 Fed. 260,

264 (C. C. A. 9th) ; The Gualala, 178 Fed. 402, 406 (C. C. A. 9th) ;

The Jeanie, 236 Fed. 463, 472 (C. C. A. 9th); The Excellent, 16

Fed. 148 (C. C.); Thompson v. The Nith, 36 Fed. 383, 384

6 Schnell et al. vs. The S.S. ‘‘Vallescura’’, etc., et al.

(C. C.) ; Speyer v. The Mary Belle Roberts, 22 Fed. Cas., No. 13,240

(D. C.); Mainwaring v. Bark Carrie Delap, 1 Fed. 874, 879

(D. C.); The Aspasia, 79 Fed. 91 (D. C.); Knohr & Burchard v.

Pacific Creosoting Co., 181 Fed. 856, 860 (D. C.); The Charles

Rohde, 8 F. (2d) 506, 507 (D. C.); H. E. Hodgson & Co., Ltd. v.

Royal Mai Steam Packet Co., 33 F. (2d) 337 (D. C.). In each of

these cases the carrier is charged with the responsibility for a loss

which, in fact, may not be due to his fault, merely because the law,

in pursuance of a wise policy, casts on him the burden of showing

facts relieving him from liability.

The vessel in the present case is in no better position because,

upon the evidence, it appears that some of the damage, in an

amount not ascertainable, is due to sea peril. That does not remove

the burden of showing facts relieving it from liability. If it re-

mains liable for the whole amount of the damage because it is un-

able to show that sea peril was a cause of the-loss, it must equally

remain so if it cannot show what part of the loss is due to that

cause. Speyer v. Mary Belle Roberts, supra; The Rona, 5 Asp.

259, 262; Carver, Carriage by Sea (7th Ed.), § 78, p. 114.

Since the respondent has failed throughout to sustain the burden,

which rested upon it at the outset, of showing to what extent sea

peril was the effective cause of the damage, and as the petitioners

are without fault, no question of apportionment or division of the

damage arises.

Reversed.

A true copy.

Test:

Clerk, Supreme Court, U. 8.

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