De Bruns v. Lawrence — 18 How. Pr. 141

Majority

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UNITED STATES CIRCUIT COURT.

John De Bruns and others agt. John J. Lawrence. John J. Lawrence agt. The Brig Lieutenant-Admiral Collinberg.

Headnote

The master of a vessel is quasi agent for both parties (owner or consignee of the cargo and the owner of the vessel), inrespect to the cargo found in a perishing . condition on board the ship; and his acts, honestly put forth in an emergency, even if not the most suitable and well judged, with the intent to the best interests of all concerned, are to be indulgently considered.

This principle applied to this case, where a cargo of fruit, from Palermo, arrived in'New-York ina damaged and perishing condition, inconsequence of inherent decay, by reason of a long voyage caused by storms and putting in for repairs, &c., which was alleged to have been unnecessarily protracted by the master, and in his unskilful management of the cargo. .

New-York, September, 1859.

Appeals from deerees of the court below.

Owen & Vose, for the Brig Lieutenant-Admiral Collinberg.

Beebe, Dean & Donohue, for John J. Lawrence.

The first of these suits was brought to recover freight on a shipment of fruit, from Palermo to New-

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York, in the brig Lieutenant-Admiral Collinberg: the second, a cross-suit by the consignee, to recover for damages to the fruit in the course of the voyage. The bill of lading contained the usual exceptions—damages of the sea, &c., and also from the liability to inherent decay. The brig sailed from Palermo on the 16th of December, 1855, and arrived at Yew-York on the 20th of May, 1856, after a passage of over seventy days. She encountered a storm on the voyage, and was compelled to bear away to the port of Lisbon, in Portugal, for repairs, where she was delayed some forty-seven days in refitting, and where a survey of a portion of the fruit which was perishable (700 boxes of lemons and 2,150 boxes of oranges) was directed, and which were all discharged from the ship, and placed ip a well ventilated warehouse on shore. The boxes were opened and examined, and the fruit found to be decaying. The unsound were separated from the sound, and then repacked with care. A quantity equal to 414 boxes of the lemons and oranges was found to be so far decayed as to be worthless— the greater proportion oranges. On the arrival of the ship at this port, almost all of these, however, were in a very damaged condition. It is not denied on the part of the counsel for the consignee, but that the damage was occasioned by the natural and internal decay of the articles, but it is insisted that the fault of the master in the course of the voyage contributed to this damage.

I. It is insisted, that the length of time occupied in making the repairs at Lisbon was unnecessary and unreasonable, and that this delay was occasioned by the carelessness and want of energy and activity of the master, and that it contributed to the damage of the fruit; and,

II. That the opening of the boxes of fruit at Lisbon, and the handling of it, in separating the sound from the unsound and repacking the same, had a tendency to increase the decay of the article, and manifested a want of proper skill in taking care of the fruit in the course of the shipment, and contributed to the damage. The court below overruled these positions, and held upon the proofs that the master had not been guilty

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of any culpable omission of duty in the voyage, which caused the loss or deterioration of the fruit, or that the delay of the vessel in Lisbon, where she put in for repairs, beyond the time reasonably required to obtain them, was the immediate or proximate cause of the injuries the fruit had sustained, and that it being proved that the efforts of the master in Lisbon to preserve the fruit were made in good faith, and under the advice of experienced and competent persons, and according to the best judgment of the master, the vessel was not responsible for the injuries the fruit received, even if the means used to save it were not the most suitable and well judged; the master was quasi agent for both parties in respect to the cargo found in a perishing condition on board of his ship; and his acts, honestly put forth in the emergency, with the intent to the best interests of all concerned, are to be indulgently considered.

We have looked into the evidence in this case, and although it is contradictory, and, in respect to the time consumed in the repairs at Lisbon, not very satisfactory, we think the weight of it sustained the view of the court below. We admit it is difficult to understand or believe that some three weeks should be consumed at Lisbon in refitting the vessel, when the work could have been done in this port in as man)' days. And the evidence returned to the commissioner executed in Lisbon explains it fftlly, not, however, in a manner very creditable to the character or enterprise of the government of Portugal.

We are satisfied that the decrees of the court below are right, and should be affirmed.