Knowlton v. Providence & New York Steamship Co. — 33 N.Y. Super. Ct. 370

Majority

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WILLIAM KNOWLTON and others, Plaintiffs, v. THE PROVIDENCE & NEW YORK STEAMSHIP COMPANY, Defendants.

Headnote

Vessels navigating Long Island Sound, and constructed for ocean or coastwise navigation, are within the provisions of the act of Congress of March 8, 1871 (9 Btat. at Large, 635), and the owners thereof are not liable to answer for loss or damage by Are to any merchandise shipped in the same, unless such Are was caused by the design or neglect of such owner or owners.

The fact that such a vessel, in her voyage, entered and passed through or into any bays or rivers, does not bring the same within the exception in same act, of vessels “ used in rivers, or inland navigation.”

Before Barbour, Ch. J., McCunn and Spencer, JJ.

Decided June 3, 1871.

On exceptions ordered to be heard at the general term in the first instance.

The defendant was owner of the steam propeller Oceanus, running between Providence and New York, and on May 23, 1868, received on board that vessel, at Providence, certain goods to be carried to New York, and there delivered to the plaintiffs. The steamer safely prosecuted her voyage to .New York, and arriving there on the next day, Sunday, at an early hour in the morning, made fast to her usual pier, and discharged her passengers and their baggage, but it being Sunday, no freight was landed. Shortly before noon, on the same day, a fire broke out in the office at the head of the pier, and there being a strong wind blowing down the pier, the fire spread rapidly along the roof of the pier, and communicated to the Oceanus, which lay some thirty or forty feet from the bulkhead, and in spite

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of all efforts to check it, the vessel was soon wrapped in flames, and with her contents, including the goods of the plaintiff, was entirely destroyed. Everything was done that could be done to save the vessel and cargo, from the first discovery of the fire.

Upon this state of proofs, the defendant moved to dismiss the complaint, upon the ground, that by the act of Congress, passed March 3, 1851, limiting the lia-, bility of shipowners, the defendant was not liable for the destruction of the goods by fire. But the learned court decided that the act was not applicable to the case, on the ground, and for the reason, that the vessel was engaged in inland navigation, and was within the exception contained in the seventh section of the act, which section declares that the act shall not apply to the owners of vessels used in inland navigation, and that, therefore, under the facts established, the defendants were liable as common carriers, the loss having occurred otherwise than by the act of Gk>d, or the public enemy, and denying the motion, ordered a verdict for the plaintiff, for the value of the goods—to which denial and order the defendants excepted. The court also refused to receive any evidence on the question of negligence on the part of the defendants, or of their servants, as causing the fire, and also refused to submit any question of fact to the jury, to which the defendants also excepted.

Edward D. McCarthy, for plaintiffs.

I. The act of Congress does not apply to the case, the vessel burned having fully completed her voyage, and been fastened to a pier in the city of E"ew York, where sire had been for several hours before the fire. (1.) This consideration is in no wise different from that where the cargo had been landed on the wharf, though still under control of the carrier, the object being, in either case, to protect the carrier only while engaged in actual transportation.

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But it has been decided, that the act does not apply to the case of property on the wharf, and still under control of the carrier (Salmon Falls Manufacturing Company v. Tangler, 6 Am. Law Reg. 510 ; 2 Curt. C. Ct.). (2.) Nor is it different to the consideration of goods burned in a lighter, which was conveying them from the vessel to the wharf. Yet the vessel was held liable . in such case (Morewood v. Pollock, 18 Eng. L. & E. 341). In the last case, the act of George III., c. 86, from which our act is taken, was construed more strictly than we now ask. In that case, the “Barbara” had '.not fully completed her voyage. She had not reached her wharf. Her liability arose because of the destruction of the lighter, the property of other parties—her agents. She was held to the general "liability of the' carrier, because the goods destroyed were on board her agents’ vessel. She was held beyond "the second section of the act of George III., because, technically, the cotton was not beneath her own deck. Because the goods were on board a “lighter,” can make no difference between that case and ours, there being no such exception as to lighters, in the English act, as there is in section "7 .of our act. Morewood v. Pollock stands on the principle, that the act will not apply where the vessel is not engaged in actual transportation. In Hunter v. McGowan, 1 Bligh, 580, it was held, that the act of George III. did not apply to a lighter engaged in transporting merchandise upon the Clyde, between Glasgow and the sea, upon the same principle. (3.) As this act of Congress is drafted from the English act of George III., any variation in terms between the two is important. The English act excludes from its scope vessels solely employed in navigating rivers. Our act makes no distinction such as is suggested by the word solely. The omission of this word is significant, because our act is a copy of the English act. Constructively, it excludes vessels navigating, s'olely or partly, rivers. This

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vessel was used or employed in navigating the East River, a current wholly within the boundaries of this State. Obviously, this act has no application to vessels navigating the Mississippi, the St. Lawrence, the' Hudson, or any of the great rivers. Yet many of them are communicating lines between different States, or boundary lines of this country and a foreign State. And over all these rivers, the power of Congress to regulate commerce extends, and the jurisdiction of the federal courts, sitting in admiralty. The act has been applied to vessels navigating the great lakes, only because these waters, from their extent, from the vast commercial transactions upon them, and the community of interest of two nations in them, are oceans, and are not to be considered as inland waters (24 How. U. S. 1). The words, “used in rivers,” (section 7 of the act) are, of course, applied to vessels whose only carrying trade is upon, or through, rivers. The clear intention of the act, is to place our commercial marine on an even foothold with that of Great Britain. This intention is executed when the act is construed to apply to vessels engaged in navigating the ocean and the great lakes. When carried further, it becomes a mischievous and impertinent interference with the legislation and the judicial decisions of the several States. It counts for nothing, that appellants’ vessel plied 'between the ports of different States. This consideration would apply to vessels navigating the Mississippi river. Yet these are excluded from the operation of the act, by section 7. Therefore, the court was not in error, in deciding that this vessel was within section 7 of the act. Though the sound is not “inland water,” this vessel was used in river navigation.

II. (1.) The defendants, as common carriers, are presumed guilty of negligence, if property, within their possession, is destroyed by fire. It rests upon them to remove .this presumption (Forward v. Pittare,

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1 Term R. 27, 33 ; Murphy v. Stanton, 3 Munf. 239 ; Bell v. Reed, 4 Binn. 127 ; Colt v. McMeehen, 6 Johns. 160 ; Hall v. Cheney, 36 N. H. 27 ; The Emma Johnson, Sprague, 527 ; Hastings v. Pepper, 11 Pick. 41 , 43 ; Shackleford v. Wilcox, 9 La. 38 ; Whitesides v. Russell, 8 Watts & S. 44 ; The Huntress, Daveis C. Ct. 82 ; King v. Shepherd, 3 Story, 356 ; Davidson v. Graham, 2 Ohio St. 131 ; Clark v. Barnvell, 12 Hew. 272 ; Alden v. Pearson, 3 Gray, 342 ). (2.) This they did not do, nor offer to do. On the contrary, the court stopped the cross-examination of the witness of defendants. Their exception, therefore, at fol. 64, is valueless, because it was directed to a ruling of the court, wholly immaterial as to them. Ho offer had been made —no evidence submitted by them, on this question. (3.) The act, section 1, excludes, expressly, carriers by whose “ design or neglect” loss of property shall occur.

Joseph H. Choate, for defendants.

I. The act of Congress is plainly applicable to the case. Act of March 3, 1851, 9 Slat. 635 : “Ho owner or owners of any ship or vessel shall be subject or liable to answer for, or make good to any one or more persons, any loss or damage, which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to, or on board of the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners—Provided, that nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of shipowners.” The history of the act is well known. By the common law, common carriers being deemed to be insurers of the goods carried, unless lost by the act of God or the public enemy, were held liable for the loss of goods by fire,

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however caused. On the occasion of the loss of the Lexington by fire, in Long Island Sound a striking case arose; which demonstrated the extreme harshness of the law. That vessel being engaged in making regu-' lar trips from New York to Stonington, was totally destroyed on her trip from New York, by fire, and the liability of the owner for such loss, in the absence of an express agreement restricting the liability, was fully-declared by the supreme court of the United States (New Jersey Steam Navigation Co. ». Merchants Bank, 6 How. 344 ). This. decision, ,and the public attention which it excited, led to the passage of the act. Judge Nelson, who delivered the opinion in the case of the Lexington, said, in a later case (Moore v. American Transportation Co., 24 How. 38 ), “ The decision, in the case of the Lexington, which was burned on Long Island Sound, led to this act of 1851. That case was' decided in 1848, subjecting the carrier in case of loss by fire.” The Oceanus, and the goods of the plaintiff on board, are strictly within the spirit and meaning of the act. The goods were destroyed by fire, and it is clear, upon the evidence, that the fire was not caused by the design or neglect of the owner, or owners. The fire communicated to the vessel from a neighboring building, and in spite of all efforts to stay its progress, destroyed the vessel and cargo. In Walker v. Transportation Co., 3 Wall. 150 , the supreme court of the United States have made a careful exposition of the provisions of the act, and- go so far as to decide, that the act exempts owners, in case of fire, from liability, even for the negligence of their officers and agents, in which the owners have not directly participated, the liability of the owners being restricted in case of fire, to fires caused by their design or neglect, the burden of proving such design or neglect, fell upon the plaintiffs (New Jersey Steam Navigation Co. v. Merchants’ Bank, ut sup.). The court there said expressly, “ The'

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respondents having succeeded in restricting their liability as carriers, by the special agreement, the burden of proving that the loss was occasioned by want of due care, or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such restriction.” But however the burden lay in this case,. the refusal of the court to receive any evidence on the point, or to submit any question to the jury, would entitle the defendant to have the verdict s.et aside, and to a new trial, if the court should be of opinion that the question of negligence arose. As the proofs stand, the fire is shown to have arisen without design or neglect on the part of the defendants. If it is not so shown, they should have been permitted to show it, had the burden rested with them.

II. The case does not come within the exception of the seventh clause of the act. That clause is as follows: “ This act shall not apply to the owner or owners of any canal-boat, barge, or lighter, or to any vessel of any description whatever, used in rivers or’ inland navigation.” The construction of this clause, and the meaning of inland navigation, have been definitively settled by the supreme court, in Moore v. Transportation Co., 24 How. 1 ; and the term held not to apply to such waters as Long Island Sound, or to the great lakes. There the case was a loss by fire on Lake Erie, and the court lay great stress upon the history of the act already referred to, and, premising that it was designed to provide a remedy for such liability as was imposed in the case of the Lexington, employed in the navigation of Long Island Sound, draw from that the conclusion, that of course the exception not applying there, could not be deemed to apply to the still more extended waters and commerce of the lakes. That ca'se was very fully discussed and considered, and nothing can be .added to the wealth of the argument, or the clearness of the decision of the case as reported. The reason of'

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this rule applies equally to Long Island Sound, which is not inland, in any sense, but is an arm of the sea, a great highway of transatlantic commerce, as well as the medium of communication between different States. The voyage of the Oceanus was, from beginning to end, upon tide waters, and for forty miles or more—from Beaver Tail Light,, around Point Judith to Montauk Point—upon the open sea.

III. The interpretation of the United. States statutes by the supreme court of the United States, is of binding authority upon the courts of the several States.

This action was brought to recover the value of certain goods delivered by the plaintiffs at Providence, Rhode Island, to the defendants, as common carriers, to be transported by the latter on their steamer Oceanus, to the city of Hew York; and which goods were destroyed by fire together with the said vessel, while lying at a wharf in Hew York after the completion of the voyage, but before such goods were discharged or delivered to the consignees.

The defendants claimed that they were exempt from liability by the act of Congress of March 3, 1851 (9 Stat. at L. 635), which declares that “no owner or' owners of any ship or vessel shall be subject or liable to answer for or make good to any one person or persons, any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to or on board of the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners.” And, for the purpose of showing that the fire was not caused by their design or neglect, the defendants, upon the trial, presented evidence tending to prove that it was accidental, and was not caused by

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any fault or negligence on tlieir part. The court, however, stopped the cross-examination of the witness on that subject, upon the ground that the owners of the steamer were not exempted from liability for the loss by the act in question, inasmuch as such vessel, in the opinion of the court, was engaged in inland naviga tion,, and, for that reason, was such a vessel as was especially excluded" from the exemption by a further provision in the same statute, which is in the words following : “ This act shall not apply to the owner or owners of any canal-boat, barge, or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation.”

The court thereupon directed a verdict for the amount of the claim as proven, and further directed that the entry of the judgment be suspended, and the exceptions of the defendants heard at general term in the first instance.

The question as to what waters were included in the term “inland navigation,” was fully considered and •discussed by Judges Nelson and Catron in their opinions in the case of Moore v. Transportation Company, 2 How. U. S. Sup. Ct. 1, which was an action to recover the value of certain goods delivered to the defendants as common carriers by the plaintiff, for transportation across Lake Erie, and destroyed by an accidental fire during such transit. The principal question before the court was whether vessels navigating Lake Erie, were or were not to be considered as vessels engaged in “inland navigation,” within the meaning and intention of the statute. Judge Nelson, in delivering the prevailing opinion upon that question, stated that the immediate inducement to the passage of the act of 1851 by Co'ngress, was the then recent destruction by an accidental fire of the steamer Lexington with her cargo, upon Long Island, Sound, which entailed a ruinous loss upon the owners of the vessel,

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because of their liability as common carriers; and he assumed from that fact, as well as from the language of the act itself, that the. statutory exemption from liability was intended to apply to all vessels employed in navigating the sound; and, upon that assumption, he successfully reasoned, on comparison of the relative sizes of Lake Erie and Long Island Sound, the dangers of navigation upon each, the construction of their vessels, &c., that vessels running upon Lake Erie could not be considered as engaged in inland navigation, although its waters had no natural navigable connection with the sea, but were wholly interior or mediterranean. Judge Catkojt expressed the same opinion in regard to vessels navigating the sound, although he dissented from the ultimate conclusion of the court touching the waters of the great lakes. The judgment of the United States supreme court in that case, founded as it was upon the assumptions and reasoning above adverted to, must be considered as a decision by the highest appellate tribunal, in so far, at least, as concerns the construction of acts of Congress, that vessels employed in navigating Long Island Sound are not, because of that, vessels engaged in inland navigation.

It is true a voyage from Providence to Hew York embraces not only the sound, but a bay at the eastern end of the route and that portion or extension of the sound which is called. East River at its western terminus. It appears, too, from the evidence, that when the fire occurred, the steamer was lying at her pier on the Hudson River side, and, therefore, between the banks and on the water of that river. But those facts do not essentially change _ the question nor affect the result. For in the case above cited the court say, in effect, that a vessel constructed for ocean or coastwise navigation, and used for that purpose, does not come within the exceptions mentioned in the act, although

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portions of her trips may be upon bays or rivers, in the course of the same voyage. The court erred, therefore, in directing a verdict for the plaintiff.

The verdict should be set aside and a new trial ordered, with costs to abide the event.

Cases cited

Colt v. M'Mechen 6 Johns. 160 N.Y. Sup. Ct. p. 374
New Jersey Steam Navigation Co. v. Merchants' Bank 6 How. 344 SCOTUS p. 375
Walker v. Transportation Co. 3 Wall. 150 SCOTUS p. 375
Moore v. American Transportation Co. 24 How. 1 SCOTUS p. 376