[February, Opinion of the Court--Hoffman, J. sions of the master. Some of them do not hesitate to express the opinion that the greater part of the damage was caused by insufficiency of dunnage. That the effect of a want of dunnage would be to expose the cargo to injury from water running down the sides and also to increase the damage from water which might collect in the hold, was abundantly proved and is obvious without proof. The very object for which dunnage is used is to protect the cargo from injury by being wetted. That the cargo would have sustained, even if properly dunnaged, some injury from the unavoidable effect of sea perils encountered by the vessel, and her consequent leaking, must be admitted. But what would have been the extent of that injury, and how much of the damage is to be attributed to each cause, it is impossible now to ascertain. The question thus arises: Is the carrier liable to make good the whole damage sustained, when the proofs show that part of it was occasioned by a cause for which he was not responsible, and part was caused by his own negligence, but he is unable to show how much was due to either cause separately? To exonerate a carrier, prima facie, from the liability assumed by him under his bill of lading, it will be sufficient to show that the immediate cause of the injury was a peril of the seas, or other cause for which he is not responsible. But after this proof has been given, it is competent for the shipper to show that the loss might have been avoided by reasonable skill and diligence, in other words, that the loss would not have occurred except for the carrier's negligence. (Clark v. Bamwall, 12 How. 280.) In such cases it has been held that the inquiry is, did the want of skill of the master and crew contribute in any degree to the loss? And that the carrier must show, not that the loss might have happened if the act complained of had not been done, but that it must have happened. Thus when the immediate cause of the loss was the sudden and unexpected rising of a river to an unprecedented height, and it appeared that if the goods had been forwarded without unreasonable delay they would not have been ex Opinion of the Court--Hoffman, J. 1871.] * * * * * posed to the danger, it was held that this negligence of the carrier rendered him liable for a loss of which the immediate cause was a vis major. In Williams v. Grant, 1 Conn. 487, the Court says: "And in cases of this description carriers may be liable for a loss arising from inevitable necessity existing at the time of the loss, if they have been guilty of a previous negligence or misconduct by which the loss may have been occasioned It is a condition precedent to the exoneration of carriers that they should have been in no default, or, in other words, that the goods of the shipper should not have been exposed to the peril, or accident, which occasioned the loss by their own misconduct, negligence, or ignorance. For though the immediate or proximate cause of the loss may have been what is termed act of God, or inevitable accident, yet, if the carrier unnecessarily exposes the property to such accident, by any culpable act or omission of his own, he is not excused." (Per Gould, J., 1 Conn. 487.) It is evident, therefore, that in this case the carrier is liable for all injuries which, though immediately caused by a peril of the sea, would not have occurred had not his own negligence contributed to produce the injurious result. The bad stowage of the cargo was, as to this damage not the causa causans but the causa sine qua non and for the effect of this cause he is liable. The real difficulty in the case arises from the fact which, however, is not conclusively established, that the cargo would have sustained some damage even if it had been properly stowed; but how much cannot be known. We are thus forced to choose between two alternatives, either to hold the carrier responsible for damages, a part of which he is not accountable for, or else to deny to the shipper any compensation for losses, which, in great part, was caused by the carrier's fault. The former alternative must, in my opinion, be adopted. By his contract, the carrier promised to deliver the goods. in like good order and condition as when received, unless prevented from so doing by one of the excepted perils. The cargo being found to be damaged, the burden of proof Opinion of the Court--Hoffman, J. [February, 1871. was on him to show that the loss was occasioned by one of the causes which, by law and the terms of his contract, afford an excuse for its non-performance. It is not enough that he show that a part of the damage was so caused, while the remainder was caused by his own negligence. To excuse himself for that portion of the loss for which he is not liable, he must show how much that portion is; and, unable to exonerate himself in toto, he should establish the degree and extent of the exoneration to which he is entitled. If he fails to do this, it seems to me that he must be held responsible for the whole damage. If these views are correct, it is unnecessary to consider how far the master was in fault by neglecting to open his hatches, and attempt to dry and ventilate the cargo while the ship lay at Falmouth, or during his subsequent voyage. The master, during the voyage, is undoubtedly bound to take all possible care of the cargo, and "he is responsible," says Mr. Ch. Kent, "for every injury which might have been prevented by human foresight, and prudence, and competent naval skill." (3 Kent's Comm. p. 213; 1 Pars. Shep. and Adm. 262; 12 How. 280; The Brig Gentleman, Olcott R. 118.) Something must, however, be left to the master's discretion and sound judgment; and, in the present case, the evidence hardly justifies the conclusion that the practice of taking off hatches in fair weather on a voyage from Europe or the Eastern ports is so universal, safe and proper a means of ventilating the cargo, as to make the ship responsible, when it is not done, for all the damage by sweat sustained by the cargo, especially when it is apparent that that damage could have been only partially prevented, and, perhaps, to a very inconsiderable degree by any such precautions. With respect to the duty of taking off the hatches at Falmouth, the case is stronger, but the conclusion arrived at, in regard to the liability for the negligent stowage, renders the decision of the point unnecessary. The damages proved by Morris Speyer are. ... $14,682.56 By Eggers & Co..... 1,862.19 April, 1871.J Opinion of the Court--Hoffman, J. It is possible, however, that some of these amounts may be slightly erroneous. If so, I am ready to correct them if the error be pointed out. CHARLES HARLEY ET AL. v. WILLIAM GAWLEY ET AL. DISTRICT COURT, DISTRICT OF CALIFORNIA. 1. MISCONDUCT FORFEITS RIGHT TO SALVAGE.-Where, by the law of the State, it was provided that any person who shall take away any goods from any stranded vessel, or any goods cast by the sea upon the land, or found in any bay or creek, and shall not within four days deliver them to the sheriff, etc., shall be guilty of a misdemeanor, etc., etc.; and the libellant having recovered an anchor and chain which had been lost in the Bay of San Francisco, and failed to deliver them to the sheriff, or to libel the same for salvage; but sold the anchor and appropriated its proceeds, and the anchor was subsequently surrendered by the purchaser to the owner, who also recovered the chain from the salvor; and the latter filed his libel in personam to recover a salvage compensation; held, that he had by his misconduct forfeited all right to a salvage compensation. Before HOFFMAN, District Judge. The facts sufficiently appear in the opinion of the Court. McAllisters & Bergin, for libellants. Milton Andros, for respondents. HOFFMAN, J.: This was a libel for salvage. It appears that the master of the bark Tidal Wave, having lost his anchor in the bay, employed the libellant to search for and recover it; for which service, if successful, he was to receive $140. An expedition was accordingly fitted out at considerable expense, and, after some three weeks' search, the anchor and chain were recovered. They were found, however, as the libelant states, a mile and a half from the place where Opinion of the Court-Hoffman, J. [April, he had been informed they had been lost, and the anchor was so covered with long grass as to make him suppose it had been in the water a much longer time than the five or six weeks which had elapsed since the loss of the Tidal Wave's anchor. The chain was taken to the junk-shop of the libellant, and the anchor was left in an open space at the corner of Market and California streets, where it lay for two months; when it, together with the chain and all the other anchors and chains in libellant's possession, was sold. Before, however, the purchaser had taken possession of the anchor, it had been removed by the respondent, who claimed it to be his. The libellant testifies that he did not know to whom the anchor belonged. He subsequently acquiesced in the respondent's claim of property, and restored to him the chain, which had been delivered to the purchaser. He now brings this suit to recover salvage compensation. This claim is resisted on the ground that the salvors have lost all right to their reward, by converting the property to their own use, and by omitting to proceed against it in court and submit their claims to its adjudication, and by omitting to deliver it to the sheriff, as required by 25 of the act of the legislature of this State, approved April 10, 1850. That section is as follows: "Every person who shall take away any goods from any stranded vessel, or any goods cast by the sea upon the land, or found in any bay or creek; or shall knowingly have in his possession any goods so taken or found, and shall not deliver the same to the sheriff of the county, where the same shall have been found, within four days after the same shall have been taken by him, or have come into his possession, shall forfeit treble the value of the goods so taken or found, and shall be deemed guilty of a misdemeanour punishable by fine and imprisonment, ctc." It is contended on the part of the libellant that this section only applies to "wrecks of the sea" strictly so called, i.e., property cast upon the shore, and not to goods found on the bottom of a bay or river, wholly submerged in the water. |