# The Caledonia

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## Dissenting Opinion

    Brown
United States Supreme Court
157 U.S. 124
The Caledonia
This was a libel in admiralty by a shipper of cattle against the steamship Caledonia to recover damages caused by the breaking of her shaft. The district court decreed in favor of libelant (50 Fed. 567), and claimants appealed. The circuit court found the following facts and conclusions of law:
'This was a libel in admiralty, in a cause of contract, civil and maritime, by a shipper of cattle against the steamship Caledonia, to recover damages caused by the breaking of her shaft.
'The Caledonia was one of the Anchor Line of transatlantic steamships, woned and employed by the claimants, Henderson Brothers, as common carriers. The plaintiff was a dealer in and exporter of cattle.
'The terms of the contract between the parties were as expressed in the following memorandum of agreement, made before the shipment of the cattle, and in the following bill of lading, signed at the time of shipment, and afterwards accepted by the libelant:
'Memorandum of Agreement
"Concluded at New York, the twenty-fifth day of May, 1885, between Messrs. Henderson Brothers, 7 Bowling Green, New York, agents of the steamer Caledonia, hereinafter described as 'the party of the first part,' and Mr. M. Goldsmith of New York, hereinafter described as 'the shipper,' of the second part.
"The agents of the steamer agree to let to said shipper suitable space, as under noted, for the transportation of live cattle; that is to say, on the steamship Caledonia, for about two hundred and seventy-five to three hundred head of cattle on and under decks. Steamer expected to sail from Boston for London about eleventh of June. The agents agree to fit the stalls in the style customary at the port of Boston, to the satisfaction of inspectors of Boston insurance companies and the shipper, who will assume all responsibility of same, and for various appliances of ventilation, after shipment of the cattle; and the steamer Caledonia undertakes to supply sufficient good condensed water for the use of the animals during the voyage. All water casks, buckets, hose, and similar appliances must be put on board by shipper of the cattle.
"A reasonable supply of fodder for the animals will be carried by the steamship Caledonia free of freight; but freight, if demanded, shall be payable on any unusual excess of fodder landed at port of destination. Hay and straw to be in compressed bales.
"The steamer Caledonia will also furnish free steerage passage for attendants (not exceeding one man to every thirty cattle) over and return, providing them with the necessary utensils for the voyage.
"The agents of the steamer agree to notify the said shipper, at least six days in advance, of the intended departure of the steamship, and, twelve hours prior to sailing, of the day and hour. In event of shipper failing to deliver the cattle to steamship within twenty-four hours after expiry of due notice as aforementioned, steamer is to have liberty to sail, and freight is to be paid in full by the party of the second part.
"The steamer Caledonia agrees to deliver the cattle at Deptford, and the shipper agrees to bear tonnage, dock, or shed dues when incurred. The cattle are to be delivere and received from steamship's decks immediately on arrival at the port of destination.
"The shipper agrees to ship all the cattle the steamship can carry as above mentioned. paying freight on same at the rate of forty-five shillings British sterling per bullock for all cattle shipped.
"The shipper agrees to prepay freight on the above-mentioned shipments in current funds at first-class bankers, selling rate for sight exchange, on the number of cattle shipped at Boston, vessel lost or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality or accident, however caused, throughout the voyage.
"The shipper agrees to deliver the cattle on the date and hour ordered by the agents of the steamer, or pay demurrage of the steamship for all, or any detention incurred by his failure to do so.
"In case of nonarrival of vessel in time to sail from Boston on or before 18th June, shipper has option of cancellation. Any dispute arising on this contract to be settled by arbitration in the usual way in Boston.
"Henderson Brothers.'
"Cattle Bill of Lading.
"Shipped alive, by M. Goldsmith, and at shipper's risk, in and upon the steamship called the Caledonia, now lying in the port of Boston, and bound for London, two hundred and seventy-four head live cattle, to be delivered from the ship's deck at the aforesaid port of London; the act of God, the Queen's enemies, pirates, restraint of princes and rulers, perils of the seas, rivers, navigation and land transit, of whatever nature or kind, restrictions at port of discharge, loss or damage from delays, collision, straining, explosion, heat, fire, steam boilers, and machinery, or defects therein, transshipment, escape, accidents, suffocation, mortality, disease or deterioration in value, negligence, default, or error in judgment of pilots, master, mariners, engineers, stevedores, or any other person in the employ of the steamship or of the owners or their agents, excepted; with liberty to sail with or without pilots, to tow and assist vessels in all situations, to call at any port or ports to receive fuel, load or discharge cargo, or for any other purpose; and, in the event of the steamship's putting back to Boston or into any other port, or being prevented from any cause from proceeding in the ordinary course of her voyage, to transship by any other steamer unto order, or to his or their assigns.
"Freight for the said stock to be paid without any allowance of credit or discount, at the rate of 250 sterling for each animal shipped on deck, and 250 sterling for each animal shipped under deck, whether delivered or not, vessel lost or not lost, cattle jettisoned in all or in part, or otherwise lost, with average accustomed. In the event of the loss of the vessel, of her not arriving at the said port, or of the consignee neglecting to pay the freight upon the arrival of the vessel, or neglecting to pay the charges and expenses herein mentioned, the shipper, in consideration of the waiving of the payment of the freight in advance, hereby binds and obligates himself to pay the freight above expressed, and such charges and expenses upon demand.
"It is also stipulated and agreed by the shipper, as a condition of the shipment, that he will take charge of the stock during the voyage, the vessel furnishing water only; that he has examined the condition of the steamer, the construction of the stalls, and the means of ventilation, and approved of the same, and that no claim shall be made for any loss or damage resulting therefrom; that any mortality, sickness, or deterioration in the condition of the stock shall be presumed to arise from the condition of the animals when shipped, or from natural causes.
"Consignees to enter the property at the sustom house within twenty-four hours after the ship is reported there, and to remove the same immediately upon being landed; otherwise the property may be discharged by the agents of the ship at the expense and risk of the shipper or c nsignee of cargo. Porterage of the delivery of the cargo to be done by agents of the ship, at the expense and risk of the receivers. Lighterage, tonnage and shed dues payable by the receivers. This bill of lading, duly indorsed, to be given up to the ship agents, in exchange for delivery order.
"In witness whereof the master, purser, or agents of the said ship hath affirmed to three bills of lading, all of this tenor and date, one of which bills being accomplished, the others to stand void.
"In accepting this bill of lading, the shipper, as owner, or agent of the owner, of the property shipped, expressly accepts and agrees to all its stipulations, exceptions, and conditions, whether written or printed.
"Dated in Boston, Mass., 15th June, 1885.
"J. Miller Stewart,
"For the Agents.'
'On Monday, June 15, 1885, the libelant shipped on board the Caledonia, at Boston, to be delivered at Deptford, two hundred and seventy-four head of cattle in good order and condition; and put on board fodder sufficient for a voyage of fifteen days (a day or two more than the usual length of voyage), being all the fodder that by the usage of the business he was bound to provide. On the morning of June 24th the ninth day out from Boston, in smooth weather, the propeller shaft of the Caledonia broke straight across in the stem tube. There had been no heavy weather on this voyage, and the propeller did not strike against any rock or derelict or other object. The cause of the breaking of the shaft was its having been weakened by meeting with extraordinarily heavy seas on previous voyages. At the time of leaving Boston, on June 15th, the shaft was in fact unfit for the voyage, and by reason of its unfitness the vessel was unseaworthy. No defect in the shaft was visible or could have been detected by the usual and reasonable means, if the shaft had been taken out and examined. No negligence on the part of the owners of the steamship was proved.
'By reason of the breaking of the shaft, the voyage lasted twenty-five days, and the cattle were put on shour allowance of food, and in consequence thereof were landed at Deptford in the afternoon of Monday, July 20th, in an emaciated condition.
'The market days in London were Mondays and Thursdays. By the usual course of the business of shipping live cattle from Boston to Deptford for the London market, and in accordance with the knowledge and contemplation of both parties at the time of the execution of the memorandum of agreement and the bill of lading, the cattle were not to be sold before arrival, and were sold at the first market after their arrival.
'The amount of the damages suffered by the libelant was as stated in the following agreement, signed and filed by the counsel of the parties:
"It is hereby agreed that the whole amount of damages suffered by the libelant (exclusive of interest) arose from two sources of loss: Shrinkage in the weight of cattle from the protracted voyage, and fall in the market value of the cattle during the delay in arrival; and that these two causes together made the loss seven thousand eight hundred and fifty dollars, and that onehalf thereof, to wit, three thousand nine hundred and twenty-five dollars, was and is to be attributed to each cause.'
'Conclusions of Law.
'There was a warranty that the vessel was seaworthy at the time of sailing from Boston. This warranty was not affected by the exceptions in the bill of lading. The breach of the warranty was the cause of all the damage claimed. The libelant is entitled to recover $7,850 and interest.'
The circuit court thereupon entered a final decree for the sum so found together with interest and costs. The opinion is reported in 43 Fed. 681. Claimants appealed to this court.
George Putnam, for appellants.
Henry M. Rogers, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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