# Constable v. National Steamship Company

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## Dissenting Opinion

    Jackson
United States Supreme Court
154 U.S. 51
Constable v. National Steamship Company
This was a libel in admiralty by the firm of Arnold, Constable & Co. against the National Steamship Company, owner of the British steamship Egypt, to recover the value of 36 cases of merchandise carried by this steamer from Liverpool to New York, delivered on the pier of the Inman Steamship Company on January 31, 1883, and upon the same night destroyed by fire through the alleged negligence of the respondent. The answer admitted most of the material allegations of the libel, but denied all charges of negligence, and also of liability for the loss of the merchandise. Upon a hearing upon pleadings and proofs in the district court, the libel was dismissed (29 Fed. 184), and, upon appeal to the circuit court, the decree was affirmed. Libelants thereupon appealed to this court.
The following is an abstract of the facts found by the circuit court, so far as the same are material to the questions involved:
'(2) The Egypt was one of a line of steamers owned by the respondent, and plying regularly between Liverpool and New York as common carriers. The steamers of this line arrived as often as from three to eight times per month.
'(3) Respondent has run a line of such steamers for over twenty years, and during that time has docked them at a dozen different piers in the city of New York. From 1872 to 1878 it leased the pier No. 36 (old No. 44), North river, and usually docked its vessels there. Subsequently it leased pier No. 39, North river, about six hundred feet north of pier No. 36, and has since usually docked its vessels there, and not elsewhere. The piers between Nos. 35 and 41, North river (excluding pier No. 37) were, in 1883, all used by regular English steamship lines. These lines usually dock at their own piers, but not always, and, in case of any emergency, dock elsewhere, and permit each other, when the necessity arises, to use the exclusive dock of each.
'(4) That said goods were shipped at the port of Liverpool on board the Egypt, and were consigned to the libelants at New York under a bill of lading, the material portions of which are cited in the opinion. (A copy is also given in the margin.) The Egypt also carried as a considerable portion of her cargo goods shipped by the Inman Company, which had given respondent the option of discharging at its pier, No. 36.
'(5) The Egypt arrived on January 31, 1883, and was entered at the customhouse at 1:45 o'clock in the afternoon.' '(7) For a month or more respondent had been blocked at its own pier, No. 39, in consequence of heavy cargoes, delays of its vessels by westerly winds and ice in the slips, and had been obliged in consequence to discharge two of its vesels at outside uncovered piers.
'(8) Respondent's manager had arranged to send the Holland, another ship of respondent's line, and due before the Egypt, to its own pier, No. 39, and to send the Egypt to the Inman pier, No. 36. This arrangement was carried out,-the Holland sent to No. 39, and the Egypt to No. 36, there being no room for her at No. 39.
'(9) Steamers of regular lines, on their arrival at New York, if their docks are blocked, are not kept in the stream longer than to enable them to get berthed elsewhere. If kept in the stream, the consignees make great complaint. It was more costly to dock the Egypt at No. 36, but this was done to secure to the consignees a more prompt discharge and delivery of their goods.
'(10) That the Egypt began at about 4:30 o'clock in the evening of said 31st of January, 1883, to discharge her cargo upon the dock, and the thirty-six cases of merchandise belonging to the libelants were landed and discharged there prior to the fire.
'(11) Upon the entry at the customhouse of the Egypt, there was granted by the collector of customs a general order to unload the steamer, and to send packages to the public store. An application was also immediately made to the collector to allow the unpermitted cargo to remain upon the wharf for forty-eight hours from the time of the granting of the general order. This application was in the following form:
"To W. H. Robertson, Esq., Collector of Customs:
"Request is hereby made to allow the cargo of the steamer Egypt, Summer, from Liverpool, England, unladen, but not permitted to remain upon the wharf for forty-eight hours from the time of granting general order, at the sole risk of the owners of said steamer, who will pay to the consignee or owner the value of the such cargo, respectively, as may be stolen, burned, or otherwise lost, and who will also pay all duties which may be in any way lost by so remaining.
"F. J. W. Hurst, Owner,
"Per J. C. Ryor, Attorney.'
'Such application was in the form required by the collector, without which permit would not be granted, and the entire cargo would be sent to public store. A permit was granted by the collector upon this application. A special license was also granted to unload the steamship after sunset, and a bond in $20,000 was given for such license, as required by law.
'(12) The general order above stated, the special license, the applications and permits, and the agreements and engagements therein contained, were the usual and customary ones ordinarily made and granted in such cases, and were made under and by the authority in the bill of lading conferred upon the respondent and upon the collector of the port, and in accordance with the provisions of law and the regulations of the treasury department in that behalf.
'(14) Under these several orders and permits, a portion of the cargo of the Egypt, including libelants' merchandise, was discharged and landed upon the Inman dock, where the same was destroyed by fire about two o'clock the next morning. That said cargo, including said merchandise belonging to libelants, was, at the time of its destruction aforesaid, in the possession of the respondent, and had never been taken into the possession of the collector of the said port of New York. That said fire broke out without any imputed negligence, and that by it the steamer was also somewhat burned.
'(15) That between the arrival of the steamer and the destruction of the merchandise there was not sufficient time in which to enter libelants' goods at the customhouse, pay the duties thereon, and obtain the requisite permits for the removal of the same. That, in fact, no duties were paid upon libelants' goods, and no permits obtained prior to the destruction of the goods by fire. That said goods were, at the time of their destruction, 'unpermitted' goods.
'(16) That, upon obtaining the permits referred to, the respondent's customhouse broker caused a notice of the time and place of discharge to be posted on the bulletin board of the customhouse. It is usual to so post such notices. It is not usual to publish them in the newspapers.
'(17) No notice was ever sent to or received by the libelants, nor did they have any actual knowledge of the readiness to discharge, or of the time or place of discharge, of the Egypt, upon her arrival.
'(18) Libelants never knew that the merchandise had been landed and deposited upon the Inman dock, and never had an opportunity of removing such merchandise.'
The other facts, so far as they are material, are stated in the opinion of the court.
Upon such facts the circuit court found, as conclusions of law, that respondent had the right to dock and discharge the Egypt at the Inman pier; that it was exempt from liability for the goods destroyed by fire on such pier; and that there was, by reason of the application to the collector to allow the unpermitted cargo to remain on the wharf, no valid agreement or binding obligation to pay the libelants the value of the goods burned.
Joseph H. Choate, W. V. Rowe, and Treadwell Cleveland, for appellants.
John Chetwood and Jas. C. Carter, for appellee.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

* ↑ Copy of Bill of Lading.
National Steamship Company, Limited.
Head Office, 21 Water street, Liverpool; New York Office, 69 Broadway.
Liverpool to New York every Wednesday.
[Stamp, six pence.]
Shipped in good order and well conditioned, by Moore & Pringle, in and upon the steamship called the Egypt, whereof _____ _____ is master for the
present voyage, or whoever else may go as master in the said ship, and now lying in the port of Liverpool and bound for New York via Queenstown, with liberty to sail with or without pilots, and to tow and assist vessels in all situations and to all ports—
Forty-three cases merchandise, (linens and cotons,) three cases and five bales (carpets and Dundees) being marked and numbered as in the margin, and to be delivered subject to the following exceptions and conditions, viz.: The act of God, the Queen's enemies, pirates, robbers, thieves by land or at sea, barratry of master or mariners, restraint of princes, rulers, or peoples, loss or damage resulting from vermin, rust, sweating, wastage, leakage, breakage, or from rain, spray, coal, or coal dust, insufficiency of strength of packages, inaccuracy, indistinctness, illegibility or obliteration of marks, numbers, brands, or addresses, or descriptions of goods, injury to wrappers, however caused, or from corruption, frost, decay, stowage, or contact with or smell or evaporation from other goods, or from loss or damage caused by heavy weather or pitching or rolling of the vessel, or from inherent deterioration, risk of lighterage to or from the vessel, transshipment, jettison, explosion, spontaneous combustion, fire before loading in the ship or after unloading, heat, boilers, steam, or steam machinery, including consequences of defects therein or damages thereto, collision, stranding, straining, or other perils of the seas, rivers, steam and steam navigation or land transit of whatsoever nature or kind, and all damage, loss, or injury arising from the perils or matters above mentioned, and whether such perils or matters arise from negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, or other persons in the service of the ship owner. Not accountable for weight, contents, value, length, measure, or quantities or condition of contents, nor for money, documents, gold, silver, bullion, specie, precious metals, jewelry, precious stones, or other highly-valued goods, or beyond the amount of one hundred pounds sterling for any one package, unless bills of lading are signed therefor and the value therein expressed and freight paid accordingly. The National Steamship Company (Limited) or its agents or any of servants are not to be liable for any damage to any goods which is capable of being covered by insurance, nor for any claim, notice of which is not given before the removal of the goods, nor for any claims for loss, damage, or detention to goods under through bill of lading where the loss or detention occurs or damage is done whilst the goods are not actually in the possession of the National Steamship Company (Limited) or shipped on board the National Steamship Company's (Limited) steamer, nor in any case for more than known or invoiced value of the goods, whichever shall be least. Goods of an inflammable, explosive, or otherwise dangerous character, shipped without permission and full disclosure of their nature and con-
tents, may be seized and confiscated or destroyed by the ship owner at any time before delivery without any compensation to the shipper or consignee. In case any part of the within goods cannot be found for delivery during the vessel's stay at the port of destination they are, when found, to be sent back by first steamer at ship's expense, the steamer not to be held liable for any claim for delay or sea risk.
The only condition upon which glass will be carried is that the ship owner shall not be held liable for any breakage which may occur from negligence or any other cause whatever.
The goods to be taken from alongside by the consignee immediately the vessel is ready to discharge or otherwise they will be landed by the master and deposited at the expense of the consignee and at his risk of fire, loss, or injury in the warehouse provided for that purpose or in the public store, as the collector of the port of New York shall direct, and when deposited in the warehouse or store to be subject to storage the collector of the port being hereby authorized to grant a general order for discharge immediately after entry of the ship.
The United States treasury having given permission for goods to remain forty-eight hours on wharf at New York, any goods so left by consignee will be at his or their risk of fire, loss, or injury.
In the event of the said steamer being prevented from any cause from commencing or pursuing this voyage or putting back to Liverpool or into any port, or otherwise being prevented from any cause from proceeding in the ordinary course of her voyage, to have liberty to transship the goods by any other steamer to call at any port or ports.
All fines, expenses, losses, or damage which the ship or cargo may incur or suffer on account of incorrect or insufficient marking of the packages or description of their contents shall be paid by the shippers or consignee, as may be required, and the ship owner shall have a lien upon the goods for the payment hereof.
In the case of all goods at through rates to the interior of the United States or Canada the shipper or consignee engages to supply the agent of the steamer of Net York (F. W. J. Hurst) with the necessary papers for passing the goods through the customhouse by the time of steamer's arrival or to pay all extra expense incurred in default thereof.
Should any existing or future order or restriction of the English emigration commissioners or of the English board of trade authorities prevent the above goods from being conveyed in any passenger vessel the National Steamship Company (Limited) or any of its servants or agents are to be free of any liability for nonfulfillment of their portion of this contract. In accepting this bill of lading the shipper or other agent of the owner of the property carried expressly accepts and agrees to all its stipulations, exceptions, and conditions (whether written or printed) in the like good
order and well-conditioned from the ship's tackle, (where the ship's responsibility shall cease,) at the aforesaid port of New York, unto Messrs. Arnold, Constable & Co. or to his or their assigns. Freight and primage for the said goods to be paid at New York as per margin. General average, if any, payable according to York and Antwerp rules. Freight, if payable in Liverpool, to be paid on delivery of the bills of lading in cash, without deduction, vessels lost or not lost. Freight, if payable abroad, to be paid in currency or gold (at the current rate of exchange for banker's sight bills on the day of the steamer's arrival,) at consignee's option and before delivery of any portion of the goods specified.
In witness whereof the master or agent of the said ship hath affirmed to two bills of lading, exclusive of the master's copy, all of this tenor and date, one of which bills being accomplished the other to stand void
A. Titherington.
Dated in Liverpool, 18 January, 1883.
(In the margin of the bill of lading appear the numbers of the various packages of merchandise.)
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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