The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-12-25
Liability Of ShipOwners for Damage
Done to Il Cargo by Rats.
UNITED STATES DISTRICT COURT
Before Hon. Judge Shipman.


Before Hon. Judge Shipman
VIM. u. KbIioad ct al rs the bark Fine fc-snpxAy
JThis libel seeks to damages for injuries TO
cargo Of coffee transported In the bark Fame from Rio
Janero 10 the of New York From the evidence be-
fore the sor II appears that tho cargo considerably
damaged on the passage The answer alleges that this
damage occurred from any for which the bark
her responsible but solely from sthe dan
gers and accidents Of he sss and navigation, in which
terms, the exception in the bill Of lading cxemps tho
carriers from all liability 1t Is clear from the evidence
that portion Of the injury caused by gnawing
the packages This fact anticipated by the answer
the latter alleges that due was exercised two
cats being kept board from the time the coffee was
laden At Rio until II discharged at New York The
claimants insist that having exercised due and dill
gence the injury by rats is within tho exceptions OF the
bill Of adng, and Is to be deemed Of the dangers or
accidents Of the seas and navigation" On the other
band, the hbellants maintain, rs matter Of
law, that damage to cargo by being guawed
by rats is not peril Of tho within the
meaning Of that term the terms used in
this bill adg and that therefore, the claimants cannot
exempt themselves from liability by showing thas the
took certain precautions prevent it, This question OF
the liability Of ship damage done cargo by
rats been tho subject of repeated decisions by
Courts has been often discussed by elementary wr
,ers. Opinions have not been unfor regard TO what
should the rule The oldest which has been gone
rally reled all is that Of Tale vs.. Hall Il Wilson r.
p 2s1). That was an action in the Kings Bench, ON a
contract carry Mr. Justice Burnett, tho trial ad
m,ted evidence to show that rats had gnawed hole
through the bottom Of tho vessel by Of which tho
damage occurred. verdict given for the defend
ant and motion for trial the verdict was set
aside ee ch u, remarking that tho ruling below was
clearly wrong. In this the whole Court concurred BY
the report Of tho case, it appears that the Judge
who tried the in doubt To the admissblny of
the evidence This decided in 1850 In the case
Of Hunter Potts q Campbell, 2O3), decided in 1850
Lord Peterborough held in nisi prius trial, that Il
loss arising from rats eating holes in the ships
bottom not within the pers insured against in the
common form Of policy Of insurance. or course he
held ii not peril OF the But very English
ease, Iaveron vs. Drury &c Eng. Law and Eq. Rep,
5lo) fully sustans the claim of the lbeants in this
case. there held that cargo of cheese having
been damaged by rats the injury could not DO attributed
peril OF the that IL "a kind Of destruction
peculiar to the navigation, arising directly
from 1t, but one TO which such commodity cheese is
equally liable in warehouse on land in ship at sea-.
The Court held that the presence Of cats board is
alleged IN the present answer, defence II Is
that Judge story states that the Continental writers on
maritime law, maintain different doctrine although lie
says the English law holds the ship Liable But do
understand him endorsing the doctrine OF the foreign
writer's although he does not expressly dissent from H.
In this country there two which in conflict
with the English rul,-carrgues Coke, / Bin.
the former case, Angel, in his work the Law Of
Carriers, remarks-But this has been considered and
As to the Of Aymar Asor the reasoning of the
Court this point does not appear to be wholly consist
cDt with either doctrine and consequently Is sometimes
cited supporting the English rule and sometimes as
conflict with it, The learned libellants in the
under consideration has cited In support of his claim
but agree with the counsel for the claimants that 1t has
such effect On the trial in the court below the udgc
charged the jury that damage by rats not peril Of
the and therefore not within that exception in the
bill Of adng 10 this part Of the charge exception
taken, and the hearing Of the writ Of judgment
was reversed Savage, CHI j. said in giving the opinion
court concurred The true question TO be submitted
the Jury was whether the master had used ordinary care
diligence carrying the goods in question; whether
cat is Insufficient against rats or whether smoking the
vessel is the proper or more ecacous remedy against
this evil is proper consideration for tho jury" This
Wow Of tho court must have proceeded upon
the idea that damage by rats peril Of
the against which the master and not
Obliged the cargo hill hazards and therefore,
came within the exceptions in the bill OF adng This |
Of course would let in the proof and if the fact that
binary aud diligence were used proved il would
excuse the ship. or course, TOO, without this and
diligence the EXTREMIST perils of the could not
loss. RI ship destroyed by tornado, or
engrphed by the nacsrom, unless ordinary diligence TO
prevent il shown, the loss would be peril Of
The sea within the meaning Of the law The result to
which tho Court in this Of Aymar VS.. Astor
logical deduction from the principle which they
sumed, that the master of vessel mot responsible
like common carrier for all losses except they happen
by the Of God the enemies OF tho country UNI
dcrstand that this principle has been distinctly
ruled (Sewen vs. Allen 2 Wendell, 327; Angel On law
Of Carriers section 50 and section no. note Greenleafs
Overruled Cases, revised edition 1866, page 49, After
a careful examination Of the autorities, inclined
adopt the conclusion Of Chancellor Kent who after re-
marking that IL evoked question, upon which
the authorities are much divided" says:-"The
better opinion would, however, to be that the
not liable for this sort Of damage because
from the neg gence Of the common carrier and
may be prevented with due care, is within the
troll Of human prudence and sagacity." % Kens Com,
300 30l) This conclusion has since been strengthened
by the case of Lavcroni " Drury already cited. But
whatever may be the conclusion by the autho
rites do think the Of the Fame has proven
due diligence on his part The witnesses offered by the
claimants consisting Of several shpmasters who carry
similar cargocs from Rio, state that it is very bad port
for rats The master Of tho Fame himself testies that
IL the port for rats that he has visited and
thas he always has or less board. Yet he ad
ns that he did not the efficient precaution Of fum
g.tng his vessel Kxngng the danger, he admits he
did. think common Edence would have led to the use
OF every known meaS OF Riding the vessel Of the
MN Let decree BIO entered for tho libcauts, with
order OF rce cnce and let the Comm So oncr in his re-
port carei lily distinguish the various kinds of damage to
tho aud the cauuaa nf