U.S. Supreme Court

OCEANIC STEAM NAV. CO. v. AITKEN, 196 U.S. 589 (1905)

196 U.S. 589

OCEANIC STEAM NAVIGATION COMPANY (Limited), Claimant of the Steamship 'Germanic,' etc., Petitioner,v.

JOHN W. AITKEN et al. and The Insurance Company of North America et al.

No. 128.

Argued January 13, 16, 1905.

Decided February 20, 1905.

Messrs.Everett P. Wheeler, and Wheeler, Cortis, & Haight for petitioner.

Messrs.Wilhelmus Mynderse, Walter F. Taylor, Edmund L. Baylies, and Butler, Notman, & Mynderse for respondents.

Mr. Justice Holmes delivered the opinion of the court:

This writ of certiorari brings up the record of two cases which were tried together upon libels filed by cargo owners and underwriters to recover for water damage done to goods on board the steamship Germanic. 107 Fed. 294, 59 C. C. A. 521, 124 Fed. 1. The steamer reached her pier in New York at about noon, Saturday, February 11, 1899. She was heavily coated with ice, estimated by the courts below at not less than 213 tons, and this weight was increased by a heavy fall of snow after her arrival. She was thirty-six hours late, and, in order to sail at her regular time on the following Wednesday, began to discharge cargo from all of her five hatches at once. At the same time she was taking in coal from coal barges on both sides, to that end being breasted off from the dock 25 or 30 feet on her port side. At about 4 p. m. on Monday, February 13, she had discharged about 1,370 out of her 1,650 tons of cargo, including all but about 155 tons in the lower hold, the other 125 tons being on the orlop and steerage decks. She then had a starboard list of about 8 . At that moment she suddenly rolled over from starboard to port and kept a port list of 9 or more. As she rolled over, the open cover of an aft coal port, about 33 inches by 22, was knocked off, leaving the bottom of the coal port about a foot above the water line.

Thereupon the master, who previously had given no attention to the discharge of cargo and loading of coal, ordered that coaling should be stopped on the port side, but continued on the starboard, that no more cargo should be taken from the lower hold, and that some sugar in bags should be shifted to the starboard side.

When 10 tons of sugar had been shifted, at 4.45 p. m., the steamer rolled back to starboard with a list of 8 , as before. Coaling was resumed on the port side, but at 6 was stopped on the starboard side. Between 6 and 9 p. m. all her side pockets were filled with coal up to the main deck, except one on the starboard, which lacked about 30 tons of being full. Some 20 or 25 tons were run into her cross bunkers in the lower part of the ship, which previously were about half full. About 50 tons of goods were discharged from the orlop and steerage decks, and about 60 tons of bacon were put on board and distributed evenly in the bottom of the hold. From 4.45 to 9 the starboard list was increasing constantly. At a little after 9 the steamer suddenly rolled over again to port, carrying the lower part of the open coal port below the water line. The pumps could not control the inflowing water and the ship sank before relief could be got. The damage to the goods was caused in this way.

The petitioner argues that the danger could not have been foreseen, and that there was no negligence, attributing the loss to an unusual gale and special circumstances. But the district court and the circuit court of appeals agree that the loss was due to hurried and imprudent unloading, which brought the center of gravity of the ship 5 or 6 inches above the metacenter. As usual, we accept their finding. The Iroquois,  194 U.S. 240, 247 , 48 S. L. ed. 955, 959, 24 Sup. Ct. Rep. 640; The Carib Prince ( Wuppermann v. The Carib Prince)  170 U.S. 655, 658 , 42 S. L. ed. 1181, 1182, 18 Sup. Ct. Rep. 753. We see no sufficient reason to doubt that it was correct. With reference to a part of the argument, we think it proper to say a word. It is quite true that negligence must be determined upon the facts as they appeared at the time, and not by a judgment from actual consequences which then were not

to be apprehended by a prudent and competent man. This principle nowhere has been more fully recognized than by this court. Lawrence v. Minturn, 17 How. 100, 110, 15 L. ed. 58, 62; The Star of Hope (The Star of Hope v. Annan) 9 Wall. 203, 19 L. ed. 638. But it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man concerned. The notion that it 'should be coextensive with the judgment of each individual,' was exploded, if it needed exploding, by Chief Justice Tindal, in Vaughan v. Menlove, 3 Bing. N. C. 468, 475. And since then, at least, there should have been no doubt about the law. Com. v. Pierce, 138 Mass. 165, 176, 52 Am. Rep. 264; Pollock, Torts, 7th ed. 432.

The foregoing statement, abridged from that of the district court, which was accepted by the circuit court of appeals, is sufficient to present the question which we have to discuss, if we add the finding of the latter court, that, after the Germanic was made fast, she was given in charge of the shore agents of the owners, and that they alone assumed direction of the discharging and loading of cargo, and prepared her for the return voyage. The question is whether the damage to the cargo was 'damage or loss resulting from faults or errors in navigation or in the management of said vessel,' as was set up in the answers, in which case the owner was exempted from liability by 3 of the Harter act, or whether it was 'loss or damage arising from negligence, fault, or failure in proper loading, storage, custody, care, or proper delivery' of merchandise under 1 of the same, in which case he could not stipulate to be exempt. The second section also recognizes and affirms the 'obligations' to carefully handle and store her cargo, and to care for and properly deliver the same.' Act of February 13, 1893 (27 Stat. at L. 445, chap. 105, U. S. Comp. Stat. 1901, p. 2946).

The petitioner contends that any dealing with the ship or cargo which affects the fitness of the ship to carry her cargo is

'management of the vessel,' within the meaning of 3. To support this contention the of The Glenochil