The law of the sea

by George L. Canfield; J. Y. Brinton; George W. Dalzell

4. Loading and Stowage.—

These are done in accordance with the provisions of the contract of carriage or custom of the port at which the cargo is taken on board. Proper loading and stowage is an important element of seaworthiness of the ship. The cargo must be so disposed as to keep her trim and seaworthy and also so that one portion may not injure another. This work is frequently done by stevedores, whose services, when employed by the ship, are now recognized as maritime and secured by a lien on the vessel. They are, however, subject to the master's control and he is not to take on more cargo than he thinks the vessel can safely carry nor permit its stowage to interfere with the general safety of the adventure. He may refuse to take on more cargo than in his honest opinion is prudent, and must not permit any overloading at all. A fair test is the depth which the vessel was constructed to draw or that which the master and others of experience on the spot believed to be proper. The shipper of goods by sea must disclose their real character and value. He is bound to know whether they have explosive or other dangerous qualities, and, if concealment has been practiced by him on the shipowner, he will be liable for all the damages sustained from their effects. In every shipment there is an implied warranty on the part of the shipper that his goods are not of a character to cause injury to other goods on board, unless otherwise specially stipulated, and he is held liable for all the consequences of its breach; if the carrier has thereby been obliged to compensate other shippers, he may recover over against the delinquent what he was so compelled to pay.

In the case of Barker v. The Swallow, 44 Fed. 771, a small steamer, in use in the lumber trade on the Great Lakes, took a cargo of pine boards, laden as usual on deck. She encountered a strong wind and heavy sea, causing her to roll badly so that a portion of the lumber slid off the starboard side and another portion off the port side as the vessel careened in either direction. It was conceded that it was not the usage to lash deck loads of lumber vessels with ropes or chains, but with ordinary safe loading the boards would be held in place by the frictional contact of their surfaces under the weather conditions ordinarily encountered on Lake Michigan. The libellant (owner of the lumber) contended that too much lumber had been loaded upon the deck and thereby made her top-heavy, and caused her to roll more than she would have done had she not been overloaded on deck, and that the rough weather encountered did not amount to a "tempest". The Court held

while a vessel is not liable for the loss of her deck-load when it is lost by stress of weather, or what can be properly called "a peril of the sea," yet, if she takes on so heavy a deck-load as to become top-heavy, and endangers loss of the deck-load, or puts it in peril in an ordinary wind, or anything less than a gale of wind, or such stress of weather as is clearly unusual, it should, I think, be accounted bad stowage and negligence. Overloading the vessel so as to render her unmanageable, or susceptible of becoming unmanageable, by such a wind as is shown to have prevailed on the night in question, is, I think, a manifest negligence on the part of the carrier, and such as should not acquit him of liability if the cargo is lost.

In this case there was testimony that the vessel had carried much heavier deck cargo in safety, but the Court considered that this proved no more than her good luck.

Where the particular method of stowage is determined by the shipper, and damage results, the vessel is not liable for damage to cargo so stowed. A distinction is also to be noted between underdeck cargo and cargo stowed on deck. These principles are illustrated by the case of Lawrence v. Minturn, 17 How. (U. S.) 100. In that case certain boilers and chimneys were shipped aboard the Hornet and stowed on deck with the consent of their owner. The vessel encountered bad weather and began to roll gunwale deep, shipping large quantities of water, opening seams and endangering the safety of the underdeck cargo, as well as the lives of those on board. After consultation with his officers and members of the crew the master lightened ship by throwing overboard the deck cargo. The owner of the boilers and chimneys libeled the ship. In directing the libel to be dismissed the Supreme Court said:

It was strongly urged by the libellant's counsel that the shipper could not be supposed to have, and should not suffer for not possessing, a knowledge of the capacity or sufficiency of the ship; that the carrier was bound to know that the instrument, by which he agreed to perform a particular service, was sufficient for that service; and that, as these carriers contracted to convey this deck-load to San Francisco, they were obliged to ascertain whether placing it on deck would overload their vessel. This appears to have been the ground on which the court below rested its decree.

This reasoning would be quite unanswerable if applied to a shipment of cargo under deck, or to its being laden on deck without the consent of the merchant, or to a contract in which perils of the sea was not excepted. But the maritime codes and writers have recognized the distinction between cargo placed on deck, with the consent of the shipper, and cargo underdeck.

There is not one of them which gives a recourse against the master, the vessel, or the owners, if the property lost had been placed on deck with the consent of the owner;...

The carrier does not contract that a deck-load shall not embarrass the navigation of the vessel in a storm or that it shall not cause her so to roll and labor in a heavy sea as to strain and endanger the vessel. In short, he does not warrant the sufficiency of his vessel, if otherwise staunch and seaworthy to withstand an extraordinary action of the sea when thus laden. If the vessel is in itself staunch and seaworthy, and her inability to resist a storm arises solely from the position of a part of the cargo on her deck, the owner of the cargo who has consented to this mode of shipment, cannot recover from the ship or its owners, on the ground of negligence or breach of an implied contract respecting seaworthiness....

The master is bound to use due diligence and skill in stowing and staying the cargo; but there is no absolute warranty that what is done shall prove sufficient.

In this connection, however, it should be noted that the foregoing decision has not been interpreted to mean that where a shipper assumes the risk of deck cargo he thereby bargains away his right to recover for loss of such cargo if the ship were inherently incapable of carrying it. Thus the court in the Royal Sceptre, 187 Fed. 224, where the shipper himself was the charterer and loaded the cargo on deck, said:

Pressed to its logical limit, the untenable nature of the argument seems very plain; for if a vessel can become unseaworthy by piling up deckload, without any liability to the owner of the same, she may capsize as soon as her fasts are thrown off. Deck cargo at shipper's risk does not mean such absolute surrender of all rights. The risk assumed presupposes proper loading for deck stowage and a seaworthy ship. It is not thought that Lawrence v. Minturn asserts any doctrine opposed to this. It speaks only of a jettison; while, if even a jettison be rendered necessary by unseaworthiness existing at commencement of voyage, the ship is liable, as is shown by the summary of decisions given in Compania De Navigacion la Flecha v. Brauer, 168 U. S. 120, 121.