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.
5. Wreck or Stranding.—
Shipwreck or disaster does not affect the title of the owners of the cargo but the goods themselves may become subject to superior liens for salvage and general average.[13] If the voyage is broken up the owner may take his property wherever he can find it, subject to such maritime liens as may have lawfully accrued and, also, in some cases, to a claim for freight in proportion to the part of the voyage which has been performed. In the absence of the owners, the master is the agent of all concerned and has as much authority as the necessities of the situation require.
In practice almost all matters growing out of a disaster are dealt with by the underwriters. Cargoes are seldom uninsured. The owner should promptly notify his insurers or brokers and tender an abandonment and the underwriters will attend to the situation which develops. If the abandonment be accepted, the shipper receives the insured value of his goods and the insurers stand in his stead as owners. The policy will also ordinarily protect against the loss if less than total and cover all charges for salvage, general average, and warehousing to which the property may be subjected. The shipper and his representatives are entitled to a copy of the master's protest and all other information in regard to the disaster and also to be consulted in regard to operations for the release of the ship and cargo if they so desire.