The Carib Prince/Dissent Brown

Mr. Justice BROWN, with whom was Mr. Justice BREWER, dissenting.

For the reasons stated by me in The Caledonia, 157 U.S. 124, 140, 15 Sup. Ct. 537, I am compelled to dissent from the opinion of the court in this case. The accident in that case occurred by the breaking of a propeller shaft, owing to its having been weakened by meeting with extraordinarily heavy seas on previous voyages. No defect in the ship was visible, or could have been detected by the usual and reasonable means if the shaft had been taken out and examined.

The minority of the court, conceding the general principle that, in every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of the beginning of the voyage, was of opinion that the Caledonia was exempt from the losses claimed by the exception in the bill of lading 'of loss or damage from * *  * machinery or defects therein.' It was argued that this exception was obviously inserted for the purpose of exempting the ship from some liability to which, without such exception, it would be subject. It evidently was not intended to be limited to mere breakages of machinery which should occur after the voyage began, since the breaking of sound machinery through the stress of weather is treated as an inevitable accident or peril of the sea, for which the ship would not be liable, whether there were an exception or not; and the following cases were cited as sustaining this proposition: The Virgo, 3 Asp. 285; The William Lindsay, L. R. 5 P. C. 338; The Miranda, L. R. 3 Adm. & Ecc. 561; The Cargo ex Laertes, 12 Prob. Div. 187; The Curlew, 51 Fed. 246.

In the case under consideration the exception is more specific, and exempts the ship 'from loss or damage from * *  * accidents or latent defects in hull, tackle, boilers, and machinery, or their appurtenances.' It was admitted that the sole cause of the accident was a latent defect in a rivet from which the head had come off; that this defective condition of the rivet was caused by the fact that the quality of the iron had been injured during the construction of the vessel by too much hame ring, so that it had become brittle and weak, thus rendering it unfit to sustain the reasonable pressure caused by filling the tank with water while at sea.

It was further found by the courts below that abundant diligence had been used in the construction of the vessel; that the defect in the rivet was a latent one, which occurred at the time she was built; that it was not discovered and was not discoverable, at that time or subsequently, by the exercise of all the known and customary tests and methods of examination, which were all employed.

The question then arises as to what was meant by the exception of 'latent defects.' It evidently was not intended to refer to defects which became such after the beginning of the voyage through stress of weather or other perils of the sea, since the ship would not be liable for such defects or breakages, whether excepted or not in a bill of lading. A ship is never liable for an accident or breakage of machinery occasioned by perils of the sea, and the word 'defects' is never used in that connection. The words 'latent defect,' as ordinarily understood, apply to something existing at the time the ship or other vehicle was constructed, and such as was not discovered and could not be discovered by ordinary methods of examination. To exempt a vessel from the consequences of such a defect is neither unreasonable nor unjust, and most of the modern bills of lading contain a stipulation to that effect.

The case of The Cargo ex Laertes, 12 Prob. Div. 187, is in point. Bills of lading, under which the cargo was shipped, contained, among other excepted perils, the clauses 'warranted seaworthy only so far as ordinary care can provide,' and 'owners not to be liable for loss, detention, or damage * *  * if arising directly or indirectly *  *  * from latent defects in boilers, machinery, *  *  * even existing at time of shipment.' The Laertes broke down from a latent defect, which could not have been discovered by the exercise of all reasonable care; and it was held that the exception of latent defects, if it did not abrogate, at all events limited, the warranty which the law would otherwise imply that the ship was seaworthy at the beginning of the voyage. I do not regard the words 'even existing at time of shipment' as adding anything to the words 'latent defects,' since in our view of those words, as ordinarily understood, they must have existed at the time of shipment.

The hardship of the ruling in the case under consideration appears the more manifest from the fact that the Carib Prince was a British steamer, and that the bill of lading was signed at Trinidad, a port governed by the English law.

I agree with the majority of the court that the Harter act cuts no figure in this case. While it is possible that the framers of this act may have intended to exonerate ships from the consequences of unseaworthiness where due diligence had been used to make them seaworthy, it must be conceded that the language of the third section does not express such intent, since it only exonerates them from loss or damage resulting from faults or errors in navigation or management. But I think that recent cases in this court have imposed a most severe and impracticable measure of liability,-one which operates with great hardship upon the prudent and careful owner, and one which is calculated to invite further legislation in the direction of the Harter act.