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THE SOUTHWARK, 191 U. S. 1 (1903)

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U.S. Supreme Court

The Southwark, 191 U.S. 1 (1903)

The Southwark

No. 12

Argued March 3, 1903

Decided October 19, 1903

191 U.S. 1

Syllabus

Before the passage of the Harter Act, 27 Stat. 445, there was, in the absence of special contract, an absolute warranty on the part of the shipowner which did not depend upon his knowledge or diligence, that the vessel was seaworthy at the beginning of the voyage.

Seaworthiness of a vessel engaged in the dressed meat trade relates and extends to the refrigerating apparatus necessary for the preservation of the meat during transportation.

The Harter Act expressly prohibits the insertion in bills of lading of any covenant or agreement lessening, weakening or avoiding the obligation of the owner to use due diligence to make the vessel seaworthy and capable of performing her intended voyage. The "dressed beef clause" inserted in bills of lading of a vessel engaged in that trade releasing the vessel from damages even though caused by defects in the refrigerating apparatus, whether existing at or prior to the commencement of the voyage. is in violation of this provision of the Harter Act, and will not relieve the vessel from such liability in the absence of proof that the owner has used due diligence at the commencement of the voyage to make the vessel, including the refrigerating apparatus, reasonably fit for the purposes and uses for which it is intended and thus seaworthy.

The burden of proof as to the seaworthiness of the vessel at the time of sailing is on the owner. The sudden breakdown of the refrigerating chanroblesvirtualawlibrary

Page 191 U. S. 2

apparatus within three hours of sailing raises a presumption of unseaworthiness at the time of sailing, independently of the Harter Act.

This case originated in a libel in rem filed in the District Court of the United States for the Eastern District of Pennsylvania, to recover for the loss of a quantity of dressed beef, shipped by the libellants on the steamer Southwark, a vessel belonging to the respondent, the International Navigation Company. The meat was required to be kept chilled during the passage, and the ship was engaged in the business of carrying such freight, and was fitted with a refrigerating apparatus for the purpose. The meat was received under a bill of lading acknowledging the receipt thereof in apparent good order and condition and undertaking to deliver the same at Liverpool in like good order and condition. Across the bill of lading there was this printed stipulation:

"It is expressly provided that the goods shipped hereunder are absolutely at the risk of the owners in every respect, and that the carrier is responsible for no loss, delay, or damage thereto, however arising, including stowage, and all risks of breakdown or injury, however caused, whether to its refrigerator or its machinery, even though arising from defect existing at or previous to the commencement of the voyage; also that, in case of the meat becoming, from any cause, in the opinion of the master of the vessel, putrid, dangerous or offensive to the passengers or the crew, it may be thrown overboard or otherwise disposed of without liability to the carrier for the consequent loss."

Upon the arrival of the ship at Liverpool, the meat was found to be in bad condition, mouldy and slimy, resulting in a considerable loss to the shipper. The libel seeks a recovery because the refrigerating apparatus was out of repair at the time of sailing, and was not repaired during the voyage, so that the temperature of the compartment in which the meat was carried could not be reduced to the proper degree for its safe transportation.

The answer avers that the Southwark left Philadelphia with chanroblesvirtualawlibrary

Page 191 U. S. 3

the refrigerating apparatus in perfect order after due inspection, and all necessary repairs were duly and promptly made while on the voyage.

Upon hearing in the district court, a decree was entered exonerating the vessel from fault, which decree was affirmed in the circuit court of appeals. 104 F.1d 3. chanroblesvirtualawlibrary

Page 191 U. S. 6





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