Opinion of the Court. SULLY v. AMERICAN NATIONAL BANK. ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE. No. 266 of October Term, 1899. Submitted October 9, 1900.-Decided October 22, 1900. For reasons stated in the opinion of the court a motion to retax costs in this case is granted and the costs modified accordingly. THIS was a motion to retax the costs in this case. Mr. Samuel C. Williams for the motion. Mr. R. E. Mountcastle opposing. MR. JUSTICE PECKHAM delivered the opinion of the court. ་། This is in substance a motion to retax costs in this case. Upon the day of the final adjournment of the court, May 28, 1900, the cause was decided, and a decree entered reversing the judgment of the Supreme Court of Tennessee as to the plaintiff in error Carhart, who was one of several plaintiffs in error, with costs to be paid by the American National Bank. Subsequently to the adjournment all the costs of this court were taxed against the bank, which now prays for a retaxation. The decree of this court has been misinterpreted. It does not mean that all the costs in this court are to be paid by the bank, but only the costs of the plaintiff in error Carhart, in regard to whom alone the judgment of the court below was reversed. The motion to retax the costs is granted, and the taxation modified to that extent. Mr. E. J. Baxter for the motion. Mr. R. E. L. Mountcastle opposing. Opinion of the Court. KNOTT v. BOTANY MILLS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 5. Argued October 12, 13, 1899.-Decided October 22, 1900. Bales of wool were stowed on a steamship, with proper dunnage, between decks and forward of a temporary wooden bulkhead. At a subsequent port, wet sugar (from which there is always drainage) was stowed aft of that bulkhead, with proper dunnage, but without any provision for carrying off the drainage in case it ran forward. The ship was then down by the stern, and all drainage from the sugar was carried off by the scuppers. At a third port, other cargo was discharged, so as to trim the vessel two feet by the head; and the drainage from the sugar found its way through the bulkhead, and damaged the wool, through negligence of those in charge of the ship and cargo. Held That the damage to the wool was through fault in the proper loading or stowage of the cargo, within section 1 of the act of February 13, 1893, c. 105, known as the Harter Act, and not from fault in the navigation or management of the vessel, within section 3 of that act. The words, in section 1 of the Harter Act, "any vessel transporting merchandise or property from or between ports of the United States and foreign ports," include a foreign vessel transporting merchandise from a foreign port to a port of the United States; and such a vessel and its owner are therefore liable for negligence in proper loading or stowage of the cargo, notwithstanding any stipulations in the bill of lading that they shall be exempt from liability for such negligence, and that the contract shall be governed by the law of the ship's flag. THE case is stated in the opinion of the court. Mr. J. Parker Kirlin for the petitioner. Mr. Wilhelmus Mynderse for the respondents. Mr. Lawrence Kneeland filed a brief for same. MR. JUSTICE GRAY delivered the opinion of the court. The Botany Worsted Mills, a corporation of New Jersey, and Winter and Smillie, a firm of merchants in the city of New York, Opinion of the Court. respectively owners of two separate lots of bales of wool, shipped at Buenos Ayres for New York on board the steamship Portuguese Prince, severally filed libels in admiralty in personam in the District Court of the United States for the Southern District of New York, against James Knott, the owner of the vessel, to recover for damage caused to the wool by contact with drainage from wet sugar which also formed part of her cargo. The Portuguese Prince was a British vessel, belonging to a line trading between New York and ports in the River Plata, Brazil, and the West Indies, loading and discharging cargo and having a resident agent at each port. The bills of lading of the wool, signed at Buenos Ayres, December 21, 1894, gave her liberty to call at any port or ports to receive and discharge cargo, and for any other purpose whatever; and purported to exempt the carrier from liability for "negligence of masters or mariners;" ;" "sweating, rust, natural decay, leakage or breakage, and all damage arising from the goods by stowage, or contact with, or by sweating, leakage, smell or evaporation from them;" "or any other peril of the seas, rivers, navigation, or of land transit, of whatsoever nature or kind; and whether any of the perils, causes or things above mentioned, or the loss or injury arising therefrom, be occasioned by the wrongful act, default, negligence, or error in judgment of the owners, masters, officers, mariners, crew, stevedores, engineers and other persons whomsoever in the service of the ship, whether employed on the said steamer or otherwise, and whether before, or after, or during the voyage, or for whose acts the shipowner would otherwise be liable; or by unseaworthiness of the ship at the beginning, or at any period of the voyage, provided all reasonable means have been taken to provide against such unseaworthiness." Each bill of lading also contained the following clause: "This contract shall be governed by the law of the flag of the ship carrying the goods, except that general average shall be adjusted according to York-Antwerp Rules, 1890.” The facts of the case are substantially undisputed. The bales of wool of the libellants were taken on board at Buenos Ayres, December 21-24, 1894, and were stowed on end, with proper dunnage, between decks near the bow, and forward of a tem Opinion of the Court. porary wooden bulkhead, which was not tight. The vessel, after touching at other ports, touched on February 19, 1895, at Pernambuco, and there took on board two hundred tons of wet sugar, (from which there is always drainage,) which was stowed, with proper dunnage, between decks, aft of the wooden bulkhead. At that time the vessel was trimmed by the stern, and all drainage from the sugar, flowing aft, was carried off by the scuppers, which were sufficient for the purpose when the vessel was down by the stern, or on even keel in calm weather. There was no provision for carrying off the drainage in case it ran forward. She discharged other cargo at Para; and on March 10, when she left that port, she was two feet down by the head. She continued in this trim until she took on additional cargo at Port of Spain, where the error in trim was corrected, and she left that port on March 18, loaded one foot by the stern. It was agreed by the parties that there was no damage to the wool by sugar drainage until she was trimmed by the head at Para; that the wool was damaged, by sugar drainage finding its way through the bulkhead and reaching the wool, at Para, or between Para and Port of Spain, and not afterwards; that, after she was again trimmed by the stern at Port of Spain, none of the drainage from the sugar found its way forward; and that the court might draw inferences. The District Court entered a decree for the libellants. 76 Fed. Rep. 582. That decree was affirmed by the Circuit Court of Appeals. 51 U. S. App. 467. The appellant then obtained a writ of certiorari from this court. 168 U. S. 711. Before the act of Congress of February 13, 1893, c. 105, (27 Stat. 445,) known as the Harter Act, it was the settled law of this country, as declared by this court, that common carriers, by land or sea, could not by any form of contract exempt themselves from responsibility for loss or damage arising from negligence of their servants, and that any stipulation for such exemption was void as against public policy; although the courts in England and in some of the States held otherwise. Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool Steam Co. v. Phoenix Ins. Co., 129 U. S. 397; Compania La Flecha v. Brauer, 168 U. S. 104, 117, 118. In many lower courts of the United States Opinion of the Court. it has been held, independently of the Harter Act, that a stipulation that a contract should be governed by the law of England in this respect was void, and could not be enforced in a court of the United States; but the point has not been decided by this court. Nor is it necessary for us now to decide that point, because these bills of lading were issued since the Harter Act, and we are of opinion that the case is governed by the express provisions of that act. Upon the facts of this case, there can be no doubt that the ship was seaworthy, and that the damage to the wool was caused by drainage from the wet sugar through negligence of those in charge of the ship and cargo. The questions upon which the decision of the case turns are two: First. Whether this damage to the wool was "loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care or proper delivery" of cargo, within the first section of the Harter Act; or was "damage or loss resulting from faults or errors in navigation or in the management of said vessel," within the third section of that act? Second. Do the words, in the first section, "any vessel transporting merchandise or property from or between ports of the United States and foreign ports," include a foreign vessel transporting merchandise from a foreign port to a port of the United States? Section 1 of that act is as follows: "It shall not be lawful for the manager, agent, master or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant or agreement whereby it, he or they shall be relieved from liability for loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import, inserted in bills of lading or shipping receipts, shall be null and void and of no effect." This section, in all cases coming within its provisions, overrides and nullifies any such stipulations in a bill of lading. Calderon v. Atlas Steamship Co., 170 U. S. 272. |