Opinion of the Court. guage that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise when there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute. In the case at bar the omission to make specific provision for the time of payment does not offend the moral sense; Holy Trinity Church v. United States, 143 U. S. 457; it involves no injustice, oppression or absurdity, United States v. Kirby, 7 Wall. 482; McKee v. United States, 164 U. S. 287; there is no overwhelming necessity for applying in the one clause the same limitation of time which is provided in the other. Non constat but that Congress believed it had sufficiently provided for payment by other legislation in reference to retaining possession until payment or security therefor; or that it failed to appreciate the advantages which counsel insists will inure to the importer in case payment does not equally with protest follow within ten days from the action of the collector; or that, appreciating fully those advantages, it was not unwilling that he should enjoy them. Certainly, there is nothing which imperatively requires the court to supply an omission in the statute, or to hold that Congress must have intended to do that which it has failed to do. Under these circumstances, all that can be determined is that Congress has not specifically provided that payment shall be made within ten days. as one of the conditions of challenging the action of the collector, and hence there is no warrant for enforcing any such condition. An answer in the negative must be certified to the Circuit Court of Appeals. Statement of the Case. COMPANIA DE NAVIGACION LA FLECHA v. BRAUER. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 39. Argued March 29, 30, 1897. Decided October 28, 1897. A contract, made at New York to carry cattle on deck of a steamboat from New York to Liverpool, contained these provisions: "On deck at owner's risk, steamer not to be held accountable for accident to, or mortality of, the animals, from whatever cause arising." "The carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters; 'by barratry of the master or crew;" "by collisions, stranding or other accidents of navigation, of whatsoever kind, even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners or other servants of the shipowner." Held, that by the terms of this contract, whether governed by the law of this country or by the law of England, the carrier was not exempted from responsibility for the loss of sound cattle, forcibly thrown or driven overboard, in rough weather, by order of the master, from unfounded apprehension on his part, in the absence of any pressing peril to the ship, and with no apparent or reasonable necessity for a jettison of the sound cattle, and no attempt to separate them from those which had already been injured by perils of the sea. THIS was a libel in admiralty in the District Court of the United States for the Southern District of New York by William W. Brauer and Frederick C. Brauer, residing and doing business as partners under the name of William W. Brauer & Company at Richmond in the State of Virginia, and by the Reliance Marine Insurance Company, Limited, of Liverpool, a corporation organized under the laws of Great Britain, against the Compania de Navigacion la Flecha, a corporation organized under the laws of Spain, and owner of the steamship Hugo, to recover for the loss of cattle shipped by the partnership October 24, 1891, on deck of the Hugo at New York for Liverpool under a bill of lading, the material parts of which are copied in the margin, the parts there Statement of the Case. printed in ordinary type being in print, and those in italics being in writing, in the original.1 The libel alleged that the vessel, having one hundred and 1 Received in apparent good order and condition, by the Spanish steamer Hugo, from Wm. W. Brauer & Co., to be transported by the good steamship Hugo, now lying in the port of New York, and bound for Liverpool, one hundred and sixty-five live cattle on deck. On deck at owner's risk, steamer not to be held accountable for accident to, or mortality of, the animals, from whatever cause arising; being marked and numbered as per margin (weight, quality, contents and value unknown), and to be delivered in like good order and condition at the port of Liverpool (or so near thereto as she may safely get) unto shippers' order or to his or their assigns. Freight prepaid in New York. General average payable according to York-Antwerp rules. It is mutually agreed that the ship shall have liberty to sail without pilots; to tow and assist vessels in distress; to deviate for the purpose of saving life or property; that the carrier shall have liberty to convey goods in lighters to and from the ship at the risk of the owners of the goods; and, in case the ship shall put into a port of refuge, or be prevented from any cause from proceeding in the ordinary course of her voyage, to tranship the goods to their destination by any other steamship. It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters; by fire from any cause and wheresoever occurring; by barratry of the master or crew; by enemies, pirates or robbers; by arrest and restraint of princes, rulers or people, riots, strikes or stoppage of labor; by explosion, bursting of boilers, breakage of shaft, or any latent defect in hull or machinery, or appurtenances; by collisions, stranding, or other accidents of navigation, of whatsoever kind, (even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners or other servants of the shipowner, not resulting, however, in any case, from want of due diligence by the owners of the ship, or any of them, or by the ship's husband or manager); nor by decay, heating, putrefaction, rust, sweat, change of character, drainage, leakage, breakage, or any loss or damage arising from the nature of the goods or the insufficiency of packages; nor for land damage; nor for the obliteration, errors, insufficiency or absence of marks, or numbers, address or description; ncr for risk of craft, hulk or transhipment; nor for any loss or damage caused by the prolongation of the voyage. * 14. Also, that this contract shall be governed by British law, with reference to which law this contract is made. And, finally, in accepting this bill of lading, the shipper, owner and consignee of the goods, and the holder of the bill of lading, agree to be bound by all of its stipulations, exceptions and conditions, whether written Statement of the Case. sixty-five head of live cattle on board, sailed for the port of Liverpool on October 24, 1891; that "about October 31, 1891, the said vessel having encountered some rough weather, the master and crew of said vessel became panic stricken, and drove overboard one hundred and twenty-six head of cattle; the said vessel did not incur any extraordinary or unusual stress of weather, and the act of said master and crew in driving overboard said cattle was wholly unnecessary, and the loss of said cattle was due to the incompetency and lack of skill of the master and crew;" that the vessel afterwards arrived safely at Liverpool, and delivered to the shippers or their agents thirty-eight of the cattle in good condition, one having died; and that the insurance company, having insured the cattle, paid the partnership for the loss, and took an assignment of its rights of action against the steamer and her owners. The answer alleged that the receipt, transportation and delivery of the cattle were subject to the terms and conditions of a contract between the shippers and the respondents, dated October 10, 1891, (which is copied in the margin,1) and of the or printed, as fully as if they were all signed by such shipper, owner, consignee or holder. 1 White Star Line. Cattle contract Memorandum of agreement concluded at New York the tenth day of October, 1891, between H. Maitland Kersey, agent of the Spanish steamer Hugo, and Messrs. William H. Brauer & Co., of Richmond, Virginia. The agent agrees to let to the said shipper suitable space, as undernoted, for the transportation of live cattle; this is to say: On the steamer Hugo, intended to sail from New York about Oct. 24th, 1891, for Liverpool, England. For about one hundred sixty live cattle on the upper deck. The shipper agrees to ship all the cattle, as above mentioned, at the rate of fifty shillings, British sterling, for each animal shipped on open decks. The shipper especially agrees to prepay freight on the above mentioned shipments on date of sailing, in current funds at the rate for which prime bankers are selling sight bills on London, on the number of cattle shipped at New York, vessel lost or not lost, and irrespective of the number landed at the port of destination, and the shipper assumes all risk of mortality or accident, however caused, throughout the voyage. Statement of the Case. bill of lading; admitted the sailing of the vessel with the cattle on board, and a loss of the cattle; denied the other allegations of the libel; and contained the following averments: Stalls to be put up at ship's expense, and to be constructed to the satisfaction of the inspector or underwriters interested, and to the satisfaction of shipper, who will assume all responsibility for same, and for the various appliances for ventilation after shipment of cattle. The steamer undertakes to supply sufficient good condensed or fresh water for the use of the animals during the voyage; also, water casks and hose. Steamer to provide space, free of charge, for corn and strictly compressed fodder for animals, but freight, if demanded, shall be payable on any unusual excess of fodder landed at port of destination. If fodder be supplied that is not strictly compressed, a proportionate quantity may be carried on deck. Steamer to supply suitable gangways and elevators for loading cattle. Steamer to give free passage, over and back, and to supply bedding to drovers in charge of animals, (not exceeding one man to every thirty cattle,) and if not returning direct to port of sailing, to provide free intermediate passage back for foreman, and free steerage passage back for other attendants, by first available steamer of this line. Steamer to give six running days' notice of her intended departure, and twelve hours' notice of the hour the cattle must be delivered to her, but such notices to be given or received are subject to become inoperative in case of strike or stoppage of labor. Steamer guarantees to sail as soon after shipment of all the animals as tide and weather permit, or pay expenses of keep of animals at the rate of 50c. per head per day in full. Steamer has privilege of exceeding her net register tonnage in grain, upon payment to shippers the extra premium charged by the underwriters with whom the animals are insured. Shippers to deliver the cattle to the vessel between sunrise and sunset, at the dock or in the stream, at their option. Shippers guarantee to deliver animals by expiry of notice, provided vessel is ready for them, or to pay for detention of steamer at the rate of £50 per day. In case of non-arrival of vessel in time to sail from New York on or before November 4, 1891, shipper has option of cancellation. The line form of live stock bill of lading to be used for cattle shipped under this contract, and its conditions to govern any questions not provided herein, subject to U. S. Government inspection. Any dispute arising under this contract to be settled by arbitration in the usual way. Dated New York, October 10th, 1891. H. MAITLAND KERSEY. |