California-Atlantic S. S. Co. v. Central Door & Lumber Co.

(after stating the facts as above). On the appeal to this court, the appellant presents the question of the jurisdiction of the District Court to entertain the libel and contends that no cause within the jurisdiction of the admiralty is stated for the reason that it is not alleged in the libel that the damage to the goods occurred while the same were upon either of the vessels 'which carried' the same, and that, for aught that appears to the contrary, all the injury may have been sustained during the transportation of the goods across the Isthmus of Panama.

[1] When goods are delivered to a carrier, there is a contract, either expressed or implied, that the carrier will carry them with safety. For negligence in carrying them, resulting in loss or damage thereto, an action will lie either for breach of contract or for tort. Cooley on Torts, 157. In the present case the libel is for tort, but in admiralty the court will determine cases upon equitable principles. “It is never made a point of pleading whether the case rests upon contract or tort.” Borden v. Hiern, 1 Blatch. & H. 293, Fed. Cas. No. 1,655; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. 182 , 193, 36 C. C. A.…

(dissenting). I am of the opinion that the libel in this case states a case within the admiralty and maritime jurisdiction of the District Court, and that the decree should be affirmed.

It is alleged in the libel, in substance, that the respondent is a common carrier, and owned and chartered divers steamships which respondent employed in carrying cargo between Philadelphia and other Atlantic ports and Portland and other Pacific ports; that among the steamships so owned or chartered were the steamships “Mills” and “Stanley Dollar”; that the libelant shipped certain merchandise in good order and condition on board the steamship “Mills” at the port of Philadelphia, bound for the Isthmus of Panama, and connecting lines and steamers, to Portland, Or.; that the merchandise was properly packed for carriage and handling, and was consigned to the libelant at Portland, Or.; that the merchandise arrived at Portland, Or., in the steamship “Stanley Dollar” and was delivered to the libelant in a damaged condition, owing to the negligence of the respondent in stowing and handling said merchandise.

*12 The “stowing” of merchandise is a technical term, used in maritime law, and refers to “the…