The following excerpts from the opinion of Judge Hough sufficiently set forth the facts:
“The wool was on one side of a wooden bulkhead and the whale oil on the other. The oil was well stowed and dunnaged, and no weather was encountered and no occurrences appear in the testimony explaining satisfacPage 397torily the enormous leakage which undoubtedly took place. * * * Some leakage was to he expected, and it follows that especial care was necessary to prevent injury to cargo In Its neighborhood. From the construction of the vessel it is clear that any considerable leakage from this whale oil would naturally tend to get into the subeompartment in which the wool was stowed, s. * * xhe excessive leakage of oil was known (to the ship's officers) and the oil was permitted to rise to the height of two feet and six inches in the bilges at a time when the vessel was encountering reasonably heavy weather and rolling and pitching a good deal. This is quite enough to account for the condition in which the wooi was found, and to render it probable that at one time the entire floor of the wool compartment was covered with oil, perhaps rising to the height of several incluís.”
The ship had sufficient pumps in good condition to discharge the oil from the bilges and keep it at so low a level as not to expose the wool to damage. But the master intentionally allowed it to accumulate, because if it were pumped overboard it would be lost; but if he could keep it in the bilges till the ship got to New York, it could be pumped out here “for the benefit of the oil people.”
The claimant contends that the ship is to be exonerated under the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]). The question presented is whether the damage to the wool was “loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care or proper delivery” of the 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 the vessel,” within the third section of that act.
The frequency with which pumps are worked during a voyage may fairly be classified as “management of the vessel,” but that is not determinative of the question here presented. In The Germanic, 196 U. S. 589, 25 Sup. Ct. 317, 49 L. Ed. 610, the court indicated that the purpose or intent with which some act was done or left undone was an important element to be considered. The court says:
“If the primary purpose is to affect the ballast of the ship, the change is management of the vessel; but if the primary purpose is to get the cargo ashore, the fact that it also affects the trim of the vessel does not make it the less a fault of the class which the first section removes from ihe operation of the third. The primary object determines the class to which it belongs.”
In the case at bar manifestly the oil was allowed to accumulate in the bilges, not for ship’s purposes, but because, as Judge Hough aptly expresses it, the master “chose to carry oil stowed in her bilges.” Such an act, although it happened during the voyage, is not within the provisions of the third section.
It is further contended by appellant that sufficient notice of claim was not given. The bill of lading provided that the owner should not be liable “for any damage to any goods, notice of which is not given before the removal of the goods.” The vessel discharged at a dock in Brooklyn, and many bales of wool consigned to libelants were taken away in good order. The particular lot from this part of hold No. 2, including the damaged bales, was placed on the dock on or before May 28, 1907. Libelants gave a lighterage company an order for it for transportation to the Jersey City Stores. The lighter came to the dock and began to load this wool late in the evening of May
A provision such as this, incorporated in a bill of lading and accepted by the shipper, becomes a part of the contract between the parties; and if recovery is sought upon the contract, the party seeking to recover must show compliance with its terms. The court cannot substitute some other provision, and hold that compliance therewith is sufficient. Moore v. Harris, 45 Law Journal, P. C. 55, a case closely parallel to the one at bar. A fair construction of the words “before removal” would make them refer, not merety to removal from the ship’s hold, but to removal from her custody and control. Our courts have held that there are certain stipulations which the public policy of this country will not allow a carrier to make — such, for instance, as would protect him against the consequences of his own negligence. But this stipulation is not of that character. It has been held that bills of lading may properly contain some reasonable requirements that notice of claim be given, so that the shipowners may know, not merely whether there is damage for which no demand may ever be made, but whether any claim for damages is asserted by the consignee, so that the necessary investigation may be made- while the goods are still under the control of the ship. The Westminster, 127 Fed. 680, 62 C. C. A. 406; The St. Hubert, 107 Fed. 727, 46 C. C. A. 603. See, also, The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419, where a requirement that notice of claim should be made within 30 days after the date of the bill of lading was sustained, and the court cites with approval Goggin v. Kansas Pac. Ry. Co., 12 Kan. 416, which held of a requirement that claims for damage to live stock should be made in writing, before or at, the time the stock was unloaded:
“The parties were competent to make the contract, and did make it, and it must be held good, unless it is contrary to public policy.”
Since we cannot hold that the clause in this bill of lading is against public policy, we cannot strike it out of the contract merely because the present case is a hard one, nor can we substitute some other clause in its place on any theory that claimant may not have been prejudiced by failure to receive notice of claim while the goods were still under its control. Having failed to comply with this provision, libelants cannot recover.
The decree is reversed, and cause remanded to the District Court, with instructions to dismiss the libel, without costs in either court.