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G. MARTINI, LTD., plaintiff-appellee, vs. MACONDRAY & CO. (INC.), defendant-appellant.

Exemption from Liability; Natural Disaster | July 28, 1919 | Street
DOCTRINE: Where cargo is, with the owner's consent, transported on the deck of a sea-going vessel upon a bill
of lading exempting the ship's company from liability for damage, the risk of any damage resulting from carriage
on deck, such as the damage caused by rain or the splashing aboard of sea water, must be borne by the owner.
SUMMARY: G. Martini Ltd. arranged for the shipment of chemical products with Macondray & Co. Martini was made to
sign a letter of guaranty allowing stowage of the goods on or under the ship hold and freeing Macondray & Co from
liability because Martini wanted to get first the bills of lading before the mate’s receipt. Later, it feigned that it had been
deceived by Macondray & Co. and it did not consent to stowage of its goods on the deck despite the fact that it did not
give instructions for the discharge of its goods from the ship. When the goods arrived with damage from rain or sea,
Martini sued Macondray & Co. The Court ruled that Martini consented to having its goods stowed on deck and that, while
the ship can still be held liable notwithstanding the letter of guaranty, Martini cannot recover damages because it neither
alleged nor proved that the damages to the goods were due to the negligence of Macondray & Co.

FACTS:
• Plaintiff G. Martini Ltd. Arranged with the defendant company, Macondray & Co, (Inc.), as agents of Eastern and
Australian Steamship Company, for the shipment of 219 cases/packages of chemical products from Manila to Kobe,
Japan.
o Usual practice:
▪ Shipper produces mate’s receipt to the agents of the ship’s company → agents issue bill of lading
to shipper
▪ If shipper desires to produce bill of lading before mate’s receipt, shipper customarily enters into a
written obligation binding himself to abide by the terms of the mate’s receipt
o ITCAB
▪ Mate’s receipt did not come to plaintiff’s hand until Monday night
▪ Plaintiff desirous of obtaining bills of lading on Saturday morning so it might negotiate it at the bank
▪ Request made for deliver of bills of lading that day
▪ Plaintiff required to enter into a written obligation called a “letter of guarantee”1 where plaintiff
assented to having the package shipping “on or under the deck at the ship at the ship’s option” and
guaranteeing that defendant would be free of liability in doing so.
▪ Bills of lading were issued containing on their face conspicuously stenciled the words “on deck at
shipper’s risks
▪ The mate’s receipt, received by plaintiff 2 days later, also bore the notation “on deck at shipper’s
risk” written in pencil and evidently by the officer who took the cargo on board and signed the
receipt.
▪ Plaintiff examined the nonnegotiable copies of the bills of lading retained by the house and when it
discovered those words had it protested (via Codina2 who then relayed it to Basa3) wrote a letter
saying it holds the company liable.
• Testimonies here differ. Basa testified that he said to Codina that if plaintiff was unwilling,
they would discharge the goods and Codina said that plaintiff was willing. Codina said that
plaintiff was unwilling but he was unable to contact Basa.
• The good were embarked at Manila on the steamship Eastern and were carried to Kobe on the deck of that ship.
• Upon arrival at the port of destination, it was found that the chemicals comprised in the shipment had suffered
damage from the effects of both fresh and salt water.
• Plaintiff filed an action for damages against defendant → CFI ruled in favor of plaintiff → defendant appealed.
• Arguments of the parties:
o Plaintiff contends that it was the duty of the ship’s company to stow this cargo in the hold 4 and not to place
it in an exposed position on the open deck and that it never gave its consent for the goods to be carried on
deck.

1 "In consideration of your signing us clean B/L for the undermentioned cargo per above steamer to be shipped on or under deck at ship's option, for Kobe without
production of the mate's receipt, we hereby guarantee to hold you free from any responsibility by your doing so, and for any expense should the whole or part of the
cargo be shut out, or otherwise, and to hand you said mate's receipt as soon as it reaches us and to abide by all clauses and notations on the same."
2 An employee of the house whose duty it was to attend to all shipments of merchandise and who in fact had entire of all the matters relating to this cargo.
3 Who was in charge if the shipping department of the Macondray & Company.
4 A ship cargo hold is an enclosed space within a ship designed for storing cargo such as coal, grain or salt. It usually lies under the deck of a ship and can hold anything

from 20 tonnes to 200,000 tones

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o Defendant argues that by the contract of affreightment the cargo in question was to be carried on deck at
the shipper’s risk, calling attention to the rubber stencil and ¶ 19 of the bills of lading.

ISSUE: Whether there is consent on the part of plaintiff to transport the goods on deck and whether the company
is exempt from liability – YES

RULING
• Plaintiff, notwithstanding its preference for the cargo to be carried under the hatches, consented to it being carried
on deck.
o Based on the tenor of the letter of guaranty
o Plaintiff duly notified of manner of shipment → only complained until after bills of lading were negotiated at
bank = had time but failed to give necessary instruction = acquiesced → feigned surprise and pretended
that it had been deceived
o Reasons why plaintiff allowed the cargo to be carried away:
▪ Bills had been discounted → stoppage of shipment = refunding money bank advanced
▪ Shifting risk to shipping company
o Certain formalities necessary in order to get the cargo off the ship → plaintiff did nothing = proof of
practicability of discharge inconclusive
o Codina’s testimony that he was unable to get Macondray & Co. without weight.
o No space in the hold → reason for stowage on or under deck provision → Macondray & Co. refused to
issue bills of lading upon a guaranty signed by Codina in another form without such provision → messenger
took 2nd trip → Codina’s pretense that was deceived into signing another form not sustained
• Defendant not liable for damage that befell the cargo
o If a clean bill of lading had been issued and the plaintiff had not consented for the cargo to go on deck, the
ship's company would have been liable for all damage which resulted from the carriage on deck.
o The Paragon case, Van Horn v. Taylor, The Thomas P. Thorn case, Lawrence v. Minturn, and Gould v.
Oliver fully sustain the proposition that where the shipper consents to have his goods carried on deck he
takes the risks of any damage or loss sustained as a consequence of their being so carried.
o ITCAB the goods were injured during the voyage and solely as a consequence of their being on deck,
instead of in the ship's hold → the loss must therefore fall on the owner.
o The ship's owner might be held liable for any damage directly resulting from a negligent failure to exercise
the care properly incident to the carriage of the merchandise on deck.
▪ If it had been shown that, notwithstanding the stowage of these goods on deck, the damage could
have been prevented, by the exercise of proper skill and diligence in the discharge of the duties
incumbent on the ship, the owner might still be held.
▪ It is incumbent on the plaintiff, if his cause of action is founded on negligence of this character, to
allege and prove that the damage suffered was due to failure of the persons in charge of the cargo
to use the diligence properly incident to carriage under these conditions.
o ITCAB The complaint on the contrary clearly indicates that the damage done was due to the mere fact of
carriage on deck, no other fault or delinquency on the part of anybody being alleged → absence of any
allegation or proof of negligence, negligence cannot be attributed to the ship's employees in the matter of
protecting the goods from rains and storms.
o The carrier would be held liable in such case, notwithstanding the exemption contained in ¶ 19 →
negligence is neither alleged nor proved → no recovery of damages

DISPOSITION: Judgment appealed from REVERSED.