by it. Such a clause neutralizes the force ofthe recital as evidence, and shifts tpe burden of vrooffrom the ship to in a case like the present. and requires him to show that he did not receive all of his property was,actually received by the ship. Eato'f!, v. Neumark,37 Fed. Rep. 375 j Matthiessen v. Gusi, 29 Fed. Rep. 794. When a discrepancy ,before, an, /loQep,tance by 'the owner, and' acceptance is'reis fused on that ground, anei'the carrier put to an action for the freight, it would incumbent upon t,he latter to prove'affirmatively a tender of delivery of' all the cargo actullJly received for the ownerj but this is not suoh a case. It appears itl evidence that the' two lots of iron were not kept distinct onboard Consequently,if there were any evithe libelants did not receive all they were dence·in the case to entitled to,'the ship would"not be exonerated by proviDg thlJ.t, whafwas delivered to both consignees was all the iron actually received on board. ,But in the absence ofsu9h :evidimce,or of any eVidence to show that a larger quantity was delivert:d to the other consignees thaubelongedto them, the libelants cannot It wllSthe duty of the master to keep the two lots distinct. If he had d<;>ne this; the libelantswQuld have had no reason to suppose that they did not receive all the iron that :belonged to them, and this suit probably would nothave.been broughtj but the libelants. cannot recover upon any theory of a breach of duty in this respect on the master's part, because they do not show that they 'sustained any:loss in consequence oLbis conduct. The libel by the master in the suit broup;htby him for demurrage against the present libelants aIleges':deUvery to, them of alLthe irOn received for thelDjand :the statements of the libel oannot be regarded as an admission tbat200 tons wereactull11y received on board the ship. The:Jibel is dismissed, without costs of the district court, but :with oosts of this. court.
New Yor"k, Novembe1!
Pa6oP. In a suit for t-lle loss ,of the contents of certain casks kegs during traUl!POrt,a. tlon on a vessel, the defense was that the 10s8 arose from leakage, for whIch by the terms of the bill of lading the carrier.wase:tempt foom liability. It appeared. that on tbe arrival at the ,portO'of thecal'go wastra!lsferred tp lighters in the employ of the vessel for delivery to the owners. 'W'lieiideliveredby·the light: era all the cask, sw,ere in, bad Order,' some: hB",i,ilK,' thelll staves broken at, the bfiJ<,E " e, their contelltsjwhich were liquid,aIso and others their hoops started and gone. The hoops of the kegs were started and some of them golie, and the. staves were 'broken.. None of the lightermenwere'Called as Witnesses by the vessel, but witIlesses for the v;esseltesti1l.ed that whe,n the casks ,and kegs wel'!'l delivered ,to the lighters some of the casks were empty, apparently from leakage. Bela,'that inasmuch as ,the apj?earabae of thecBllks;snd,kegswnen deUvered to theownera WBlilIloS l!0nsisten,t WIth the theory of, th' their PQutentshy l:1reakage ll,6 With the theory of the,loss by leakage' the, \io.rlien of proof. was upon the vessel to show ,Olea:,rly·that t,he, loss arose, from t,b,e uausej' ,t11a,t., ,having failed,', 'to,"OO1,1,t4,e ' I: lightermen as witnesses, or give any showmg, that the cargo was delivered by the lighters in the condition ,In whibh it 'was when reoeivildby' them, the vessel '.. ,was :not mronerated by a satisfactory viDdieatibn,. , " ". ' ,,', ,
SIIIPPlNG-ClA.RIUA.GB Ol' GooDs-NEGLIGENOlll.....B uRDBN OJ'
In . Mmil'alty· Libel for injury to cargo. court. 39 Fed:. Rep. 288. Arnold &0 Green, for appellants. Wing, Shoudy&o Putnam, for appellee. On appeal, from district
WALLACE, J. In December, 1877, the libelants, through their agents at New York, shipped at that port upon the steamship Barracouta, in good order, for transportation to Trinidad, Spain, 14 casks of stamnous chloride, containing 9,060 pounds, and 20 kegs of salts, containing 705 pounds. The steamer sailed December 17th, and, after encountering very severe weather on her voyage, reached Trinidad, December 29th, where ber cargo was transferred to lighters employed by the steamer, and by them taken to· the warehouse on the dock. After the cargo was landed at the warehouse, all the casks were found to be in more or less bad order. The staves of two were broken at the bilge, and were entirely empty. The others had their hoops started, and two of them had their heads bulged; and all were leaking, and more or less deficient in contents. Of the kegs, several were deficient in their contents, and in bad o:rder; the hoops being started, and some of them gone,and the staves broken. Thevalue of the missing contents was The libelants have brought this suit to .recover for their loss. The that the loss arose from leakage; for.which, by the terms of the bill of the steamer is exempt. The case. made by the libelants is met by the testimony fortha steame:r that, wIlen the cargo was taken out to be ferred to the lighters, two of the casks were fOUIJd to be empty, and the others .indi¢$.ted that their contents· had leaked through the seams; but the steamer's witneseoes also testify. that noneo! the casks or kegs presented any appearance ofexternal injury, neither the heads, staves, nor hoops being displaced·. The steamer's cooper was not called asa witJ?ess, and it does not appear that any cooperage was done to the casks. The theory for the steamer is that the liquid chlori,de.could not be safely transported in casks; that there is danger from expansion when it is shipped in wood if it is exposed to heat; and that the leakage arose from this cause, or because the casks were not sufficiently The testimony shows that the article is usually shipped in carboys, but it is also sometimes shipped, both by sea and rail, in strong casks. In the present ·cllse the casks wertJ selected by the manufacturer of the chloride, whowlls accustomed to ship it in casks, as especially and good oneS :fIor.. the purpose. None of the lightermen were called as witnesses for the steamer to corroborate the testimony of her own men respecting .thecondition of the and kegs when they were transferred to the lightElr$. .'. , When goods the custody of a common carrier ltre lost or damaged, the presumption is that the loss was occasioned by his default,. and. the burden hiln to prove that it arose from a cause for which h.e is not responslple. The on:tlJlj' therefore, is· the steamer to show that the presel;l.t,JossaroseJrom leakage; and,H the evidence is as consistent .Withthlit tbe,loss arQse
are entitled to recover. The .lighters were employed by the steamer; and, as she is responsible for the acts of the lightermen, it is immaterial, if· there was negligence, whether it took place while the goods were in charge of the lighters, or directly in charge of the steamer. The condition of the casks when they were landed in the warehouse was such as to denote that they had been roughly handled during the transit, or injured by external violence of some kind. Their appearance indicated a loss of the contents by rather than by leakage. Unless their condition was caused by external violence, it can only be accounted for by some chemical action of the contents, so powerful as to burst the heads, and break and displace the staves and hoops, because it is shown by the testimony for the steamer that. they were not injured by the rough weather of the voyage. But the kegs containing<salts were in nearly as bad a plight as the casks, ahdthere is no room.· for any such theory as to them, or for the supposition that the loss of their contents arose from leakage. Irthe testimony of the officers of the steamer is true, and the staves and hoops of the casks and ,kegs were intact when the cargo was taken out of the nold and transferred to the lighterS, the condition in which they were when landed is attributable to the carelessness of the lightermen. ,The circumstance that no cooperage was done to the casks,although the steamer customarily did it to cargo in need of it, is consisteilt with the truth of this testimony. Yet it seems hardly probable that the two empty barrels, from which they' say the contents had escaped, were injured byfhe lightermen more seriously, the staves being broken at the bilge, than the full barrels, which, with their oontents,weighed nearly 650 pounds; On the other hand, if their testimony in this behalf is untrue, their testimony as to the appearances of leakage is not entitled to credit. The steamer has not examined any of the Iightermen as witness.es, or produced any testimony with a view of sh()wing that the casks 'and kegs were delivered from the lighters in the same condition in which they were received by them. It was within the pow.er of the steamer to produce this testimony, and the failure to produce it suggests either that lhe lightermenwould not corroborate the testimony oUhe witnesses fOr the steamer, to the effect that the casks and kegs, when they left the steamer, were not broken, or that the lightermen cannot Batisfactorily explain how. the casks and kegS came to be landed in their damaged condition, if they Wl31'e not in thatcondition when received by them. It is not shown satisfactorily that the loss is attributable to any insufficiency of the casks. The case is one ill which the evidence of careless ha.ndling of the casks and kegs, somewhere during the transit, is such as to put upon the steamer the burden of''flill proof in exoneration ()f negligence. Full proof has not been given; and the question how the loss occurred, or, if any arose Jromleakage; how much, is left in !fit oltnnot be ascertained 'how much of the loss sustained by the libelants 'arose from leakage, and how much frOm the breaking of the c8E'ksandkegs by improper handling,theship must bear the whole loss. Incases like this, where goods which have been transported by the, carrier in fit' packages otreceptacles 'are delivered to the ownel' in a damaged <:ondition, the packages broken,
BRADLEY FERTILIZER CO. fl. THE
and the contents partly missing, although the latter may justly assumE', in the absence of information showing injury by vw major that his property has been carelessly dealt with, he cannot ordinarily prove the particulars of the carelessness, because these are only known to the carrier or his servants. It is right, therefore, under such circumstances, that the carrier should be required to vindicate himself thoroughly; and if be fails to produce his own servants or employes, whose testimony might clear up any doubtful points, he cannot complain if every presumption is taken against him. The libelants were led to believe, from the statements of the lightermen, that the casks and kegs were in the same condjtion when received 'on the lighters that they were in when delivered at the warehouse. They assumed, therefore, that their loss was probably caused by the irnproper stowage of their goods, and framed their libel principally upon this theory; but the averments in the libel are sufficient to entitle them to recover for negligence in any other respect. . A decree is ordered for the libelants for the sum of $1,082, with inter.est, and with costs of the district court and of this court.
(Oircuit Oourt, 8. D. New York. October 24, i889.)
$mPPING-DAMAGE TO CARGo-EVIDENCE.
On libel for damages to a cargo, it appeared that while the vessel was passing through. a heavy gale, during which sbe shipped great quantities of water, and' which injured her greatly by loosening timbers, etc.,which were found floating in her waist} it was discovered that a brass plate which covered a hole in the water-way, used lor bilge-pumps, and which was sunk flush with the top of the water-way, was gone. The plate had a movable cap, projecting about three-eighths of an incb above its surface, with edges beveled to one-eigbth of an inch. It was in plain view, and appeared to be in good order at the commencement of the voyage, but was not tested except by inspectibn, which was found to be such as might be expected of a reasonably prudent master or owner.. The plate had been screwed on, and the screw-holes were not smooth, black, or rusty. The surrounding wood was sound and white, and the screw-holes were ragged, showing that clear wood had come away. Such a plate is not unusual in vessels, and is considered a permanent fixture, and is not liable to deterioration by lapse of time. The vessel had been in use about 11 years..Ther was no direct evidence as to how the plate was lost. Held,. that its loss was caused by an accident, resulting from a danger of the sea, which oould not reasonably have been anticipated.