Doherr v. Houston, No. 115

No. 115 | 2d Cir. | Mar 9, 1904

TOWNSEND, Circuit Judge.

The shipment in question comprised 300 packages of firecrackers, each package containing 8 wooden boxes, each wooden box holding 40 packs of • firecrackers. The boxes were made of .quarter-inch lumber, nailed together, and each box was covered with oiled paper. The 8 boxes, covered with matting and bound together with rattan, constituted a package weighing about 50 pounds., There were other packages of firecrackers on board, belonging to other shippers. Upon arrival at destination a considerable number'of libel-ant’s packages were found to be broken, and their contents damaged. The court below .found that the.damage was due to negligent stowage.

The bill of lading contained the usual printed clause exempting the carrier from liability for “breakage,” or for “loss or damage arising from the nature of the goods or insufficiency of packages.” The bill of lading was indorsed in writing as follows: “Steamer not accountable for chafage or breakage to insufficiently protected property. Packages, firecrackers frail. Doherr, Grimm & Co.” The effect of said general printed provisions upon the respective rights and obligations of the parties was considered in a similar case by Judge Brown, in The Lennox, 90 F. 308" court="S.D.N.Y." date_filed="1898-11-12" href="https://app.midpage.ai/document/the-lennox-9336459?utm_source=webapp" opinion_id="9336459">90 Fed. 308. The case at bar, however, differs from The Lennox in some of its facts, and in having said special written contract indorsed on the bill of lading, by which the libelant agreed that, as the packages were frail, the steamer should not be accountable for breakage, provided they were insufficiently protected. Upon proof of breakage, the steamer, relying on said proviso for exemption from liability, has the burden of proof to establish that the damage was due to insufficient protection. The question presented, therefore, upon this appeal, is whether the respondents have sustained this burden.

Nordlinger, who sold the firecrackers to libelant, testified that the goods were properly packed for transportation by sea, and that none of the packages were broken on the trio from I Tong Kong to New York. The master of the Hilarius testified that the packages, on arrival at Buenos Ayres, looked as though they had subsided from their own weight; that “they were not the usual standing of cases to carry goods on board of a ship”; that “we generally have them in stouter cases”; that the cause of damage was “that the cases were frail, and that the ship had encountered boisterous weather, more or less, down through the southeast trades.” But on cross-examination, in answer to the question whether he had “ever carried firecrackers before in your experience,” he said: “I have carried fireworks, but never mentioned as firecrackers, except that.” The cartman' who carried part of the packages to the steamer, and assisted in unloading all of them, testified that the packages were not frail, and that they were delivered in good condition. The stevedore who had charge of the loading of the cargo testified that all of the packages were piled in one pile on the dock, and that a few of them broke from their own weight, but that they were fixed up so as to be as good as any other packages, and were all right when stowed. It does not appear whether the packages which broke were, or were not, part of libelant’s shipment. The sworn declaration of Pinchetti, who was in charge of the discharge of the Hilarius at Buenos Ayres, contained a statement that 45 bundles of the shipment in question “turned out with the covering, which was of matting, broken; and, in my opinion, this breakage had been caused through the inferiority of the covering, compared with that of the other lots.” The appraisers appointed by libelant reported that the general .aspect of the crushed packages indicated that the damage was caused by negligent stowage. It appears from the whole evidence that the packages were of the same character as those ordinarily used for shipping firecrackers. The testimony of the. master of the Hilarius shows that he was referring to fireworks, which are packed in strong wooden boxes, and that he knew nothing about how packages of firecrackers are visually packed. But even if his testimony were competent, it only serves to show that he considered the causes of damage to be that the cases were frail (a condition assented to and provided for in the bill of lading), and that the weather was boisterous (a claim which the court below properly found was unsupported by the evidence). In view of this evidence, and of the further evidence on which the court below found negligent stowage, we conclude that the respondents have failed to support the burden assumed by their special contract, of showing that the damage was due to insufficient protection of the packages.

The decree is affirmed, with interest and costs.