| Wis. | May 15, 1862
By the Court,
It is an admitted fact that there was a delay of twelve or thirteen days in transporting tbe six boxes of steel in controversy, from New York to Buffalo. Tbe testimony is very clear upon the point, that tbe usual time for transporting goods by tbe appellant’s line between those cities, is about three days. The boxes of steel were delivered to the carriers in New York on the 10th of November, to be transported, by steamboat on the lakes, to Eacine. It appears that the goods were shipped on a propeller from Buffalo on the 22d or 23d of the same month, and that the vessel was, within a few hours after leaving port, wrecked twenty miles or so from Buffalo harbor, and the goods lost. The circuit court found as a matter of fact, that the company did not exert such care and diligence in the transportation of the goods as to exonerate itself from liability for tbe loss, but was guilty of negligence. And in view of the conceded facts in the case, we think this is undoubtedly correct.
It is insisted by the counsel for the appellant, that there was a special contract, by which the carrier limited his responsibility as an insurer of tbe goods. The bill of lading stated that the owner assumed the risk of loss or damage by river or lake navigation, and all damage arising from unavoidable delay. The clause was in a private bill of lading
And the authorities are not uniform even upon the proposition that a carrier may limit or evade his common law liability by an express contract. There is great force in the argument that upon grounds of public policy they ought not to be permitted to do so. But that question is not involved in the case. For giving the appellant the full benefit of this condition in the bill of lading, we are still of the opinion that the evidence shows such a delay in transporting the goods from the city of New York to Buffalo, as to establish at least a 'prima facie case of negligence, and throw upon the company the burden of showing that the delay was unavoidable, and fairly within the exception. Surely the owner could not be said to'assume the risk of loss by lake navigation, except upon the condition that the goods were forwarded to Buffalo and shipped with all reasonable dispatch. Considering the season of the year, and the increasing liability of the lakes to severe and perilous storms as.winter approaches, no one could say that a delay of ten days was an unimportant circumstance. Indeed, the result showed that this delay in the shipment of the goods was attended with disastrous consequences. For the boat upon which they were shipped was wrecked in a few hours after leaving the harbor. Arid the burden of proof was upon the carrier to explain the cause of the delay, and show that it was unavoidable. This was not done, although a prima facie case of negligence was made out against the company.
Judgment affirmed.