No. 193 | 2d Cir. | Mar 26, 1907
The opinions of the three members of the court upon the questions presented in this case are so discordant that no good purpose will be served by any detailed statements of the reasons by which they reach their several conclusions. It will be sufficient to indicate what those conclusions are.
Evidently the conclusion of the district judge was arrived at by first determining upon whom the burden of proof rested; and it would seem that in determining that preliminary question he assumed that the bill of lading stipulated against damage by “sweat” and damage by "sea water.” The stipulations, however, are in fact against damage by “sweat” and damage by “perils [dangers and accidents] of the seas.” This court recently considered the question of burden of proof in the case of the Patria, where the exceptions were “perils of the seas” and “decay of any kind”; and expressed itself as follows:
“It is, no doubt, the rule, as appellant contends, that, when the damage is manifestly of the sort excepted, the ship Is under no obligation to show the promoting cause. To illustrate: If the exception is ‘damage caused by peril of the sea,’ and the cargo is landed drenched with salt water, it will be for the ship to show that the salt water found access to the cargo through a peril of the sea; bnt, if the exception is ‘damage by breakage,’ and the article arrives broken, the ship is not required to show how it got broken, although the libelant may show that negligence of those on the ship, or of those who stowed her or discharged her, caused the break, and, showing that, may recover. If the sole damage to the cargo in the case at bar were manifestly decay, and the language of the exception were, as the respondent states in his brief, ‘for decay caused by inherent defect,’ the ship would have the burden of showing that the decay was caused by inherent defect. If, however, the sole damage*366 was manifestly decay, and the language of the exception were, as given in the bill of lading, ‘not responsible for damages occasioned by decay of any kind,’ the appellant would be right in his contention, and, the cause of the decay not being shown to be negligence on the part of the ship, the libel should be dismissed.” The Patria, 132 F. 971" court="2d Cir." date_filed="1904-09-09" href="https://app.midpage.ai/document/the-patria-8755489?utm_source=webapp" opinion_id="8755489">132 Fed. 971, 972, 68 C. C. A. 397.
One member of the court as at present constituted is of the opinion that, where the damage is caused by sea water, the statement of the rule as given in the above excerpt is too broad; that under the English authorities (Hamilton v. Pandorf, 16 Q. B. D. 633, 12 App. Cas. 523, and subsequent cases) the shipowner is relieved when he shows that the damage is caused by sea water and there is no evidence that any fault, negligence, or unseaworthiness of the ship allowed it to enter; and that the American cases (Hooper v. Rathbone, Taney 519, Fed. Cas. No. 6,676; The G. R. Booth, 171 U.S. 450" court="SCOTUS" date_filed="1898-10-17" href="https://app.midpage.ai/document/the-g-r-booth-94928?utm_source=webapp" opinion_id="94928">171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234" court="SCOTUS" date_filed="1898-10-17" href="https://app.midpage.ai/document/the-g-r-booth-94928?utm_source=webapp" opinion_id="94928">43 L. Ed. 234) are in accord with this construction. Therefore, although not satisfied by the proofs that the damage was caused by sweat, he votes to affirm.
The other two judges adhere to the rule laid down in The Patria, but one of them is satisfied that the we:ght of evidence is to the effect that the damage was not caused by sea water but by sweat. Therefore he votes to affirm. The other judge is not persuaded by the evidence to a finding that the damage was caused by sweat, and believes that sea water was the cause. He does not think that, under the decision in The Patria Case, the shipowner need show just how the water got in, but that he must show sufficient stress of weather to warrant the inference that it came in because of the action of external causes. And, there being no evidence of such stress of weather, he votes to reverse.
The result is that the decree is affirmed, with costs.
NOTE. — Subsequently a reargument was ordered, and the question as to-burden of proof was certified to tbe Supreme Court.