217 F. 805 | N.D. Cal. | 1914
Counsel’ having become involved in a long discussion of the rules of pleading and practice, a moment’s attention wilkbe given to such rules, in so far as applicable to the present «case.
“The ship to be in no way liable for any loss occasioned by breakage, pilferage, wastage, decay, or change of character, however caused, or for damage by steam, rain, or spray.”
Also:
“The ship not to be responsible for leakage, injury to or soiling of wrappers or packages, however caused.”
The shipment consisted of 619 cases of wines, each case containing labeled bottles incased in wrappers of straw. The damage proved by libelant consisted of the rotting of the straw, the staining of the labels, the staining' of the cases, the breaking of bottles, and the substitution of wooden blocks for bottles apparently abstracted. The breaking of the bottles, the staining of the cases, and the substitution of the blocks fall clearly within the exceptions of “breakage, pilferage, and injury to or soiling of packages.” The rotting of the straw wrappers, it is urged, does not fall within any of these exceptions; but I am of the opinion that it does fall either within the exception “injury to or soiling of wrappers” or “loss occasioned by decay.”
The libelant, having proved that these injuries are within the exceptions, cannot recover therefor in the absence of proof of negligence on the part of the libelee. The staining of the labels does not seem to fall within any of the exceptions. Tor the damage thus caused the ship must he held liable, if it appear that the labels were in good condition when received. No proof was offered on this point, other than the recital in the bill of lading, “shipped in apparent good order and well conditioned.” But the bill of lading also contained the recital, “Weights, contents, gauge, arid value unknown.”
The ship will be held liable for the damage caused libelant by the injury to the labels, and the case referred to the commissioner to ascertain and report the amount of the same.