37 F. 641 | U.S. Circuit Court for the District of Southern Ohio | 1889
The'evidence in this case clearly establishes that the butterine consigned by libelant to C. H. Dolson and Smith Bros. & Co. was of good quality, in good condition, find put up in good tubs or'packages, suitably and properly coopered. The bills of lading issued by the respondent admit that the consignments were received in good order, and were by it to be delivered to the consignees at New Orleans “in like good order,” “dangers of fire, navigation, explosion, and collision excepted.” It is also clearly shown by the testimony, and not controverted by the respondent, that when the butterine arrived at New Orleans it was in a damaged condition, unmerchantable, and its market value reduced about 50 per-cent. It is neither claimed by respondent, nor shown by the proof, that this loss or damage to the butterine, which occurred while in transit, was caused or occasioned by any one or all of the excepted dangers mentioned in the bill of lading. The defenses set up and relied upon hy respondent in the court below and in this court are: First, that libel-ant selected the place on the steam-boat where the packages of butterine should be stowed, and where the same were in fact stowed, as the coolest and best position on the boat; and, secondly, that the tubs in which the butterine was packed were insecure, and insufficient for the purpose, and that the loss or damage resulting to the butterine during its transportation to New Orleans was occasioned by the construction or cooper-' age of the tubs, in connection with the heat of the weather at the time of shipment and during the transit.
The proof does not establish that libelant or its agent selected the place of stowage for the freight; libelant’s agent only requested that it should be stowed in the coolest place on the boat, and the clerk (Jones) and mate (Harrison) both designated and selected the forward hold, near the hatches or breast-hooks, as being the safest and coolest place on the boat, assigning as a reason "for that opinion and that selection, “that the scuttle-hatch would be open, and a current of air would be passing through, which would keep that part of the hold cool.” But while this first ground of defense is not sustained, it does not appear that this selection was improperly made, or that respondent is chargeable with fault as to the place of stowage, since it is shown by the evidence that the for
In respect to the second ground of defense the burden of proof rests upon respondent to establish that the loss or damage to the butterine was caused or occasioned by the insecure and insufficient tubs in which it was packed, or by the defective cooperage of such tubs, as alleged in its .answer, in order to exempt itself from liability. It is not claimed in the answer that the loss or damage to the butterine complained of resulted from any.intrinsic or inherent quality of the article itself, hut only from the defective character of the tubs in which it was packed. Til the argument of the case, however, counsel for respondent have insisted that the loss or damage occurred from the character of the butterine, which it is claimed melted, and became liquefied, by reason of the temperature of the atmosphere, and in that condition, with defective coopering of the tubs, was lost or injured. Without stopping to consider whether respondent can have the benefit of this latter claim, not relied on in its answer, we may say that this, as well as the defense of defective cooperage of the packages, easts upon respondent the burden of proof, in order to escape liability for the loss or damage to the freight occurring while in transit. As stated in Hastings v. Pepper, 11 Pick. 43, cited with approval by the supreme court in Nelson v. Woodruff, 1 Black, 160, the well-settled rule of law is that, when loss or damage occurs to freight transported by a common carrier, “the presumption of law is that it was occasioned by the act or default of the carrier, and of course the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods for carriage, and for which he is not responsible.” It is also settled that a common carrier is not responsible for the ordinary evaporation of liquids occurring in course of transit, or for leakage arising from secret defects in the casks, which existed, but were not apparent, when received for carriage; nor for loss or injury occasioned by the peculiar nature of the article carried at a particular season of the year, such as that resulting from the fermentation of molasses, or the leakage of liquid lard from barrels, although the bill of lading issued therefor describes the freight as received in good order, and undertakes to deliver the same at destination in like good order; but in all such cases, when loss or damage does occur during the course of transportation, it is incumbent upon the carrier to establish by satisfactory proof that such loss or injury was occasioned by causes which he could not control, resulting from the nature and condition of the article,—as secret defects of the casks, barrels, or vessels, in which it is packed. Nelson v. Woodruff, 1 Black, 158-163, and eases there cited, fully illustrate these general principles. When the loss or damage results or is occasioned by any of the excepted perils or dangers mentioned in the bill of lading, the shipper must prima Jade hear the loss; but he may impose it-upon the carrier by proving negligence, or that it might have been avoided by the exercise of reasonable care, skill, and attention on the part of the carrier. Reasonable care, diligence, and skill
Now, testing the present case by the foregoing rules, the question, and the only 'question, presented is, has the respondent satisfactorily established its defense, either that libelant’s butterine was damaged by the insecure or defective cooperage of'the tubs containing the same, or that such damage resulted from the nature or quality of the butterine itself under the action of the weather, while being transported, so as to exempt it from liability for the injury? After a carefuhexamination of the evidence, we think neither of said defenses is sustained. The testimony shows no defective cooperage in the packages; on the contrary, it is affirmatively established that the tubs in which the butterine was packed 'and shipped were of good and proper material, were well made, and in all respects secure and sufficient. They were such as libelant habitually used in shipping butterine, and in all other instances, with perhaps one exception, proved secure and sufficient. They were in fact, as recited in the bill óflading, in good order when received by the respondent, but when" delivered they were in bad order and condition,—many of them were broken in at the heads or ends, and their contents entirely gone, showing that they had been subjected to rough handling, or improper stowage, by contact with, or pressure from, other freights. Mere melting or liquefaction of the butterine might have occasioned leakage, but would hardly have caused the breaking or the bursting in of the heads or ends of the tubs. In this connection it is important to notice that, while the place of storage may have been selected without fault, respondent has not shown or stated any fact or facts as to the stowage itself, or how the tubs of butterine were placed or deposited in respect to other freights, whether beneath or above such other freight; whether properly or improperly stowed
Ilow stands the case on the other defense relied upon in argument, that the loss or injury resulted from the nature or quality"of the butterine, under the action of the hot season of the year in which it was shipped? It is clearly shown that this buttorine was specially manufactured to stand the temperature of summer heat, both at Cincinnati and at New Orleans; that it was subjected to an actual tost of 92 deg. to 93 deg. of heat, and remained solid; that it was firm and solid when delivered to and received by the carrier; that other shipments of butterine, prepared in the same manner, and subjected to the same tests, and consigned to New Orleans, were made by libelant a few days before and a few days alter the consignment in question, and when the weather was just as warm, and that they all reached their destination in good order and condition, and were received by the consignees without complaint. In one instance,—a shipment made a week later,—the boat-was stranded on the way down, and subjected to unusual delay in arriving at New Orleans, yet the buttorine reached there safely, and in good order. It furthermore appears that other consignments of butterine similar in quality and cooperage were shipped by libelant on respondent’s boat on this same trip, consigned to Vicksburgh and New Orleans, which reached their destination in good order. The fact that other butterine of the same character and quality, manufactured and packed in the same way, went through the same trip on the same boat in good order, -without melting or becoming liquefied, goes far to establish that the injury on the lots consigned to Dolson and Smith Bros & Go. was not occasioned by the intrinsic quality or inherent defects in the nature of the butterine itself, developed by the state of the weather when shipped and during the transit. It certainly does not establish the defense relied on by respondent, nor bring the present case-within the decision of Nelson v. Woodruff, i Black, 158-163, where the lard was actually shipped in bad conditiony
