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A treatise on the law of carriers (Volume 4) online

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signee by the owners, has such a title as
enables him to libel the ship for damages
to the cargo. The Water Witch (U. S.)
1 Black 494, 17 L. Ed. 155.

18. Person making contract of ship-
ment. — Morris v. Wilson Sons & Co., 114
Fed. 74, 52 C. C. A. 22.

19. Sanbern v. Wright, etc., Lighterage
Co., 171 Fed. 449.

20. Agent selling on commission. — -
The Ask, 156 Fed. 678.

21. Applying part of claim for dam-
ages to extinguish claim for freight. —
The Water Witch (U. S.), 1 Black 494,.
17 L. Ed. 155.

22. Pleading in common-law actions —
Actions for nondelivery or misdelivery. —
See ante, "Pleading," §§ 880-882.

Actions for delay. — See ante, "Plead-
ing," §§ 961, 964.

Actions for loss or injury. — See ante^
"Pleading." §§ 1038-1051.

Actions against carriers of live stock.
— See ante, "Pleading," §§ 2067-2075.

Actions against connecting carriers. —
See ante, "Pleading," §§ 3792-3797.

3919 CARRIAGE OF PROPERTY. §§ 4314-4315

ant, its officers and employees, was not objectionable for indefiniteness of the
allegation of negligence. -^

In Admiralty. — The rules of pleading in the admiralty are exceedingly simple
and free from technical requirements. It is incumbent on the libelant to pro-
pound with distinctness the substantive facts on which he relies ; to pray, either
specially or generally, for the relief appropriate to them ; and to ask for such
process of the court as is suited to the action, whether in rem or in personam. ^^
Where a bill of lading provides that notice of any claim for loss or damage to
the property must be given to the carrier within a stated time after delivery, the
failure to give such notice is a matter of defense in a suit to recover for such
loss or damage, and performance of the requirement need not be alleged in the
libel. ^^ It is incumbent on the respondent to answer distinctly each substantive
fact alleged in the libel, either admitting or denying, or declaring his ignorance
thereof, and to allege such other facts as he relies upon as a defense, either in
part or in whole, to the case made by the libel. ^^^ The admiralty courts are gen-
erally very liberal in the matter of amendments. But amendments in matters of
substance should not be allowed on the hearing unless the justice of the case
requires it, and then to conform to the proof, and in no case should an amend-
ment be allowed on the hearing which would change the entire cause of action.^'^

§ 4315. Issues, Proof and Variance. — In Common-Law Actions. ^The

general rules as to issues, proof and variance apply in common-law actions against
carriers by water for less of or injury to property-* or for delay in transporta-
tion or delivery.-^

In the admiralty there are no technical rules of variance or departure. The
court decrees upon the whole matter before it, taking care to prevent surprise,
by not allowing either party to offer proof touching any substantive fact not al-
leged or denied by him.^*^ An allegation of negligence of the master will not
let the libelant in to prove unseaworthiness of the vessel. ^^

23. Sufficiency of allegation of negli- Actions against carriers of live stock.—

gence.— Marsden Co. v. Bullitt & Co., 72 See ante, "Issues Raised by Pleading,"

S. W. 32, 24 Ky. L. Rep. 1697. § 2076; "Variance," § 2078.

24. Pleading in admiralty. — Dupont, 29. Actions for delay. — See ante, "Is-
etc, Co. V. Vance (U. S.), 19 How. 162, sues. Proof and Variance," § 965.

15 L. Ed. 584. 30. In admiralty. — Dupont, etc., Co. v.

The same technical minuteness is not Vance (U. S.), 19 How. 162, 15 L. Ed.

necessary in a libel as in a declaration 584.

at common law. Only the essential facts On a libel by the consignee of goods

need be alleged, without regard to par- against a vessel for nondelivery of the

ticular forms" either in contract or tort. same — the defense being that the goods

New Jersey Steam Nav. Co. v. Mer- were subject to the lien of the vessel for

chants' Bank (U. S.), 6 How. 343, 12 L. freight and that the libelants improperly

Hd. 465. refused to pay it — any supposed miscon-

The admiralty court is not precluded duct of a bailee of the goods, not before

from granting the relief appropriate to the court, with whom the goods had been

the case appearing on the record, and stored on the refusal of the consignee to

prayed for by the libel, because the en- pay freight and take them away, is a

tire case is not distinctly stated in the question not involved in the pleadings,

libel. Dupont, etc., Co. v. Vance (U. S.), And if on such a state of pleadings the

19 How. 162, 15 L. Ed. 584. defendants prove their defense, they are

25. The Tampico, 151 Fed. 689. entitled to a decree in thfiir favor irre-
, T^ ^ i r^ -ir spectivc of any such supposed misconduct

/rf^'^^fr^j "l^o" '/t "itS^L " of the bailee. The Eddy (U. S.), 5 Wall.

(U. S.). 19 How. 162, 15 L. Ed. 584. ^g^^ ^g L. Ed. 486.

27. Amendment.— The Habil, 100 Fed. 31. Lawrence v. Minturn (U. S.), 17
120. How. 100, 15 L. Ed. 58; McKinlay v.

28. Issues, proof and variance. — See Morrish (U. S.), 21 How. 343, 16 L.
ante. "Issues, Proof and Variance," § 883; Ed. 100, explaining why the rule of plead-
"Issues, Proof and Variance," §§ 1052- ing was not endorsed in Lawrence v.
1055. Minturn, supra.

§§ 4316-4317 CARRIERS. 3920

§§ 4316-4326. Evidence— §§ 4316-4319. Presumptions and Bur-
den of Proof — § 4316. In General.' - — In an action against a carrier by water
for injury to goods the plaintiff must, in the first instance, show that the goods
w^ere dehvered to the carrier in an undamaged condition and were in a damaged
conditior. when dehvered to the consignee. And in an action for loss of prop-
erty the plaintiff has the burden of proving that the carrier failed to deliver the
goods to the consignee, but slight evidence will be sufficient to throw upon the
carrier the burden of showing delivery to the consignee.'^^ The plaintiff' makes
a prima facie case by proving that the goods were received by the carrier for
transportation and that it failed to deliver them according to contract.-''^ When
it is shown that goods, when delivered by a vessel which was the last carrier to
the consignee, were deficient in quantity, the presumption is that the missing
goods were delivered to such vessel, and the burden rests upon her to prove that
she delivered all that she received. •''•''' Where through bills of lading for boxes of
goods recited that the weight and quantity were unknown, the burden rests upon
the shipper to show their weight, when received, in order to hold the last carrier
liable for a claimed short weight in the quantity delivered. ^^^ But where bills of
lading for cargoes of phosphate specified the quantity, but contained the further
statements, "weight and quantity unknown," or "weight unknown," the burden
rests upon the shipowners to account for any discrepancy between the quantity
delivered and that specified.'^"

Necessity of Proving Negligence, Value of Lost Freight or That De-
fendant a Common Carrier.— See ante, "P'laintiff's Burden of Proof in Gen-
eral," § 1056.

Condition of Goods When Received by Carrier. — See ante, "Condition of
Goods Wlien Received by Carrier." § 1058.

Notice of Claim for Damages. — Where a bill of lading exempts the ship
from liability "for any claim, notice of which is not given before the removal of
the goods" and the failure to give such notice is set up by respondent as a defense,
the burden rests upon libelant to prove the notice, as a condition to the right of
recoven-. it being an affirmative fact peculiarly wathin his knowledge.^*^

Benefit of Insurance. — Under a provision of a bill of lading giving the car-
rier, in case of loss or damage to the property for which it is liable, the benefit
of "any insurance that may have been effected upon or on account of such prop-
erty," the burden rests upon the carrier, when sued for a loss to prove that there
was insurance, to the benefit of which it was entitled. ^^

§ 4317. Cause of Loss or Injury to Goods. — After the shipper has shown
that the goods were delivered to the carrier in good condition and that it failed
to deliver them or delivered them in a damaged condition the presumption is
Ihat the carrier was negligent and it has the burden of proving that the loss or
damage resulted from some cause for which it was not responsible.^^ Thus the

32. Presumptions and burden of proof. 36. The Seneca, 172 Fed. 370, 97 C. C.
— See ante, "Presumptions and Burden of A. 68, reversing 163 Fed. 591.

Proof," § SS4; "Presumptions and Burden 37, Planters' Fertilizer Mfg. Co. v. El-

of Proof," §§ 1056-1060. der, 42 C. C. A. 130, 101 Fed. 1001.

Actions for delay.— See ante, "Burden 38. Notice of claim for damages.— The

of Proof and Presumptions," § 967. Westminster, 127 Fed. 680, 62 C. C. A.

Actions against carriers of live stock. — 406.

See ante, "Presumptions and Burden of 39. Benefit of insurance. — Baker & Co.

Proof." §§ 2079-2086. v. Ne\V York, etc., R. Co., 168 Fed. 248,

33. See ante, "Plaintiff's Burden of Proof affirming 162 Fed. 496.

in General," § 1056. 40. Carrier must prove itself not re-

34. Prima facie case. — The E. M. Nor- sponsible.— The La Kroma, 138 Fed. 936;
ton, 15 Fed. 6S6; Mallory Steamship Co. Mallorv Steamship Co. v. Bahn Diamond,
V. Bahn Diamond, etc., Co. (Tex. Civ. etc., Co. (Tex. Civ. App.), 154 S. W. 282.
App.), 154 S. W. 282. See Holland v. Gammetl, 5 La. Ann. 705,

35. The Ghazee, 172 Fed. 368, 97 C. C. holding that after the damage is proved.
A. 66. the ship must show it did not happen on'




carrier has the burden of proving that the damage was due to a risk excepted in'
the bill of lading,^! such as perils of the sea.-^- Where damage was caused by
sea water, the burden rests on the vessel to show sufficient stress of weather tO'
warrant the inference that such water found access to the cargo through a j)eril
of the sea.^^ Where it satisfactorily appears that sea perils have been encountered
adequate to cause damage to a seaworthy ship, and there is general proof of
seaworthiness, the damage is presumptively due to such perils."* •* Extraordina-
rily rough weather warrants a finding of damage to cargo or baggage by sea
perils, provided proof of ordinary good stowage is first given by the ship ; but
this preliminary burden is on the ship, and can not rest in mere presumption. -^^
Under a bill of lading acknowledging receipt of goods in good order
and excepting dangers of the sea, the vessel has the burden of proof to show
tJiat damage to the cargo was occasioned by an expected peril,'*'^ or that it was
not in ffood order when received.'*'''

board. See ante, "Defendant's Burden of
Proof in General," § 1057.

Act of God. — The burden is on the car-
rier to show that the injury was by the
act of God, for which the company was
not liable. Clark v. Barnwell (U. S.), 12
How. 272, 13 L. Ed. 985; Transportation
Co. V. Downer (U. S.), 11 Wall. 129, 20
L. Ed. 160; The Edwin I. Morrison, 153
U. S. 199, 38 L. Ed. 688, 14 S. Ct. 823;
The Caledonia, 157 U. S. 124, 39 L. Ed.
644, 15 S. Ct. 537; The Majestic, 166 U.
S. 375, 41 L. Ed. 1039, 17 S. Ct. 597.

Peculiar nature of property. — Where the
goods shipped are alleged to have been
impaired by the dampness of the vessel
during passage to her port of delivery, the
burden of proof is upon the carrier to
show that the loss arose from the peculiar
nature of the property. Nelson v. Wood-
ruff (U. S.), 1 Black 156, 17 L. Ed. 97;
Clark V. Barnwell (U. S.), 12 How. 272, 13
L. Ed. 985; Rich v. Lambert (U. S.), 12
How. 347. 13 L. Ed. 1017.

The breaking of a greatly unusual num-
ber of bags in which a cargo of sugar
was shipped in discharging raises a pre-
sumption of negligence on the part of the
ship in handling, and, if unexplained, ren-
ders the carrier liable to the shipper for
the loss and expense resulting. The Asi-
atic Prince, 103 Fed. 676.

41. Excepted risk.— The Patria, 132 Fed.
97], 68 C. C. A. 397, affirming 125 Fed.
425; The Henry B. Hyde, 32 C. C. A. 534,
90 Fed. 114; Graham & Co. v. Davis &
Co., 4 O. St. 362, holding that the carrier
must show that proper care and skill
were exercised to prevent the loss.

With respect to the liability of a com-
mon carrier for loss or damage to goods,
while in his possession, the question as
to the burden of proof is not one of plead-
ing but of primary liability, and where
goods were received by a vessel in good
condition, but delivered in a damaged con-
dition, the ship has the burden of proof
to show that the injury was due to some
cause within the exceptions of the bill of
lading to avoid liability although the libel
may allege a specific ground of negligence.

The Medea, 179 Fed. 781, 103 C. C. A.
273, reversing decree, 173 Fed. 498.

42. Perils of sea. — The Rappahannock,
173 Fed. 829, reversed on another point
in 184 Fed. 291, 107 C. C. A. 74; The
Italia, 184 Fed. 366, modified in 187 Fed.
113, 109 C. C. A. 33; The Frey, 106 Fed.
319, 45 C. C. A. 309; Insurance Co. v.
Easton, etc., Transp. Co., 97 Fed. 653; The
Westminster, 127 Fed. 680, 62 C. C. A.
406, affirming 116 Fed. 123; Pacific Coast
Steamship Co. v. Bancroft-Whitney Co.,
94 Fed. 180, 36 C. C. A. 135, affirming The
Queen, 78 Fed. 155, and reversed on an-
other point in The Queen of the Pacific,
21 S. Ct. 278, 180 U. S. 49, 45 L. Ed. 419.

43. The Folmina, 153 Fed. 364, 82 C. C.
A. 440, affirming 143 Fed. 636.

Where goods are returned to the port
of shipment greatly damaged by sea
water, a presumption arises of negligence
on the part of the carrier. The Queen, 78
Fed. 155, decree affirmed in Pacific Coast
Steamship Co. v. Bancroft-Whitney Co.,
94 Fed. 180, 36 C. C. A. 135, which is re-
versed on another point in The Queen
of the Pacific, 21 S. Ct. 278, 180 U. S.
49, 45 L. Ed. 419.

44. The Sandfield, 79 Fed. 371, affirmed
in 92 Fed. 663, 34 C. C. A. 612.

45. The Kensington, 88' Fed. 331, decree
affirmed in 94 Fed. 885, 36 C. C. A. 533,
which is reversed on other grounds in 22
S. Ct. 102, 183 U. S. 263. 46 L. Ed. 190.

46. Acknowledging receipt of goods in
good order. — The Lockport, 197 Fed. 213;
Argo Steamship Co. v. Seago, 101 Fed.
999, 42 C. C. A. 128; The Presque Isle, 140
Fed. 202.

Where cotton was receipted for by a
ship as in good condition, but was in bad
condition when delivered at destination,
the vessel is prima facie liable for the in-
jury, and has the burden of proof to es-
tal)lish its exercise of proper care. In-
surance Co. V. Leyland & Co., 191 Fed.
161, 111 C. C. A. 641, reversing judgment,
171 Fed. 524.

47. Argo Steamship Co. v. Seago, 101
h'cd. 999, 42 C. C. A. 128,

^§ 4317-4318 CARRIERS. 3922

Where damage to cargo was prima facie within the exceptions in the
bills of lading, the burden is on the shipper to show that the loss occurred
through the carrier's negligence.^s Thus, to entitle a shipper to recover for
damage to cargo from heat when liability for such damage is excepted in the
bill of lading, he has the burden of showing that such heat was caused by the
ship's negligence.-'^ Where a cargo shipped under bills of lading containing ex-
ceptions of damage by collision was damaged as the result of a collision, wherein
the other vessel was clearly shown to be guilty of inexcusable fault, it was held
that in order to hold the vessel which carried the cargo liable, the burden was
on the plaintiff to defeat the operation of the exception in the bills of lading by
proof of such negligence on her part as would justify a decree against her if
sued alone.-''"

Insufficient Protection. — Where a bill of lading for packages of firecrackers
contained the usual printed clause exempting the carrier from liability for break-
age, or for loss or damage arising from the nature of the goods or insufficiency
of the packages, and also contained a stipulation signed by the shipper to the
effect that the steamer was not accountable for chafage or breakage to insuffi-
ciently protected property, and that the packages were frail, on proof of break-
age of the packages the carrier, relying on such indorsement for exemption, had
the burden of proof to establish that the damage was due to insufficient pro-

§ 4318. Stowage of Goods. — Where the bill of lading under which mer-
chandise is shipped exempts the carrier from liability for damage to the goods
"if properly stowed," if the goods are damaged the burden of proving proper
stowage is on the carrier.^^ Where a bill of lading contains exceptions in behalf
of the vessel of breakage and leakage and of dangers of the sea, and the cargo
owner maintains that the true cause of injury to the cargo was improper stow-
age, the burden of maintaining this proposition rests on the cargo owner.'^^ And

48. Where damage within exceptions in a loss resulting from leakage and break-
bill. — The Citta Di Messhia, 169 Fed. 472; age the shipper has the burden of proof
The Lennox, 90 Fed. 308; The Henry B. to show negligence, which can not be in-
Hyde, 32 C. C. A. 534, 90 Fed. 114. ferred from the fact alone that the loss

If a loss is manifestly due to a risk ex- was greatly in excess of the normal, es-

cepted in the bill of lading as from break- pecially where second-hand barrels were

age or decay, which are excepted gen- used, some of which had been patched,

erally, the ship need not show the cause The Konigin Luise, 185 Fed. 478, 107 C.

of the breakage or decay, but the cargo C. A. 578, reversing decree 173 Fed. 811.

owner can only recover by proof of neg- In the absence of some fault such as

ligence. The Patria, 132 Fed. 971, 68 C. negligent stowage, the burden is on the

C. A. 397, affirming 125 Fed. 425. libelant to show that the damage might

Breakage or leakage. — Under a libel al- have been prevented by reasonable skill

leging injury to goods in shipment from and diligence on the part of the servants

breakage, where the bill of lading ex- of the vessel. Lazarus v. Barber, 136 Fed.

empted the carrier from liability from 534, 69 C. C. A. 310, affirming 124 Fed.

breakage, the burden is on the libelant to 1007.

show that the breakage occurred through 49. Damage from heat. — The Good

negligence. The Henry B. Hyde, 90 Fed. Hope, 197 Fed. 149, 116 C. C. A. 573, af-

114, 32 C. C. A. 534, affirming 82 Fed. firming 190 Fed. 597; The Baralong, 172

681; Wright v. Grace & Co., 203 Fed. 360. Fed. 220, 97 C. C. A. 24.

Where a shipment of olive oil in bar- 50. Damage by collision. — The Victory,

rels was made under a bill of lading con- ig 3. Ct. 149, 168 U. S. 410, 42 L. Ed. 519,

taining a clause that "the owner is not reversing 68 Fed. 395, 15 C. C. A. 490.

responsible for * * * leakage, break- ^^ Insufficient protection.— Doherr v.

age, land damage or any other mjury re- Houston, 128 Fed. 594, 64 C. C. A. 102, af-

sulting from the natural condition of the filming 123 Fed. 334.

goods shipped or their deficiency of pack- ..o, ?, , r •

ing not externally recognizable," but also Sf- burden of provmg proper stowage,

had a clause, "not accountable for leakage —Montague v. The Isaac Reed, 82 Fed.


or breakage" stamped across it in large
letters in different colored ink, the latter
clause prevails over the one in the printed
form, and to recover from the vessel for A vessel which was new, properly con

letters in different colored ink, the latter 53. Crowell v. Union Oil Co., 107 Fed.

clause prevails over the one in the printed 302, 46 C. C. A. 296.



;§ 4318-4319

where a ship during the voyage encountered storms of such violence as to rea-
sonably account for the opening of her deck seams and the consequent damage
to her cargo from water, the burden of proof rests upon the cargo owner to
estabh'sh a claim made by him that improper stowage of the cargo caused or
rontributed to the strain on the vessel's deck and the resulting injury thereto. ^^

Stowage on Deck. — Where, in an action on a bill of lading for the loss of
goods shipped by a vessel of the defendant, the defendant relies on the defense
that the goods were inflammable and therefore within an exception which per-
mitted such goods to be stowed on deck at the owner's risk, the burden of proof
is on the defendant to estabhsh this defense.^-''

Where a vessel is not a common carrier, proof of loss of cargo alone
does not cast upon her the burden of proof to show proper stowage; but the
cargo owner must prove the negligence affirmatively.^^

§ 4319. Seaworthiness or Fitness of Vessel. — Where the proof shows
•damage to the cargo, the burden is cast upon the ship to establish the fact of
seaworthiness, or to show due diligence in ascertaining whether or not she was
in fact seaworthy, and in making her so at the beginning of the voyage.^" And
where the cargo is lost by the sinking of the ship the burden of proving sea-
worthiness at the beginning of the voyage rests upon the shipowner. ^^ Where
disaster overtakes a vessel soon after the beginning of her voyage, without stress
of weather or other adequate cause appearing, the presumption is that she was
unseaworthy when the voyage commenced, ^^ and the burden rests on the owner

structed and in all respects seaworthy can
not be held liable for leakage under bills
of lading exempting her from loss on that
account and from weather, heat, and perils
of the sea, unless it is affirmatively shown
that there was negligence in the stow-
age which it should reasonably have been
anticipated would cause such damage, and
the libelant must make out a case show-
ing the cause of injury with sufficient
clearness before the burden is cast upon
the vessel to show that the exemption is
broad enough to cover the damage. The
Oceana, 171 Fed. 172.

54. Where vessel encounters storms. —
The Musselcrag, 125 Fed. 7Sn.

55. Stowage on deck. — Tower Co. v.
Southern Pac. Co., 184 Mass. 472. 69 N.
E. 348.

56. Where vessel not common carrier. —
The Rokeby, 202 Fed. 322.

57. Seaworthiness of vessel. — The Ninfa,
1.50 I'^ed. .512. .See Tlie Fdwin I. Morrison,
15;) U. S. 199, 38 L. Ed. 688, 14 S. Ct. 823;
The Southwark, 191 U. S. 1, 24 S. Ct. 1,
48 L. Ed. 05; Mallory Steamship Co. v.
Bahn Diamond, etc., Co. (Tex. Civ. App.),
154 S. W. 282.

Defective fitting of port. — Where a
cargo is injured ]>y a leak caused by the
defective fitting of a port, the burden is
nn the ship to show that the port was
tight at the time of sailing. The Phrcnicia,
99 Fed. 1005, 40 C. C. A. 221, affirming 90
Fed. 116.

The breaking of a section of cast-iron
pipe extending from engine rooni of a
steamship to a tank in the forepeak along
the flr)nr of the hold, allowing water to
escape into tlie ludd and injure the cargo

4 Car— 52

therein, in the absence of evidence to the
contrary, authorizes an inference that the
ship was unseaworthy as to the cargo
placed in the hold at the beginning of
the voyage, by reason either of defects
in the pipe or the boxing, and the bur-
den rests upon the vessel to overcome
such inference. The Indrapura, 190 Fed.

58. The Oneida, 128 Fed. 687, 63 C. C.
A. 239, reversing 108 Fed. 886.

59. Disaster soon after beginning voy-
age.— The Listie, 197 Fed. 1022; Steamship
Wellesley Co. v. Hooper & Co., 185 Fed.
733: The Arctic Bird, 109 Fed. 167; Pacific
Coast Steamship Co. v. Bancroft-Whitney
Co., 94 Fed. 180, 36 C. C. A. 135, affirm-
ing The Queen, 78 Fed. 155, and reversed
on another point in The Queen of the
Pacific, 21 S. Ct. 278, 180 U. S. 49, 45 L.
Ed. 419. See Sanbern v. Wright, etc,
Lighterage Co., 171 Fed. 449, affirmed in
179 Fed. 1021, 102 C. C. A. 666.

Proof that a vessel within a few hours
after leaving port, and before encounter-
ing any peril of the sea, sprung a-leak
from defective butts in her bottom, and
that, in addition, her steam pump was not
in good working order, and broke down
when put in use, raises a presumption that
she was unseaworthy at the beginning of
the voyage, which is not rebutted by evi-
dence merely of previous diligence. Caro-
lina Portland Cement Co. 7'. Anderson, 186
]''cd. 145, 108 C. C. A. 257.

If a defect without any apparent cause
develops, it is to bt- ])resunie(i it existed
when the service Ijcgan. Work ?'. f^eath-
ers, 97 U. S. 379, 24 L. i'.d. 1012; The

§§ 4319-4320 CARRIERS. 3924

to avoid liability for cargo lost or injured to overcome such presumption by
showing affirmatively that the ship was seaworthy.^*^ Where a barge careened

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