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and dumped its cargo while lying in a sheltered basin without known external
cause ^^ or a lighter capsized when the water was still, there being no other
explanation than that there was an ordinary swell from a passing steamer,*^^ there
is a presuniption of unseaworthiness. A provision of a bill of lading exempting
the carrier from liability for loss or damage occasioned by unseaworthiness, pro-
vided the owners had exercised due diligence to make the vessel seaworthy,,
leaves upon the owners the burden of proving such due diligence, which includes
thorough and careful inspection.^-^ Where it appears that a boat, sinking without
apparent cause, was actually seaworthy, the presumption of unseaworthiness
from the sinking is overcome.*""* Storms encountered during a voyage, although
they may have been an adequate cause for an injury to the vessel resulting in
leakage and damage to the cargo, are not sufficient to relieve the carrier from
the burden of proving seaworthiness, where they were not of such an unusual
character but that they should have been anticipated, and it is not shown that
the injury could not have been provided against by proper inspection and care
with respect to the part injured before sailing, and such inspection was not made,
nor care exercised.**^ The fact that the beams of the main hatch of a vessel had
been cracked some time previous to a voyage, and on the discharge of her cargo,
at the end of the voyage, were found to be in worse condition and her deck to
have sunk in consequence, where the vessel encountered a hurricane during the
voyage, which would account for her condition at its end, did not overcome the
presumption of her seaworthiness when she sailed, arising from the fact that the
beams had been repaired and strengthened, and that her classification had been
kept up thereafter on repeated surveys, and had not expired. ''*" The fact that
a single rivet, among many thousands used in the construction of a vessel's hull,
was not as strong as the average, and parted under the stress of extraordinary
stormy weather, does not raise a presumption of unseaworthiness, rendering the
owner liable for a resulting damage to the cargo.^"

When Burden on Shipper. — The warranty that a ship is fit at the begin-
ning of a voyage to safely carry the cargo received by her, which is implied
where the bill of lading is silent, can not be implied if the parties have contracted
otherwise ; and in such case the burden of proof is not upon the carrier, but
upon the shipper, who must show the carrier's negligence to entitle him to re-
cover for loss or damage to cargo.^^

§ 432 0. Necessity of Producing- Bill of Lading-. — See ante, "Necessity

Soiithwark, 191 U. S. 1, 48 L. Ed. 65, 24 absence of evidence establishing some

S. Ct. 1. other adequate cause. Forbes v. Mer-

Vessel sinking at dock. — A vessel some chants' Exp., etc., Co., 11 Fed. 796.

50 years old, which had been used as a 60. Steamship Wellesley Co. v. Hooper

steam propeller until she had become un- & Co., 185 Fed. 7.3.3.

fit for such service, and afterwards con- 61. Careening of barge. — United States

verted into a freight barge, sank at a dock Metals Refin. Co. v. Jacobus, 205 Fed. 896,

with her cargo during the night, after she 124 C. C. A. 209.

had been loaded. The evidence showed 62. Capsizing of lighter. — Insurance Co.

that the immediate cause of her sinking v. North German Lloyd Co., 106 Fed.

was a leak due to the springing of a plank 973, affirmed in 110 Fed. 420, 49 C. C.

in her hull, the spikes which held it hav- A. 1.

ing become loosened. The only peril to 63. The Friesland, 104 Fed. 99.

which she was subjected was that from 64. When presumption overcome. — The

the swells caused by passing vessels, and America, 174 Fed. 724.

that was one which was usual and ordi- 65. The Aggi, 93 Fed. 484.

nary, and was withstood by other vessels 66. The Guadeloupe, 92 Fed. 670.

at the dock without injury. Held, that the 67. The Sandfield, 92 Fed. 663, 34 C. C.

presumption arising from such facts was A. 612, affirming 79 Fed. 371.

that the barge was unseaworthy, and that 68. When burden on shipper. — The

her sinking was due to that cause, in the Tjomo, 115 Fed. 919.



3925



CARRIAGE OF PROPERTY.



§§ 4320-4321



of Producing Bill of Lading," § 885 ; "Necessity of Producing Bill of Lading/'
§ 106L

§ 4321. Admissibility of Evidence. — The rules governing the admissibil-
ity of evidence in actions against common carriers generally apply in similar
actions against carriers by water.*^^ In an action to recover for damage to cargo
from leakage of the vessel, evidence that directions as to the manner of loading
were given the agents of the vessel by libelant, which directions were not followed,
was competent.'" An allegation that the vessel was wrecked and the merchan-
dise lost on account of defendant's negligence, and without fault on plaintiff's
part, raises the issue of defendant's negligence, and authorizes the admission of
evidence that the vessel was being operated without a full complement of of-
ficers, recjuired by statute.'''^ In an action by a shipper against a carrier for loss
of oil clothing (shipped under a bill of lading providing that inflammable goods
shall be transported if the carrier choses, on deck or elsewhere, and shall be at
the shipper's risk), which goods were carried on the deck of defendant's steamer,
became loose during a storm, and were thrown overboard to save other goods
from damage and to prevent their interfering with the navigation of the vessel,
defendant, by introduction, without objection, of the deposition of the steamer's
captain that the oil clothing was stowed on deck because of their inflammable na-
ture, laid a foundation for introduction of evidence to show a general usage that
because of its character it was customary among steamship companies to stow
oil clothing on deck, and to class it as inflammable goods.'- And where in such
action a custom treating oil clothing as inflammable was shown, evidence that the
shipper's oil clothing was difiicult to ignite, and on ignition did not burst into
flame, but only charred, was properly excluded.'''^

Parol Evidence. — Evidence of an oral agreement made at the time the con-
tract of transportation was made to vary and contradict it, is incompetent.' ■* And



63. Admissibility of evidence — Actions
for nondelivery or misdelivery. — See ante,
"Admissibility of Evidence," § 886.

Action for loss or injury. — See ante,
"Admissibility of Evidence," §§ 1062-106(3.

Actions for delay in transportation. —
.'^ee ante, "Admissibility of Evidence,"
§ 968.

Actions against carriers of live stock. —
See ante, "Admissi1)ility of Evidence,"
§§ 208 7-2094.

Actions against connecting carriers.—
See ante, "Admissibility of Evidence,"
§5? 3S02-:i804.

Evidence as to authority of agent. — On
an issue as to the apparent anthority of
a carrier's agent, B., to receive money for
transportation from Boston to Finland,
evidence that on a previous occasion an-
other had gone to the same office whert
such business was transacted, and was di-
rected by defendant's superior agent to B.,
to transact her business with, and that she
gave B. $20 and had purchased certain
tickets from Finland to America, which
she directed B. to send to Finland to her
brother, and that the brother received the
money and tickets, and that B.'s letters
forwarding the tickets and money were
copied in the letter books in the office,
and an advertisement in which B. was de-
scribed as the manager of defendant's Fin-
nish department, was admissible as bear-
ing on B.'s authority and defendant's



knowledge of what he had done. Rinta-
maki v. Cunard Steamship Co., 91 N. E.
230, 20.5 Mass. 115.

70. That directions not followed. — Don-
aldson V. Perry Co., 138 Fed. 643, 71 C.
C. A. 93.

71. That vessel without full complement
of officers.— Rev. St. § 4463 (U. S. Comp.
St. 1901, p. 3045); Northern Commercial
Co. V. Lindblom, 162 Fed. 250, 89 C. C.
A. 230.

72. General usage. — Tower Co. v. South-
ern Pac. Co., 69 N. E. 348, 184 Mass. 472.

73. Tower Co. v. Southern Pac. Co., 195
Mass. 157, 80 N. E. 809.

74. Parol evidence. — Where a contract
recited that second parties were desirous
to ship by vessel certain lots of hard lum-
ber, and the first party agreed to carry
on his vessels any and all of the lumber,
as may be desired by the parties of. the
second part, evidence that at the time the
contract was executed it was understood
that the second parties had aiiout a cer-
tain quantity of lumber, which it was ex-
pected by both parties would l)e shipped
under the contract, or that they orally
promised to ship the same on the vessels
of the first party, is inadmissible to show
that they were bound l)y tlic contract,
since by its express terms they were
given the option to ship "any or all" of
it thereunder. Dennis v. Slyfield, 117 Fed.
474, 54 C. C. A. 520.



§§ 4321-4322 carriers. 3926

where the only exception specified in the bill of lading is "dangers of the river,"
parol evidence can not be received to show a custom among the persons who
were engaged in navigating the river, which exempted the owners of the boat
from liability for a loss caused by the forcible and illegal seizure of the boat by
a body of armed men, without fault or neglect on the part of the officers or
crewJ^ Though parol evidence of an agreement that goods shipped under a
clean bill of lading should be carried on deck is inadmissible,"^*^ yet such evidence
may be received to show a supplemental agreement for a particular mode of
stowage under deck.''''

Documentary Evidence. — On an issue as to the authority of an agent to
receive money for transportation by a carrier, the receipt for the money, the
agent's card showing that he was acting as agent for defendant, and not on his
owni account, and untranslated letters in Finnish, copied in defendant's letter
book, relating to its business, were admissible as bearing on the extent of his
apparent authority and defendant's knowledge or means of knowledge of his
acts.'s

Illegal Custom. — In an action against a ferryman for the loss of a horse and
wagon by his neglect to put up the chain at the end of his boat, he can not give
in evidence a custom at other ferries on the same river to put up the chain at the
request of passengers, and not otherwise."^

Evidence as to Damage. — \\'here a shipment of coffee was damaged on the
voyage through the fault or negligence of the* carrier, who had knowledge of the
damage after its arrival, the consignee was not bound to sell it at public sale or
on public notice, but in a suit against the ship to recover the damage may show
that its market value in its damaged condition was no greater than the price for
which it was sold at private sale.^*^

§§ 4322-4326. Weight and Sufficiency of Evidence— § 4322. In Gen-
eral. — The general rules as to weight and sufficiency of evidence in actions
against common carriers generally apply in similar actions against carriers by
water. ^1 A ship may sustain the burden of proof resting on her to show that

75. The Belfast, 40 Ala. 184. 88 Am. Dec. ton, 127 Fed. 554, 63 C. C. A. 109, affirm-
761, overruling Steele v. McTyer, 31 Ala. ing 116 Fed. 60.

667, 70 Am. Dec. 516. Evidence held to show apparent author-

76. The Delaware (IT. S.), 14 Wall. 579, ity of agent.— Rintamaki ?■. Cunard Steam-
20 L. Ed. 779; The Star of Hope, Fed. ship Co.. 91 N. E. 220, 205 Mass. 115.
Cas. No. 13,313, 2 Sawy. 15, affirmed in Evidence insufficient to show damage
17 Wall. 651, 21 L. Ed. 719. the result of defective coverings on goods.

77. The Star of Hope, Fed. Cas. No. — Doherr v. Houston, 123 Fed. 594, 64
13,313, 2 Sawy. 15, affirmed in 17 Wall. C. C. A. 102.

651, 21 L. Ed. 719. Evidence showing that sufficient notice

78. Documentary evidence. — Rintamaki of arrival and reasonable time to take
v. Cunard Steamship Co., 205 Mass. 115, charge of freight not given to consignee.
91 N. E. 220. • — Rosenstein v. Vogemann, 184 N. Y. 325,

79. Illegal custom.— Miller v. Pendleton 77 N. E. 625, affirming 92 N. Y. S. 86, 102
(Mass.), 8 Gray 547. See Lewis v. Smith, App. Div. 39.

107 Mass. 334. Evidence insufficient to rebut presump-

80. Evidence as to damage. — United tion of negligence. — A cargo of sugar was
Steamship Co. t. Haskins, 181 Fed. 962. damaged on a voyage from Java to Bos-

81. Weight and sufficiency of evidence. ton by sea water which entered around
— See, generally, ante, "Weight and Suf- loosened bolts securing in place a wooden
ficiency of Evidence," § 887; "Weight and scroll work under the ship's figure-head.
Sufficiency of Evidence," § 969; "Weight and extending some feet from the prow on
and Sufficiency." § 1084. either side of the vessel. These bolts ex-
Actions against carriers of live stock. — tended through the ship's plates, being

See ante, "Weight and Sufficiency," §§ fastened by nuts on the inside, and were

2095-2103. in such position that water entering

Evidence insufficient to establish negli- through the holes would readily flow into

gence. — The San Paulo, 207 Fed. 51, 124 the fore peak, where the sugar damaged

C. C. A. 611. was stowed. The action of the seas upon

Evidence insufficient to show that valves the scroll work, especially in rough

closed when steamer sailed. — The Mani- weather and when the ship was heavily



3927



CARRIAGE OF PROPERTY



4322



cargo damage was due to a cause for which she is not Hable by circumstantial
evidence as to the manner in which the water causing the damage entered the
hold, and in the absence of direct evidence the court is justified in adopting her
theory in that respect, where the facts and circumstances shown are consistent
with such theory and not consistent with any other. '^^ ^\'here, in an action for
damages to merchandise alleged to have been produced by sea water caused by
a leakage of the vessel, the preponderance of the evidence did not show that the



laden, would naturally tend to gradually
loosen the nuts on such bolts. The bolts
had not been inspected for two years, and
there was no evidence showing whether or
not the nuts were loose at the beginning
of the voj^age, except the testimony of
the officers that there was no leakage on
the previous voyage. On the voyage the
ship was heavily laden and encountered
some heavy weather, but not more than
should have reasonably been anticipated.
Held that, the evidence was not sufficient
to overcome the presumption of fault
which arises against the carrier when
goods are damaged during their transpor-
tation. The Aggi, 107 Fed. 300, 46 C. C.
A. 276.

When damage occurred. — Evidence held
to require a finding that wool was injured
by being stored with wet wool on the
lighter or steamer that carried it to desti-
nation, and not by being negligently
stored while waiting terminal transporta-
tion. Sanbern v. Panama R. Co., 205 Fed.
348. 123 C. C. A. 423.

The new steamer P., on her first voy-
age from Hamburg to New York, when in
midocean, on January 25th, was discovered
to have a leaking port, by which cargo in
compartment No. 4 was damaged. The
port could not be screwed tight, so as to
stop the leak, until the outside iron blind
was removed. When that was removed,
the port was screwed water-tight. Upon
arrival in New York the brass ring of
the glass door was found to be bent in-
ward at the top and bottom 1/16 of an
inch, on a vertical axis. The port in ques-
tion was near the bridge, about 2^ feet
above the water line, and 175 feet aft of
the stem. A few bolts were found a little
loosened about this port, and in its vicinity,
and there were some scratches there; but
no bolts were loosened, nor was damage
done, for 75 feet or upward forward of
the port, nor until about abreast of the
foremast, where there was again some
damage on the same starboard side of the
ship, which arose from contact with fen-
der on entering Havre or departing. The
expert evidence showed that violent con-
tact with the side of the ship where tlie
port was might cause the glass door to be
sprung, or the blind to catch, as it was
found when the leak was discovered.
There was no proof of such inspection at
Hamburg before the ship sailed as would
show the port to have been then water-
tight. Held, that the evidence failed to
show that the leak was caused after sail-



ing, by contact at Havre, and hence the
ship was liable. Decree 90 Fed. 116, af-
firmed in The Phoenicia, 99 Fed. 1005, 40
C. C. A. 221.

Evidence not showing that fire caused
by overheating flue. — The donkej^ boiler
of a steamship was directly under the
deck where a portion of the cargo was
stored. The top of the boiler was 10 or
12 feet above the fire, and a flue in its
furnace extended from its top to the main
l^oiler funnel, its nearest point to the roof
being 19 inches therefrom. The entire
shell of the boiler contained water, and
there were four transverse water tubes in
the interior. Expert witnesses testified
that it would be almost impossible for the
heat in the boiler to make the flue red-
hot; and that such a fire would cause the
steam to explode the boiler, if the safety
valve did not lift, and warn the men. The
use of the boiler did not require a heat
sufficient to overheat the flues, and to
maintain such a heat was contrary to in-
struction, and the testimony of witnesses
who saw the flue before and after the fire
indicated that it had not been red-hot. A
former employee of the steamship, who
had been discharged for bad conduct, and
who was shown to have sworn falsely as
to other matters tending to discredit the
owners, testified that the flue was red-hot.
The cargo was on planks on an iron deck
over the boiler room. Between the flue
and the deck were three baffle plates,
leaving three 3-inch air spaces and one
lOJ/2-inch air space between the flue and
the roof.* Experts testified that the deck
could not have become hot enough to set
fire to the cargo. Held not sufficient to
warrant a finding that the cargo caught
fire as a result of the flue becoming over-
heated. Decree 94 Fed. 206, affirmed in
The Strathdon, 101 Fed. 600, 41 C. C. A.
515.

Evidence held to show that damage due
to water pumped on lighter by steamer. —
Johnstone v. Furness, etc., Co., 172 Fed.
1016, affirmed in 179 Fed. 1019, 102 C. C.
A. 664.

Evidence showing that injury caused by
brine leaking from citron barrels negli-
gently stowed. — Ivazarus v. Barber, 136
Fed. 534, 69 C. C. A. .•{10. affirming 124
Fed. 1007.

82. The Wildcroft, 130 Fed. 521, 65 C. C.
A. 145, affirmed in McCahan Sugar Refin.
Co. V. Steamship Wildcroft, 26 S. Ct. 467,
201 U. S. 378, 50 L. Ed. 794.



§§ 4322-4324 carriers. 3928

damage occurred while the merchandise was in the charge of the ship or under
its control, and the majority of the witnesses heard were present at the examina-
tion of the goods, and unable to determine whether the damage was the result
of sea water, the ship was not liable. ^^

That Port Opened by Thief. — In an action for damages to a cargo of ciga-
rettes by leakage resulting from negligently leaving a port open, evidence that
cigarettes were found missing from the cargoes of other steamers of this line,
and that the situation of the port was such as to make theft possible, and that
en arrival at the ship's destination some of the boxes were found misplaced, was
not sufficient to excuse defendant by showing that the port had been opened fe-
loniously in an attempt at theft.^-*

§ 4323. Delivery to Carrier. — Upon the issue whether goods claimed to
have been shipped in a foreign port, but which were not delivered by the car-
rier, were in fact received on board, the acts of the ship's officers, whose custo-
mary duty it is to check off merchandise received aboard, is received as evidence
of great importance. ^^ Bills of lading, signed for the master, and acknowledging
the receipt of goods on the ship, even though shown to have been executed by
a duly authorized agent of defendant, are insufficient to prove delivery of the
goods to defendant for carriage, where plaintiff's evidence further shows that
when the}^ were executed the goods had not been received on board ship, nor con-
signed to the care of a master, but were in a public warehouse, registered in the
name of a third party, and that there was no vessel in port.^^

§ 4324. Condition of Vessel. — Where all the direct evidence was to the
effect that a steamer was seaworthy when she entered on her voyage, it can not
be inferred from the fact that a short time before she had met with two accidents,
in one of which she was slightly injured, that her seaworthiness was thereby im-
paired, in the absence of affirmative evidence that she was in fact injured thereby
in her hull or machinery .^'^ Evidence that damage to chemicals and rags in a
cargo from sea water resulted from leaks in the steamer's ballast tank, which
was found after heavy weather to be sprung, and the rivets started and broken,
is not sufficient to establish unseaworthiness where first-class construction, care-
ful inspection, and good stowage are shown. ^^ In the appended note are cited
decisions where the evidence was held sufficient or insufficient to shoAv unsea-
worthines?.^^

83. Clastrier v. Sun Mut. Ins. Co., 18 sel unseawortliy at the commencement of
La. Ann. 021. the voyage, having in view the nature of

84. That port opened by thief. — The the cargo, the time of the year, and the
Manitoba. 104 Fed. 145. weather to be fairly anticipated. The C.

85.- Delivery to carrier.— Kelley v. Cu- W. Elphicke, 122 Fed. 439, 58 C. C. A. 421,

nard Steamship Co., 120 Fed. 536. affirming 117 Fed. 279.

86. Cunard Steamship Co. v. Kelley, 115 Same — By reason of improper stowage.
Fed. 67S, 53 C. C. A. 310. — Corsar v. Spreckels & Bros. Co., 141

87. Condition of vessel.— The Longfel- Fed. 260, 72 C. C. A. 378; The Medea, 179
low, 104 Fed. 360, 45 C. C. A. 379. Fed. 781, 103 C. C. A. 273.

88. The British King, 92 Fed. 1018, 35 Evidence not showing proper inspec-
C. C. A. 159, affirming 89 Fed. 872. tion. — A cargo was injured by sea water

89. Evidence held to show unseaworthi- which entered the vessel through a hole
ness of the vessel. — The Good Hope, 197 which had been worn and eaten by corro-
Fed. 149, 116 C. C. A. 573; The Abbazia, sion through the iron bottom of a valve
127 Fed. 495; The William Power, 131 chest three-eighths of an inch thick. The
Fed. 136; Neilson v. Coal, etc.. Supply peculiar liability to corrosion of iron in
Co., 122 Fed. 617, 60 C. C. A. 175, affirm- such place was well known, and, while
ing The Nellie Floyd, 116 Fed. 80; The ihere was evidence of inspection, it was
Gordon Campbell, 141 Fed. 435. not specific as to manner in which such

Evidence held to sustain a finding that inspection was made, and it did not ap-

damage to a cargo of flaxseed from water pear that the valve chest had ever been

on a voyage from Duluth to Buffalo re- removed for examination since it was

suited from the defective condition of the placed in the ship nine years before, or

hatch coverings, which rendered the ves- even that the valve itself had been taken



3929 CARRIAGE OF PROPERTY. §§ 4324-4325

Certificate of Seaworthiness.— It has been held a certificate of the sea-
worthiness of a vessel issued by the authorities is not conclusive evidence thereof
in a shipper's action for injuries to a shipment due to a leak in the vessel. ^"^

Construction of Vessel. — While, in determining whether or not the construe^
lion of a vessel rendered her unseaworthy, it is proper to consider evidence of
the usual custom of shipowners and the usual method of construction of ships
and their appliances, such evidence is not necessarily conclusive, and should be
considered in the light of what would appear to be the prudent method of con-
struction, and may be rejected entirelv where the construction is obviouslv de-
fective.91

§ 4325. Evidence as to Sea Perils.— The burden of showing how a leak-
arose, so as to bring the damage to cargo resulting therefrom within an excep-
tion in the bills of lading, was not discharged by simply showing that the ship
was in a seaworthy condition at the commencement of the voyage, and presenting
evidence which merely left in doubt the question as to how the leak arose.^^
The fact alone that damage to cargo was caused by sea water, without any evi-
dence as to how the water entered the ship, is not sufficient to relieve the vessel



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 154 of 214)