Under a bill of lading that the vessel Packages containing firecrackers were dewould not be accountable for leakage, break-livered broken. The bill of lading exemptage, or rust, it was held that the vessel' ed from liability for breakage or the in

sufficiency of the packages. It was held others partly. The ship libeled the wine that, upon proof of breakage, the steamer for freight charges. No evidence was ofrelying on said proviso for exemption had fered by the claimants, and there was no the burden of showing that the damage was other evidence of the negligence of the vesdue to insufficient protection. Doherr v. sel than the condition of the casks upon Houston, 64 C. C. A. 102, 128 Fed. 594, her arrival. The casks were of inferior affirming 123 Fed. 334. The bill of lading quality, badly coopered and shaky. It was was indorsed "Packages, firecrackers frail." | held that the burden of proving that the It was held that there was negligent stow-injury to the casks was caused by the negage, and that the respondent failed to sus-ligence of the ship was cast upon the claimtain the burden of proof. Distinguishing ants by the proof of the inferior quality the case of The Lennox, supra, it was said: of the casks. 630 Casks of Sherry, 14 "The case at bar, however, differs from The Blatchf. 517, Fed. Cas. No. 12,918. Lennox in some of its facts, and in having said special written contract indorsed on the bill of lading, by which the libellant agreed that, as the packages were frail, the steamer should not be accountable for breakage, provided they were insufficiently protected. Upon proof of breakage, the steamer, relying on said proviso for exemption from liability, has the burden of proof to establish that the damage was due to insufficient protection."

A violin was shipped by express in a crate. The receipt provided exemption for breakage unless from gross negligence. The case was intact, but a slat was missing, and one was loose, and the violin was broken. It was held that the plaintiff complied with the rule as to burden of proof by showing the condition of the violin on its arrival. A prima facie case of gross negligence was established. Campe v. Weir, 28 Misc. 243, 58 N. Y. Supp. 1082.

In The Henry B. Hyde, 32 C. C. A. 534, 61 U. S. App. 147, 90 Fed. 114, where the cause of loss was alleged by the libellant to be "breakage," it was said: "In this respect the case differs from some of those cases which are cited by the appellants, such as cases where the carrier had stipulated against loss by the perils of the sea. The Giava, 56 Fed. 243; The Warren Adams, 20 C. C. A. 486, 38 U. S. App. 356, 74 Fed. 413. In such cases the duty rests upon the carrier to show that the damage resulted from the perils of the sea. In the present case the stipulation was explicit. The nature of the injury indicated for itself that it belonged within the specified exemption from liability."

The burden of proof was held to be upon the carrier to show the cause of fracture of an iron casting. The carrier claimed that the owner assumed the risk of having the castings turned when being unloaded, and that this breakage was not caused at that time. If not caused then, the carrier should have shown when it was injured. Hudson River Lighterage Co. v. Wheeler Condenser & Engineering Co. 93 Fed. 374. Chlorid shipped under a bill of lading exempting loss from "leakage," was partly lost by leakage. It was held that the burden was on the libellant to show negligence on the part of the ship. The Barracouta, 39 Fed. 288.

A bill of lading exempted the ship from liability for leakage and breakage not arising from her own negligence. Some casks of wine were empty on their arrival, and

And the burden of proof was held to be on the shipper to show negligence where loss of freight was from leakage and breakage, which were excepted in the bill of lading. The Jefferson, 31 Fed. 489. The evidence of the carrier was insufficient to show that the damage to the barrels was caused by perils of the sea. The barrels were crushed by rolling over them other barrels of heavy freight.

A bill of lading exempted the carrier from loss by leakage. A cask of wine was empty on delivery to the consignee. It was held that the burden was on the libellant to show that the leakage might have been avoided by reasonable skill on the part of the carrier, where the leakage was caused by a plug in the cask becoming loose. The Olbers, 3 Ben. 148, Fed. Cas. No. 10,477.

A bill of lading exempted the vessel from average leakage. Some casks of wine when delivered were empty. It was held that negligence on the part of the vessel should be affirmatively shown by the owners of the wine. Vaughan v. 630 Casks, 7 Ben. 506, Fed. Cas. No. 16,900. The casks might have been empty when shipped.

And where the bill of lading provided, "Ship not responsible for rust, leakage, or shrinkage," it was held that the burden of proof was on the shipper to show that excessive leakage of oil was caused by the negligence of the carrier. The Invincible, 1 Low. Dec. 225, Fed. Cas. No. 7,055. The court said: "It is not enough to show that it exceeds the average leakage, because it is not that alone which is excepted, but any leakage unless caused, in fact, by. negligence on the part of the ship."

A bill of lading exempted from liability from "breakage, leakage, or damage." The goods were damaged by oil. Over the place where the goods were stored were two engines lubricated by oil. It was held that the burden of proof was on the plaintiff to show negligence of the carrier. Czech v. General Steam Nav. Co. L. R. 3 C. P. 14. Bovill, Ch. J., said: "If the goods are damaged, and no reasonable explanation of the damage can be given except the negligence of the defendants, a jury are justified in finding that such negligence is proved." What he meant was probably better stated by Byles, J.: "But it was shown that the goods were injured by oil, and that they were in close proximity to engines, in lubricating which oil must have been used,

and that there was no defect in

the engines, and no accident on the voyage. | brakeman, or what he was doing at the time It certainly was strong prima facie of the accident.

evidence.
In Vogel v. Grand Trunk R. Co. 10 Ont.
App. Rep. 162, Burton, J. A., said: "The
contract stipulates that the company shall
not be liable for any damage that may oc-
cur to goods arising from leakage or break-
age, and some other things not material to
the present inquiry, and no doubt this
would exempt them from damage arising
from those causes, the result of mere ac-
cident, where no blame is imputable to
them, but not from responsibility for their
own negligence and want of care. Under
such a contract the onus would be upon the
owners of the goods to show that the dam-
age was attributable to the misconduct of
the company or their servants."

And where goods were shipped at the owner's risk, and the vessel sunk, it was held that the burden of proof as to the carrier's negligence was on the shipper. Moore v. Evans, 14 Barb. 524.

And the burden of proof was held to be on the shipper, to show the carrier's negligence, where wheels were shipped at the owner's risk. Sejalo v. Woolverton, 31 Misc. 752, 64 N. Y. Supp. 48.

The shipper was held to have the burden of proof of negligence where the loss occurred by reason of a cause exempted in the bill of lading. Flynn v. St. Louis & S. F. R. Co. 43 Mo. App. 424. Furniture shipped at "owner's risk" was broken. The court said: "It is enough for the plaintiff to disclose circumstances sufficient to raise a fair inference of negligence."

f. Heat and cold.

A bill of lading exempted from liability for damage to cargo by "heat." Where this was the cause it was held that the burden was on the libellant to show that the negligence or misconduct of the carrier co-operated in the damage to his goods. The New Orleans, 26 Fed. 44.

Where a carrier was to be exempt from liability for injury by reason of leakage, fermentation, and breakage, and grape juice had fermented, it was held that, in order to avail itself of the exemption, the carrier was called upon to show that it had performed the contract to ship on the 25th day of November, or in the first vessel thereafter, and was without fault. Heyl v. Inman S. S. Co. 14 Hun, 564. The jury were instructed to find whether there was sufficient excuse for not sending the casks forward on the 25th day of November or the 2d day of December, the defendant's New York excepted damages from heat and A bill of lading for nuts from Para to steamers having sailed on both of those days; and they were further instructed that steam. Where it was shown that they were if the excuse was insufficient, the exemp-ner, that the most approved methods of venstowed in compartments in the usual man

tion could not be claimed.

And where a cask of wine was shipped and was empty on arrival, and the cask was not damaged, it was held that the carrier was bound to prove that the loss occurred within a clause exempting from liability. The bill of lading exempted damage from stowage, straining, or other peril of the sea. It was held that proof of tempestuous voyage, and of cargo well stowed and hatches secured, did not shift the burden of proof. Arend v. Liverpool, N. Y. & P. S. S. Co. 64 Barb. 118, affirmed without opinion in

53 N. Y. 606.

In Drew v. Red Line Transit Co. 3 Mo. App. 495, the cases of Levering v. Union Transp. & Ins. Co. 42 Mo. 88, 97 Am. Dec.

320, and Ketchum v. American Merchants' Union Exp. Co. 52 Mo. 391, were followed. In this case the contract provided no liability for breakage, and, glass being broken, it was held that the burden of proof as to absence of negligence was on the carrier. These cases were overruled in Witting v. St. Louis & S. F. R. Co. 101 Mo. 631, 10 L.R.A. 602, 20 Am. St. Rep. 636, 14 S. W. 743.

e. Owner's risk.

Goods were shipped at owner's risk. The train separated and the engineer braked his part. The collision derailed the car. The burden of proof as to negligence was held to be on plaintiff. French v. Buffalo, N. Y. & E. R. Co. 4 Keyes, 108. The plaintiff failed to prove the exact position of the third

removed when the weather would permit, tilation were adopted, that the hatches were the hatches for the last three days, the that tempestuous weather required closing burden of proof to show negligence was held to be on the libellant. The Portuense, 35

Fed. 670.

The court said:

tor were excepted in the bill of lading, it
And where defects in the ship's refrigera-
the shipper to show negligence. The South-
was held that the burden of proof was on
wark, 104 Fed. 103, affirmed in 48 C. C. A.
123, 108 Fed. 880, which is reversed in 191
U. S. 1, 48 L. ed. 65, 24 Sup. Ct. Rep. 1.
for some reason or reasons did not do its
"No doubt, the machinery
work, and no doubt, also, its failure to re-
duce the temperature sufficiently was due
to the several breakdowns.
negligence is proved, the cause or causes of
libellants' express contract relieved the car-
the accidents are not important; for the
rier from liability for the consequences of
any breakdown, however caused."

. . Unless

And where the shippers contracted to supply a refrigerator car for their use with ice, it was held that the carrier had a right to assume, in the absence of notice to the contrary, that they had furnished enough ice to keep the car cool until a delivery to the consignee could be had. The carrier's liability had to be predicated upon negligence, and in the absence of evidence of the carrier's default, it would be assumed that loss was caused by default of shipper. Chi

cago, I. & L. R. Co. v. Reyman, 166 Ind. | 48, 75 Am. Dec. 372, and Weed v. Panama 278, 76 N. E. 970. R. Co. 17 N. Y. 362, 72 Am. Dec. 474. But Apples were shipped under a special con- in neither case was the burden of proof distract limiting the carrier's liability to dam-cussed. The court evidently meant that age resulting from negligence, and the apples in a refrigerator car were injured. It was held that the burden of proof as to negligence was on the shipper. Hurst v. St. Louis & S. F. R. Co. 117 Mo. App. 25, 94 S. W. 794.

A contract released liability for losses beyond the carrier's control, which it was urged was the same thing as the act of God, and it was specifically urged that there was a release for loss due to weather, heat, frost, wet, or decay, and that the evidence showed the loss was from heating or freez. ing. There was nineteen days' delay, which should have been only five, and the delay A cargo of sugar consigned subject to was wholly unaccounted for. It was held the perils of the sea was damaged on arthat it was incumbent on the carrier to rival. It was held that the burden was on show that, if the loss was due to heat or the ship to show that the case came within freezing, it was not due to delay or negli- the exception in the bill of lading. If it gence in transportation. Pittsburgh, C. C. was shown that the peril was adequate to & St. L. R. Co. v. Mitchell, 175 Ind. 196, | produce this result, and that there were 91 N. E. 735, 93 N. E. 996, citing Black-not sufficient means at the command of the stock v. New York & E. R. Co. 20 N. Y. master to overcome the peril or prevent

the damage, then the ship would be held to have made out a prima facie defense, and then it would be incumbent on the libellant to show further evidence of negligence. The Sloga, 10 Ben. 315, Fed. Cas. No. 12,955. And where the defendant met a prima facie case by showing that the damage to the goods came from the dangers of navigation, one of the excepted causes of liability in the bill of lading, it was held that the burden then rested on plaintiff to show that this danger and loss might have been avoided by the use of proper care and skill. Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160. The court said: "There was no presumption from the simple fact of a loss occurring in this way, that there was any negligence on the part of the company."

And where it was shown that damage to a cargo was caused by perils of navigation excepted in the bill of lading, it was held that the burden of proof was then on the shipper to show negligence. The Neptune, 6 Blatchf. 193, Fed. Cas. No. 10,118.

gence. To do this it was necessary to hold that a common carrier could not devest itself of its character as such. To this effect it was held in New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627, 10 Am. Neg. Cas. 624.

In Berry v. Cooper, 28 Ga. 543, the case of Clark v. Barnwell, 12 How. 273, 13 L. ed. 985, which held that the burden of proof was on the plaintiff, was criticized, the court saying: "I would remark that the point under consideration was not very prominent either in the discussion or the decision of the case in which it is enumerated.”

A bill of lading excepted "the dangers and accidents of the seas and navigation." A cargo of merchandise was damaged, and the damage was claimed to have been caused by improperly stowing a cargo of salt between the decks. It was held that the burden of proof was on the libellant to establish that this was the cause of the injury. The libellant failed. Rich v. Lambert, 12 How. 347, 13 L. ed. 1017.

A bill of lading excepted perils of the sea Where wool was damaged on a voyage, and navigation. A shipment of paper stock from contact with a cargo of wet redwood, was damaged by water and oil. It was held and it was claimed that the damage was that the libellants could show that the damcaused by perils of the sea that were ex-age might have been avoided by the exercepted in the bill of lading, it was held that the burden of proof was on the vessel to show this. The court held: "Even if the burden of proof was upon the libellant to show the particular cause of the injury, I think it is sufficiently shown" (improper stowage). The Pharos, 9 Fed. 912.

cise of reasonable skill, but that they should establish negligence affirmatively. The Sabioncello, 7 Ben. 357, Fed. Cas. No. 12,198. More care should have been used in stowing the cargo.

And where it was shown that the injury to a cargo was sustained during a severe And where the injury to a cargo of hard-stress of weather, and was the result of it. ware was established, and the bill of lading excepted the dangers of navigation, it was held incumbent on the carrier to show that the injury was caused by the dangers of navigation, and then it devolved on the shipper to show that it might have been avoided by the exercise of skill and care. Hunt v. The Cleveland, 6 McLean, 76, Fed. Cas. No. 6,885.

Thread shipped in cases was damaged from the damp and mildewed, and where the burden of proof was held to be on the shipper to show negligence after the injury was shown to be within the excepted causes. The bill of lading excepted "dangers and accidents of the seas and navigation." Clark v. Barnwell, 12 How. 272, 13 L. ed. 985.

In Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 1003, 45 Am. Rep. 428, the case of Clark v. Barnwell, 12 How. 279, 13 L. ed. 987, was distinguished and criticized, the court saying that the rule that the burden of proof to show negligence was on the plaintiff was apparently based on the proposition that by the contract the carrier ceased to be a common carrier, and became a simple bailee for hire. This was held in York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 18 L. ed. 170. Then the next step taken by common carriers was in the direction of contracting against their negligence, as a private carrier might do. Then the courts became alarmed and denied that a common carrier could by contract exempt itself from losses caused by its own negli

and there was also affirmative proof of proper care in stowage, it was held that the burden of proof was on the shipper to show that by proper attention the damage might have been avoided. The George Hea. ton, 20 Fed. 326.

The carrier proved the encountering by the ship during the voyage of weather sufficiently heavy to warrant the conclusion that the immediate cause of the destruction and loss of goods was the motion of the ship in heavy weather, which perils of the sea were excepted. This proof was held to shift the burden to the libellant to show that the result would have been prevented by due care. Christie v. The Craighton, 41

Fed. 62.

And where the proof by the carrier showed that the breakage of barrels of indigo was caused by the excepted perils of the sea and the motion of the ship, it was held that this shifted the burden of proof to the libellant to show that this result of the motion of the ship would have been prevented by the exercise of due care in the stowage of the casks. The Polynesia, 30 Fed. 210.

Where the vessel attempted to show that damage was caused to drums of glycerine by perils of the sea, and the bill of lading exempted from loss by leakage, the burden of proof was held to be on the libellant to show negligence. The mates' evidence to the effect that the wood fastenings to these two drums were all that were displaced