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verged, and in consequence thereof had come in collision with the steamer, or ship, the schooner would have been in fault.
I am, therefore, of opinion that the schooner did show a light, and did not alter her course before the collision, and was not in fault, but that there was fault on the part of those in charge of the steamer and ship, and that the steamer is liable for the damages resulting from the collision. Decree for the libellants.
Charles E. Pike, for libellants.
GEORGE P. BEARSE v. WM. ROPES ET AL.
Where goods are received on board a vessel, in good order, to be trans
ported from one port to another, and no stress of weather is shown, the burden of proof is upon the ship-owner to establish a peril of the seas.
The facts are sufficiently stated in the opinion of the court.
SPRAGUE, J. — This is a libel for freight of a quantity of hemp and iron from New York to Boston in the schooner Granite State. There is no question that the freight was earned. The defence is, that the hemp was damaged on the voyage by oil and sea water. Of the fact of such damage there is no doubt, and that it exceeded the amount of the freight; the only question is, whether the carrier ought to be held liable therefor. The master of the schooner signed a bill of lading in New York in the usual form, acknowledging the receipt of the goods on board in good order, and promising to deliver them in like good order to the consignees in Boston, danger of the seas only excepted. It is not contended that the deterioration of the hemp in this case arose from the nature or character of the article itself, that is, from any inherent quality or principle, but the damage arose entirely from its coming in contact with oil and sea water, in the hold of the vessel. The bill of lading contains a contract in writing. There being no doubt that the hemp was received on board in good order, and no suggestion of any inherent defect or
half ol and consible for other himse
decay, the only question is, whether the damage was occasioned by the danger of the seas. It is insisted, indeed, on behalf of the carrier, that if he took the usual care and precautions, and conveyed these goods in the usual manner, he is not responsible for damage, whether arising from the danger of the seas or otherwise. To this I cannot accede. In order to exonerate himself from liability, he must bring himself within the exceptions of the bill of lading, and show that the damage arose from the danger of the seas. It appears that part of the hemp was stowed in the after-part of the vessel upon other cargo, and this received no injury. The hemp which suffered was in the forward part of the vessel. On the one hand it is insisted that the damage to this arose from the perils of the sea; on the other, that it was occasioned by improper stowage or some want of reasonable care or skill on the part of the carrier. The schooner was put up in New York for freight for Boston, and after filling up, she sailed during the latter part of June, and arrived in Boston early in July. Nothing unusual occurred on the passage; she met with no accident, no bad weather, and encountered no unusual wind or waves. The ship's company consisted of seven persons, and of these the testimony only of one seaman is produced. He says that in coming round the Cape the vessel careened, and the master for that reason took in sail, but he does not say to what extent, and the taking in sail is one of the ordinary occurrences of a sea voyage. And he says in express terms there was nothing extraordinary or unusual in the passage from New York. In such a passage in summer, with no bad weather and no bad sea, and with only so much wind as to cause them once to shorten sail, it would seem that such an article as hemp ought not to have suffered damage on board a seaworthy vessel, if properly cared for.
As to that part of the damage which was occasioned by oil, a considerable quantity of oil in forty gallon casks was in the hold of this vessel, but not within twenty feet of the hemp ; about one hundred and twenty gallons leaked out, and with the water in the hold came in contact with the hemp. There is nothing whatever to show that this leakage was occasioned by danger of the seas. The cooper at Boston testified that the hoops were loose on two-thirds or three-fourths of the casks, and he is of opinion that they could not have been in good order when taken on board. From one of the casks all the oil had escaped except five gallons. How this oil was stowed on board, and whether properly secured or not, there is absolutely no testimony, the evidence as to stowage being confined to the bemp. The decision of Judge Story in the case of the Reeside, 2. Sumner, 567, has a forcible application to this part of the case. Then as to the damage by water, it is suggested that this was occasioned by “blowing," as it is called, that is, by the water in the hold of the vessel being forced up through the seams of the ceiling, and thus thrown upon the hemp. It is not shown or contended that there was any unusual quantity of water in the vessel at any time, or any unusual motion. Indeed, the whole evidence is to the contrary, and it is said, that this blowing when the ceiling is not caulked is a common occurrence. Now it would seem that the carrier ought to take adequate measures to protect the cargo against a common and ordinary occurrence, which might and ought to have been foreseen. As to the stowage of the hemp, the evidence is not satisfactory. Of all the persons engaged in loading and unloading this vessel, the testimony of one only is produced, and he a common sailor, and he speaks only of what took place in New York. He says that he assisted in stowing, that the hemp forward was placed on a platform with dunnage under it. When asked his opinion whether it was properly stowed or not, he replied that he never stowed any better, but nowhere says that he had ever stowed hemp before, and on cross examination says that he never stowed any in the forward part of the vessel. Neither the mate or any other person engaged in unlading the vessel is produced as a witness. The only evidence of the stowage in Boston comes from one of the Port Wardens, who expressed the opinion that the hemp was properly stowed. But he testified that he was not called upon to make any examination until after a part of the cargo had been discharged, and that when he first went to the vessel a part of the damaged hemp was on the wharf, and of that which remained in the hold some appeared to have been moved, after the arrival of the vessel. Of course he could not know from his own inspection where it was during the passage, and must have relied for that fact upon the information of others, and they are not called as witnesses. He further says that he saw no indications of there having been any unusual quantity or uncommon motion of water in the vessel. On the whole, I am not satisfied that the damage to the hemp either from the oil
or the water was occasioned by the danger of the seas, within the true meaning of the bill of lading, and as the amount exceeds the sum claimed as freight, the libel must be dismissed with costs.
S. J. Thomas, for the libellants.
Note to the cases of The Perkins, &c., in the last Number. We are informed that J. A. Abbott, of Boston, appeared for the claimants of The Acorn. His name was omitted by accident, in the report handed us for publication.
Superior Court of Connecticut. December, 1856.
RUEL H. BASSETT v. THE NORWICH & WORCESTER R. R. CO. The servants of a railroad company are to be presumed to have assumed
the risks incident to running the road with ordinary care and prudence, and run by competent and steady employees. But if the company fail to use proper precautions in the employment or in the supervision of their servants, they will be liable to other servants for damages occasioned by the neglect or default of servants chosen or continued without such due consideration.
This was an action on the case, demanding $6000 damages for an injury claimed to have been sustained by the plaintiff, whilst in the employ of the defendants as an engineer on a passenger train between Worcester and Norwich. The testimony showed that on the 25th day of December, 1852, while the train on which the plaintiff was engineer, was coming from Worcester to Norwich on its regular time, a through freight train, which the defendants had placed under the sole charge and control of one Benjamin Hoxie, and which was running from Norwich to Worcester, ran into the passenger train in a deep cut in the road near Plainfield, and that the engines and cars were broken up and several persons who were on board the passenger train injured. The testimony farther showed that the freight train was an irregular train running at an unusual hour, and not entitled to the road. That there was not any negligence on the part of the engineer or conductor of the down train which tended to produce the collision.
The plaintiff claimed that he received severe and permanent injuries in jumping from his engine, which had
destroyed his constitution, and rendered him incapable of performing the labor of a healthy, athletic man. He admitted that during the fifteen months thereafter in which he had labored for the defendants he had never mentioned the fact of his having been so injured to any officer or agent of the company, had performed his duty as an engineer, had not consulted a physician, but had taken various kinds of patent medicine that he saw advertised in the papers, and which he supposed might be beneficial in his case. He introduced testimony tending to show that Hoxie was not a competent engineer, or qualified to discharge the duties of a conductor, and had been at times addicted to the use of spirituous liquors, and he claimed that these facts were known to the officers of the company.
On the part of the defendants testimony was introduced tending to show that Hoxie was a man of more than ordinary intellect, and better educated than men in his position; that when he came into the employ of the defendants he was reputed to be a capable, careful and sober man; and that in the three years he had been in their employ, prior to this accident, he had shown himself in every respect worthy and competent. Also that Bassett had been all that time associated with Hoxie, and had had every opportunity to judge of his fitness to run this freight train and had made no complaint. They also offered testimony to prove that at the time of the collision, Bassett said to several persons, that he landed well in jumping from his engine, and had not suffered any injury; and further, that during the fifteen months he remained in their employ, he did not complain of any lameness, and performed labor as an engineer, which could only be performed by a healthy and very athletic man. It also appeared in evidence, that immediately after the injury, the plaintiff, in company with several employees of the defendants, walked from the place of the accident to Norwich, a distance of ten or twelve miles.
L. F. S. Foster and J. Halsey, (with whom was J. F. Crocker,) for the plaintiff, cited Patterson v. Wallace, 28 Eng. L. & Eq. 48; Marshall v. Steward, 33 Ib. 1; Stevens v. Maine R. Ř. Co. 13 Law Rep. 74; Story, Agency, 453; Dixon v. Ranken, 1 Am. R. R. Cas. 569, and cases cited; Segur v. Kilingsley, 22 Conn. 290.
Í. T. Wait and E. Perkins, for defendants, relied on Farwell v. Boston f. Worcester R. R. Co. 4 Met. 49; Hayes