Where goods are shipped and the usual bill of lading given,
"promising to deliver them in good order, the dangers of the seas
excepted," and they are found to be damaged, the
onus
probandi is upon the owners of the vessel to show that the
injury was occasioned by one of the excepted causes.
But although the injury may have been occasioned by one of the
excepted causes, yet still the owners of the vessel are responsible
if the injury might have been avoided by the exercise of reasonable
skill and attention on the part of the persons employed in the
conveyance of the goods. But the
onus probandi then
becomes shifted upon the shipper, to show the negligence.
Where spools of cotton thread, put up in boxes, were shipped at
Liverpool for Charleston, and the vessel had a voyage of sixty-one
days, going far south into a warm climate, and the thread was an
article peculiarly subject to the effect of dampness, some of the
inside boxes being stained, whilst the outside ones were not, the
cargo
Page 53 U. S. 273
also being well stowed and dunnaged, the injury must be
attributed to the dangers of the seas.
The usage of trade is to bring sacks of salt in the same vessel
with dry goods, and the evidence in this case is that if the salt
be well stowed, it does not increase the humidity of the vessel,
but rather acts the other way.
In this case also there was no evidence that the shipmaster was
guilty of any negligence in omitting to provide proper
precautionary measures. He was not responsible for the effect of
boisterous weather or adverse winds.
The words " contents unknown," being annexed to a bill of
lading, imply that the master only meant to acknowledge the
shipment in good order of the cases as to their external condition.
He might justify himself by showing that the contents were not in
good order, but the evidence in this case shows that they were so,
and the injury must be attributed to the dangers of the seas.
This was originally a libel, filed in the district court by
Barnwell & Ravenel against the ship
Susan W. Lind
under the following circumstances:
On 4 March, 1848, Richard Shiel & Co. shipped, at Liverpool,
in the ship
Susan W. Lind, Tristram Clark, master,
twenty-four boxes of cotton thread, consigned to Barnwell &
Ravenel at Charleston. The bill of lading contained the usual
clause, "to be delivered in like good order, all and every, the
dangers and accidents of the seas and navigation, of whatsoever
nature and kind, excepted," and was signed by Clark, with the
remark, "contents unknown."
The vessel sailed from Liverpool on 14 March, and arrived at
Charleston on 13 May.
On his arrival, the captain made a protest showing that the
voyage had been very boisterous and that the vessel had often
shipped large quantities of water.
On 15 May, the captain requested the wardens of the port to make
the survey of his vessel, and they continued the inspection during
the discharging of the cargo. The following is that part of their
report which related to the goods in question:
"On the 29th and 31st, the wardens examined twenty-two cases
marked C [B R] + 71 & 92. After they were landed and in store,
found many of them stained outside with mud, dry, and in good
order; on opening the cases, the wood inside in several of the
cases appeared stained; inside of these cases were stowed small
boxes; on opening them, the cotton thread contained therein was
found musty, mouldy, and damaged, which, in our opinion, has been
caused by the great humidity, sweat, and dampness of the hold."
Barnwell & Ravenel also had a survey made by Mood and Smith,
who reported as follows:
"That we found the whole of the contents of the said
twenty-two
Page 53 U. S. 274
cases to be in a damaged and unmerchantable condition, and we
concurred in recommending an early sale thereof at public auction
for account of whom it may concern. And we do further certify that
if the said cotton sewing thread had been landed in a sound and
merchantable state, the same would be worth in this market, at the
present time, for cash, forty-five dollars per box, containing one
hundred dozen spools, say 22 cases, each containing 6 boxes of 100
dozen."
"132 boxes a $45 per box . . . . $5,940"
"Witness our hands at Charleston aforesaid, the thirty-first day
of May in the year 1848."
"WM. G. MOOD"
"THOS. P. SMITH"
The goods were sold at auction, and produced only the net sum of
$3,335.09, but the duties being abated by $376.02, the loss was
claimed to amount to $2,228.89.
On 31 May, 1848, Barnwell & Ravenel filed their libel in the
district court of the United States against the ship, her tackle,
apparel, and furniture, and against Clark and all persons who
should intervene.
On 13 June, 1848, Clark filed a claim for himself, Royal
Williams, Ebenezer McLellan, Thomas McLellan, and James R. S.
Williams, all of Portland, in Maine, and afterwards an answer was
filed denying all the allegations of the libel.
A considerable amount of evidence was heard tending to show the
value of the articles shipped, the state in which they were landed,
the amount of damage sustained, and the causes to which it could be
attributed.
On 24 June, 1848, the district judge dismissed the libel on the
ground of there not being introduced at the trial of the cause
sufficient evidence to establish the fact of the goods being in
good order and condition at the time of their shipment.
The libellants appealed to the circuit court. Additional
testimony was taken to show that the goods were shipped in good
condition.
On the 8th of May, 1849, the circuit court reversed the decree
of the district court,
"conclusive evidence having been given to this Court which was
not produced before the said district court as to the shipment of
the goods at Liverpool in good order and condition,"
and decreed that the respondents should pay to the libellants
the sum of $2,228.89 with costs.
The respondents appealed to this Court.
Page 53 U. S. 279
MR. JUSTICE NELSON delivered the opinion of the Court.
The libel was filed against the ship
Susan W. Lind and
owners for alleged damage to cargo shipped to the libellants, as
consignees, from Liverpool to Charleston through the neglect and
fault of the master. The goods shipped were twenty-four boxes of
cotton thread which, on delivery at Charleston, were damaged to the
amount of some fifty percent. The spools of thread were packed in
small wooden boxes lined with paper, one hundred dozen in each box,
and again enclosed in a large wooden box, six small boxes in each
large one, lined with paper between the small boxes. When these
boxes were delivered and opened, the spools of thread in each of
the small boxes were more or less stained, and spotted by dampness
and mould, though the large and small boxes themselves were
generally dry, as was also the paper covering the thread.
The respondents in their answer allege that if the contents of
the boxes were in a damaged state when opened, the damage must have
existed, or originated in causes that existed, before they were
delivered on board the ship, though not indicated by the external
appearance of the boxes, or must have been produced by the effects
of the dampness of the atmosphere in the hold of the vessel to
which goods, wares, and merchandise are exposed, and especially
such as were shipped for the libellants, in all vessels, however
tight and stanch, with cargoes however well stowed, on as long and
boisterous a passage as was experienced by the
Susan W.
Lind, or the same was caused by such dampness in consequence
of the neglect of the shipper in not having packed the cotton
thread in boxes calculated to exclude the damp air which otherwise
it must be subject to in the transportation across the
Atlantic.
Page 53 U. S. 280
The vessel sailed from Liverpool on the fourteenth day of March,
1848, and arrived at Charleston, her port of destination, on the
fourteenth day of May following, making a long voyage of sixty-one
days, during which she encountered rough weather and violent gales,
causing her to labor heavily, and occasionally ship water.
As we have already stated, the cotton thread, when the boxes
were delivered to the consignees and opened, was found damaged on
account of stains and spots, the effect apparently of dampness and
mould happening in the course of the shipment.
The bill of lading admits that the twenty-four boxes were
shipped in good order, and bound the respondents to deliver the
same in like good order, "all, and every the dangers and accidents
of the seas and navigation of whatsoever nature and kind excepted."
And the main question in the case is whether or not the damage in
question was occasioned by one of the perils and accidents within
this clause of the bill of lading. For as the masters and owners,
like other common carriers, may be answerable for the goods
although no actual blame is imputable to them and unless they bring
the case within the exception, in considering whether they are
chargeable for a particular loss the question is not whether the
loss happened by reason of the negligence of the persons employed
in the conveyance of the goods, but whether it was occasioned by
any of those causes which, either according to the general rules of
law or the particular stipulations of the parties, afford an excuse
for the nonperformance of the contract. After the damage to the
goods, therefore, has been established, the burden lies upon the
respondents to show that it was occasioned by one of the perils
from which they were exempted by the bill of lading, and even where
evidence has been thus given bringing the particular loss or damage
within one of the dangers or accidents of the navigation, it is
still competent for the shippers to show that it might have been
avoided by the exercise of reasonable skill and attention on the
part of the persons employed in the conveyance of the goods, for
then it is not deemed to be, in the sense of the law, such a loss
as will exempt the carrier from liability, but rather a loss
occasioned by his negligence and inattention to his duty. Hence it
is that although the loss occurs by a peril of the sea, yet if it
might have been avoided by skill and diligence at the time, the
carrier is liable. But in this stage and posture of the case the
burden is upon the plaintiff to establish the negligence, as the
affirmative lies upon him. On this ground, in the case of
Muddle v. Stride, 9 Car. & P. 380, which was an action
against the proprietors of a steam vessel to recover compensation
for damage to goods sent by them as carriers, Lord Chief Justice
Denman, in
Page 53 U. S. 281
summing up to the jury observed
"If on the whole it be left in doubt what the cause of the
injury was, or, if it may as well be attributable to 'perils of the
sea' as to negligence, the plaintiff cannot recover; but if the
perils of the seas require that more care should be used in the
stowing of the goods articles of silk and linen on board, than was
bestowed on them, that will be negligence for which the owners of
the vessel will be liable. That the jury were to see clearly that
the defendants were guilty of negligence before they could find a
verdict against them."
Now applying these principles to the facts disclosed in the
record, we shall be enabled to determine whether or not the
respondents in the court below are liable for the damage that
happened to the goods in question, as they settle, with great
clearness the rule of responsibility and also on which side the
burden of proof lies to charge or exonerate them as common
carriers. And on looking into these facts it will be seen that all
the witnesses concur in the conclusion that the damage was
occasioned by the humidity of the atmosphere and dampness of the
ship's hold, producing mould and mildew upon the cotton spools and
thereby staining and spotting the thread, impairing its strength,
and rendering it unmerchantable. The article appears to be
peculiarly subject to the effect of humidity and dampness, as the
paper with which it was covered in the small boxes was generally
dry and unaffected, when at the same time the thread beneath was
mildewed and stained, and what is more remarkable, in many
instances the upper layers of the spools were perfectly dry and
sound, while those lying in the center were mouldy and spotted, and
in other instances the only part affected were the layers in the
center.
The vessel was a general ship, tight and stanch, well equipped
and manned, and was laden with a mixed cargo consisting of cases
and crates of dry goods, hardware, and about two thousand sacks of
salt. The cargo was well stowed and dunnaged. The sacks of salt
when discharged were dry as usual, and in good condition, and no
part of the cargo except the cases in question appears to have been
injured in the voyage or the subject of any complaint.
It was insisted on the argument that the respondents were in
fault in taking on board their vessel the goods in question with
salt as part of the cargo, but the evidence is full that salt in
sacks is part of a mixed cargo of nearly all the vessels engaged in
the trade between Liverpool and Charleston. One witness who has
been in the Liverpool trade for ten years states that salt is part
of the cargo of nine out of ten vessels trading from that port to
the United States. Several shipmasters who have been engaged in
this trade state that salt always constituted a part
Page 53 U. S. 282
of their cargo, and they never knew any damage occasioned to the
other goods. Indeed the evidence is all one way on this point. In
consequence of damage occasionally happening to these goods, and
others of like character in vessels of a mixed cargo of which salt
was a part, some merchants latterly gave particular directions to
their correspondents not to send their goods in a ship of this
description. But this only shows that the general usage of the
trade would justify the shipment with salt as part of the cargo,
and hence the necessity of the particular instructions.
The weight of the evidence also seems to be, that the presence
of salt as part of the cargo of the ship does not produce humidity
or dampness in the atmosphere, but tends rather to diminish it by
attracting and absorbing the humidity, and that unless in contact
with the salt or exposed to the drain from it by bad stowage, no
injury would accrue to the other goods.
Some attempt was also made upon the argument to show that the
salt was badly stowed, regard being had to the nature and character
of the goods in question, and that the damage was properly
attributed to this circumstance. But there is no foundation for the
argument upon the evidence. The salt was not within thirty feet of
the cases of dry goods, with the exception of two cases, which were
well dunnaged with matting and an inch board between them and the
salt. The spools of thread in these were not damaged more than in
the rest of the boxes.
Now the evidence showing very satisfactorily that the damage to
the goods was occasioned by the effect of the humidity and
dampness, which in the absence of any defect in the ship or
navigation of the same or in the stowage is one of the dangers and
accidents of the seas for which the carrier is not liable, the
burden lay upon the libellants to show that it might
notwithstanding have been prevented by reasonable skill and
diligence of those employed in the conveyance of the goods. For it
has been held if the damage has proceeded from an intrinsic
principle of decay naturally inherent in the commodity itself,
whether active in every situation or only in the confinement and
closeness of the ship, the merchant must bear the loss as well as
pay the freight, as the master and owners are in no fault, nor does
their contract contain any insurance or warranty against such an
event. 12 East 381; 4 Campb. 119; 6 Taunt. 65; Abbott on Ship. 428
(Shee's ed.). But if it can be shown that it might have been
avoided by the use of proper precautionary measures and that the
usual and customary methods for this purpose have been neglected,
they may still be held liable. And the same rule applies in the
case of damage on account of the humidity and
Page 53 U. S. 283
dampness of the ship, which is more or less incident to all
vessels engaged in trade and navigation, especially upon the high
seas. Notwithstanding, therefore, the proof was clear that the
damage was occasioned by the effect of the humidity and dampness of
the vessel, which is one of the dangers of navigation, it was
competent for the libellants to show that the respondents might
have prevented it by proper skill and diligence in the discharge of
their duties; but no such evidence is found in the record. For
aught that appears, every precaution was taken that is usual or
customary or known to shipmasters to avoid the damage in question.
And hence we are obliged to conclude that it is to be attributed
exclusively to the dampness of the atmosphere of the vessel,
without negligence or fault on the part of the master or
owners.
No doubt the unusual duration of the voyage on account of
tempestuous weather and adverse winds, in connection with the fact
that it was one in which the ship passed from a northern to a
southern latitude, and in a season of the year when the change from
a cold to a warm climate must have been considerable, greatly
increased the dampness, and also the influence of it upon goods
liable to damage from that cause.
But the carrier is not responsible for delay in the voyage on
account of boisterous weather or adverse winds, low tides, or the
like, as was held in the case of
Boyle v. M'Laughlin, 4
Har. & J. 291. These are dangers and accidents of the
navigation over which he has no control and against which his
contract contains no warranty.
Another point was made on the part of the respondents below
which it may be proper briefly to notice. It was insisted that
these goods had not been packed in good condition in the boxes at
Paisley by the manufacturer, or if otherwise, that the damage might
have happened to them in the conveyance from that place to
Liverpool, before they were shipped for Charleston.
The bill of lading contained the usual clause that they were
shipped in good order, but there was added, at the conclusion,
"contents unknown."
It is obvious therefore that the acknowledgment of the master as
to the condition of the goods when received on board extended only
to the external condition of the cases, excluding any implication
as to the quantity or quality of the article, condition of it at
the time received on board, or whether properly packed or not in
the boxes. Abbott 339 (Shee's Ed.), p. 216 (Story's Ed.). And if
the evidence on the part of the defense laid a foundation for a
reasonable inference that the damage resulted from an imperfection
in the goods when packed in the cases or had occurred previously to
their being shipped on board,
Page 53 U. S. 284
the burden was thrown upon the libellants to rebut the
inference. It was accordingly assumed in this case, and evidence
produced as to the condition of the thread when packed at Paisley,
and also in respect to the mode of conveyance from that place to
Liverpool, preparatory to the shipment. The explanation is as full
perhaps as could be well furnished or as is usual under the
circumstances, and brings the case down, we think, to the question
of damage occasioned by the effect of the humidity and dampness of
the vessel in the course of the voyage. We have already expressed
our views on that question, the result of which is that the decree
must be
Reversed.
MR. CHIEF JUSTICE TANEY and MR. JUSTICE WAYNE dissented.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
South Carolina, and was argued by counsel. On consideration whereof
it is now here ordered, adjudged, and decreed by this Court that
the decree of the said circuit court in this cause be and the same
is hereby reversed with costs and that this cause be and the same
is hereby remanded to the said circuit court for further
proceedings to be had therein in conformity to the opinion of this
Court.
