Nelson v. Woodruff,
66 U.S. 156 (1861)

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U.S. Supreme Court

Nelson v. Woodruff, 66 U.S. 1 Black 156 156 (1861)

Nelson v. Woodruff

66 U.S. (1 Black) 156


1. A bill of lading in which the carrier acknowledges that the goods have been received by him in good order is prima facie evidence of that fact, but if a loss occurs, he is not precluded from showing that it proceeded from some cause which was not apparent at the time he received them.

2. When goods in the custody of a common carrier are lost or damaged, the presumption of law is that it was occasioned by his default, and the burden is upon him to prove that it arose from a cause for which he is not responsible.

3. The carrier is not responsible for leakage of a liquid occasioned by the peculiar nature of the article itself or by secret defects which existed in the casks but were unknown when they were shipped.

4. Nor is he answerable for diminution or leakage from barrels, though they be such as are commonly used for similar purposes, if the barrels become unfitted to hold their contents by causes connected with the nature and condition of the article which the carrier could not control.

5. Hog's lard having certain qualities which make its leakage from ordinary barrels or wooden casks unavoidable in hot weather, a person who ships it in that condition from a southern port for a long voyage, through low latitudes in midsummer, takes upon himself the risk of all loss necessarily proceeding from that cause.

6. In an admiralty suit, an objection to the deposition of a witness on the ground of incompetency from interest, must be made at the hearing; it comes too late if it be deferred until the argument.

7. Where a deposition was taken by a person who was both commissioner and clerk of the court, and the proctor of the opposing party knew that the deposition had been taken, it cannot be ruled out on the ground that it was not sealed up, that the preliminary proof of materiality was not made, or that notice of its being filed was not given.

These suits were brought in the District Court for the Southern District of New York. They were cross-libels in personam on the same maritime contract, and the evidence was

Page 66 U. S. 157

identical in both cases. Nelson and his associates were the owners of the ship Maid of Orleans, on board of which a cargo of lard in barrels and tierces was shipped at New Orleans for New York in July, 1854, consigned to Woodruff & Co. at New York. The ship owners demanded the freight according to the bills of lading, and the consignees claimed damages for the nondelivery of a large part of the lard, which, they alleged, was lost by leakage during the voyage. The question of law raised was whether the contract of affreightment, under the circumstances, made the ship owners responsible for the loss.

On the hearing in the district court, the deposition of the master of the ship was offered by the owners and objected to by the counsel of the consignees on the ground 1. that no preliminary proof had been made of the witness' materiality; 2. that it was not sealed up, and 3. that no notice was given of its being filed; but the commissioner who took the deposition being the clerk of the court, and the consignees' proctor knowing that the deposition had been taken, the court (Betts, J.) overruled the objections. At the argument, another objection was taken to the same deposition that the witness was interested. The court held that it was too late; it should have been made on the hearing.

After argument and consideration of the whole evidence in both cases, the district court dismissed the libel of the consignees and decreed in favor of the ship owners for the freight, and these decrees being afterwards affirmed by the circuit court, the consignees took appeals to the supreme court,

Page 66 U. S. 158

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