The opinion of the court was delivered,
by Agnew, J.
This 'action is directly against the defendants as carriers from Alexandria to Philadelphia. The plaintiff had no connection with them except through the Orange and Alexandria Railroad Company. The defendants not being liable for or privy to the transportation over the railroad line, and the railroad company being the only shipper known by them, whatever contract was made with them by the railroad company for the shipment from Alexandria to Philadelphia^ necessarily became the contract of the plaintiff. . It is unlike the case of a contract with a carrier to deliver at a' point beyond the termination of his own route, by which he makes himself liable for the acts of others on the terms of the original shipment.. Here the defendants contracted only for themselves, and the railroad company necessarily became the agent of the plaintiff. He is consequently bound by the terms of their shipment. Clyde v. Graver, 4 P. F. Smith 251, cited on this.point, is totally different in its circumstances. The offer of evidence to prove the terms on which the railroad company made the shipment was to provena contract and not a mere notice. It was properly allowed.
The real question tried was, whether the contract of shipment was the ordinary one for carriage, or was limited in its terms against loss by fire. The restriction has been found by the jury on sufficient evidence. The proof is clear, that all shipments by the Orange and Alexandria Railroad Company were, by express agreement, between that company and the defendants to be made upon the terms of the defendants’ bill of lading, containing an express exception of “ the damages of fire while on board the vessel or on shore.” The delivery of the goods was late in the evening (about dark),"and the bill of lading was made out next morning;. the vessel starting in' the .mean time, and having been [505]*505burnt up the same night with all her cargo. The practice of taking receipts for the goods upon delivery on hoard, and making out the bill of lading afterward, is one of common usage, caused by the press of business, and the ordinary bustle and haste in receiving cargo. It is recognised in Abbott on Shipping, part IV. ch. 4, § 2. The contract limiting liability being established, the plaintiff raised the question of the onus of proof as to the loss, and that is the only question for our consideration. The plaintiff contends that the defendants must show not only the loss by fire, but 'that every proper precaution was taken against it, and the absence of all negligence. To determine this point properly, we must notice the precise statement of the case. To facilitate the proof of his case the plaintiff' gave in evidence the following agreement: “ It is agreed to be admitted in evidence on the trial of this case:
“ 1. That the defendants are and were running a line of ' steamers between Alexandria, Va., and Philadelphia, for the transportation of goods, and were owners of the steamer ‘Liberty.’
“ 2. That on the 4th of January 1866, seventeen bales of cotton, weighing - each, and of the value of forty-seven cents per pound, were shipped by the Orange and Alexandria Railroad Company, upon said steamer, consigned to the plaintiff, which cotton was part of a shipment from Atlanta, Georgia, to the plaintiff.
“3. That on the morning of the 5th of January 1866, while the said steamer was on her way from Alexandria to Philadelphia, the steamer, with all -her cargo, including said cotton, was entirely consumed by fire.”
Now, it is quite evident that this agreement was drawn so as to furnish proof on the part of the plaintiff of the liability of the defendants as • common carriers, if there were no restriction of their common-law liability; and so as to be proof on the part of ■the defendants of the loss by fire, if a restriction existed. The evident purpose was to leave the precise terms of the contract of shipment for further proof. The state of the case then was this: that the defendants thereby had proved a total loss of boat and cargo by fire, while on her proper voyage to the port of delivery, without any circumstances in evidence from which a jury could draw the conclusion of negligence leading to the loss. The question which the plaintiff presents is therefore whether in addition to the proof of a loss by fire in the due course of the ship’s voyage unattended by circumstances indicating negligence, the defendants are bound to prove such care and diligence at and before the time of the fire, as will exclude a presumption of negligence; or in other words, whether they must negative, negligence by affirmative evidence of diligence. This point is ruled by the case of Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith [506]*50653. The principle of that case is, that the burthen 'of the proof of the loss which brings the carrier within the restriction in his contract lies on him; but when he has proved such a loss, unattended by circumstances indicating negligence, the onus of the proof of negligence is cast upon the plaintiff. The effect is, that the carrier must begin the proof, and if he cannot make it without showing negligence, or circumstances from which it will be inferred, he is not exonerated. But when he has shown a loss within the restriction, to require more of him is to limit the restriction and destroy its chief purpose. It is the great risk of fire, not compensated by the ordinary compensation for carriage, and the difficulty of preventing it even with great care, as well as the impossibility oftentimes of proving the attending circumstances,-which constitute the great reason for the limitation of liability from this cause. When vessel and cargo have both been consumed, and the sailors have gone to the bottom, or have been scattered, over the seas in other service, no evidence remains of the attending circumstances and the limitation is useless, if, in addition, the carrier must prove due care and diligence affirmatively. When he has shown a loss within the exception of his contract, without apparent negligence, he has brought himself within the terms of his bargain. On what principle is that bargain to be nullified, by requiring of him the production of that evidence, the loss or difficulty of obtaining which was the very reason for limiting his' responsibility ? He may well say to. the shipper, if this be the rule you would put me under, pay me extra hire for the service, for I might as well omit the restriction if I am held to a measure of evidence I probably cannot furnish. To load -down his contract with this measure of proof is-simply to hold that he may not limit his responsibility. It is surely enough to say to him, if your own evidence shows your negligence you have not acquitted yourself of liability.
The presumption of self-interest as well as of honesty forbids, the idea of a voluntary or a negligent fire, which must cause so much loss to the owner and so much danger to his servant's. That the onus of establishing negligence should rest upon the plaintiff is therefore a proper consequence of the power to limit liability by a special contract, and is, I think, established by authority also: Harris v. Packwood, 3 Taunton 264; Marsh v. Horne, 5 Barn. & Cress. 322; Muddle v. Stride, 9 Carr. & Payne 380; Clarke & Co. v. Spence, 10 Watts 335; Goldey v. Penna. Railroad Co., 6 Casey 246; New Steam Nav. Co. v. Merchants’ Bank, 6 Howard 384; Farnham v. Camden & Amboy Railroad Co., 5 P. F. Smith 59, 60.
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The opinion of the court was delivered,
by Agnew, J.
This 'action is directly against the defendants as carriers from Alexandria to Philadelphia. The plaintiff had no connection with them except through the Orange and Alexandria Railroad Company. The defendants not being liable for or privy to the transportation over the railroad line, and the railroad company being the only shipper known by them, whatever contract was made with them by the railroad company for the shipment from Alexandria to Philadelphia^ necessarily became the contract of the plaintiff. . It is unlike the case of a contract with a carrier to deliver at a' point beyond the termination of his own route, by which he makes himself liable for the acts of others on the terms of the original shipment.. Here the defendants contracted only for themselves, and the railroad company necessarily became the agent of the plaintiff. He is consequently bound by the terms of their shipment. Clyde v. Graver, 4 P. F. Smith 251, cited on this.point, is totally different in its circumstances. The offer of evidence to prove the terms on which the railroad company made the shipment was to provena contract and not a mere notice. It was properly allowed.
The real question tried was, whether the contract of shipment was the ordinary one for carriage, or was limited in its terms against loss by fire. The restriction has been found by the jury on sufficient evidence. The proof is clear, that all shipments by the Orange and Alexandria Railroad Company were, by express agreement, between that company and the defendants to be made upon the terms of the defendants’ bill of lading, containing an express exception of “ the damages of fire while on board the vessel or on shore.” The delivery of the goods was late in the evening (about dark),"and the bill of lading was made out next morning;. the vessel starting in' the .mean time, and having been [505]*505burnt up the same night with all her cargo. The practice of taking receipts for the goods upon delivery on hoard, and making out the bill of lading afterward, is one of common usage, caused by the press of business, and the ordinary bustle and haste in receiving cargo. It is recognised in Abbott on Shipping, part IV. ch. 4, § 2. The contract limiting liability being established, the plaintiff raised the question of the onus of proof as to the loss, and that is the only question for our consideration. The plaintiff contends that the defendants must show not only the loss by fire, but 'that every proper precaution was taken against it, and the absence of all negligence. To determine this point properly, we must notice the precise statement of the case. To facilitate the proof of his case the plaintiff' gave in evidence the following agreement: “ It is agreed to be admitted in evidence on the trial of this case:
“ 1. That the defendants are and were running a line of ' steamers between Alexandria, Va., and Philadelphia, for the transportation of goods, and were owners of the steamer ‘Liberty.’
“ 2. That on the 4th of January 1866, seventeen bales of cotton, weighing - each, and of the value of forty-seven cents per pound, were shipped by the Orange and Alexandria Railroad Company, upon said steamer, consigned to the plaintiff, which cotton was part of a shipment from Atlanta, Georgia, to the plaintiff.
“3. That on the morning of the 5th of January 1866, while the said steamer was on her way from Alexandria to Philadelphia, the steamer, with all -her cargo, including said cotton, was entirely consumed by fire.”
Now, it is quite evident that this agreement was drawn so as to furnish proof on the part of the plaintiff of the liability of the defendants as • common carriers, if there were no restriction of their common-law liability; and so as to be proof on the part of ■the defendants of the loss by fire, if a restriction existed. The evident purpose was to leave the precise terms of the contract of shipment for further proof. The state of the case then was this: that the defendants thereby had proved a total loss of boat and cargo by fire, while on her proper voyage to the port of delivery, without any circumstances in evidence from which a jury could draw the conclusion of negligence leading to the loss. The question which the plaintiff presents is therefore whether in addition to the proof of a loss by fire in the due course of the ship’s voyage unattended by circumstances indicating negligence, the defendants are bound to prove such care and diligence at and before the time of the fire, as will exclude a presumption of negligence; or in other words, whether they must negative, negligence by affirmative evidence of diligence. This point is ruled by the case of Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith [506]*50653. The principle of that case is, that the burthen 'of the proof of the loss which brings the carrier within the restriction in his contract lies on him; but when he has proved such a loss, unattended by circumstances indicating negligence, the onus of the proof of negligence is cast upon the plaintiff. The effect is, that the carrier must begin the proof, and if he cannot make it without showing negligence, or circumstances from which it will be inferred, he is not exonerated. But when he has shown a loss within the restriction, to require more of him is to limit the restriction and destroy its chief purpose. It is the great risk of fire, not compensated by the ordinary compensation for carriage, and the difficulty of preventing it even with great care, as well as the impossibility oftentimes of proving the attending circumstances,-which constitute the great reason for the limitation of liability from this cause. When vessel and cargo have both been consumed, and the sailors have gone to the bottom, or have been scattered, over the seas in other service, no evidence remains of the attending circumstances and the limitation is useless, if, in addition, the carrier must prove due care and diligence affirmatively. When he has shown a loss within the exception of his contract, without apparent negligence, he has brought himself within the terms of his bargain. On what principle is that bargain to be nullified, by requiring of him the production of that evidence, the loss or difficulty of obtaining which was the very reason for limiting his' responsibility ? He may well say to. the shipper, if this be the rule you would put me under, pay me extra hire for the service, for I might as well omit the restriction if I am held to a measure of evidence I probably cannot furnish. To load -down his contract with this measure of proof is-simply to hold that he may not limit his responsibility. It is surely enough to say to him, if your own evidence shows your negligence you have not acquitted yourself of liability.
The presumption of self-interest as well as of honesty forbids, the idea of a voluntary or a negligent fire, which must cause so much loss to the owner and so much danger to his servant's. That the onus of establishing negligence should rest upon the plaintiff is therefore a proper consequence of the power to limit liability by a special contract, and is, I think, established by authority also: Harris v. Packwood, 3 Taunton 264; Marsh v. Horne, 5 Barn. & Cress. 322; Muddle v. Stride, 9 Carr. & Payne 380; Clarke & Co. v. Spence, 10 Watts 335; Goldey v. Penna. Railroad Co., 6 Casey 246; New Steam Nav. Co. v. Merchants’ Bank, 6 Howard 384; Farnham v. Camden & Amboy Railroad Co., 5 P. F. Smith 59, 60.
A class of cases is cited- by the plaintiff as holding the contrary, which may be illustrated by Humphreys v. Reed, 6 Wh. 435; Whitesides v. Russell, 8 W. & S. 44, and Hays v. Kennedy, 5 Wright 378, wherein the exceptions were, “the dangers [507]*507of tbe navigation,” “tbe dangers of the river,” and “the unavoidable dangers of the river navigation.” It was held there that the carrier must prove not only the loss, but the manner of "it, and that actual care and diligence had been used to avoid it. But-the reason of the decision is, that without proof of the circumstances it is impossible to' say whether the loss arose from a danger of navigation. Such a peril can only be known from its facts. This is well explained by Kennedy, J., in Humphreys v. Reed. Now, he says, the striking of the boat upon a stone or rock in the canal may or may not fall within the exception. For instance, if the stone from its -position may be readily seen and avoided by those upon the boat; or although not visible, yet if its situation be generally known the loss ought to be imputed to the fault of the'captain or those having the direction of the boat. But if, on the other hand, it was not known, and was invisible to the common eye, the loss occasioned by the boat striking upon it ought-to be considered as coming within the exception,which embraces'all dangers of the navigation.
Thus it is evident that a peril of navigation is a thing having no definite fact to rest upon in the writing, but must be made to appear in the very facts of the loss. But not so as to a loss by fire, which is a specific thing and determines at once the character of the loss. The fire is the very thing provided for in the exception, and when the loss is shown to have arisen from a fire which consumes vessel and cargo, the thing excepted is proved. This excepted peril is shown to have caused the loss, and to add more to the evidence is to alter the terms of the contract.
Nothing need be said in reference to such cases as Berkner v. Strouse, 5 Bawle 179, where the plaintiff shows an ordinary case of contract for carriage, and that the goods have not been" deli* vered. There he may rest and throw upon the defendant the onus of proving the loss and how it happened, in order to discharge himself from liability. Until the exception is made to appear and that the loss fell within it, the plaintiff may rely on the general rule governing the liability of the carrier. No error being shown the judgment must be affirmed.