The Patria

132 F. 971, 68 C.C.A. 397, 1904 U.S. App. LEXIS 4362

• Court: Court of Appeals for the Second Circuit
• Decided: September 9, 1904
• Docket: No. 183
• Status: Published

Opinion

LACOMBE, Circuit Judge (after stating the facts).

The sharpest conflict of evidence in the case — as to facts,- not as to theories — is touching the appearance of the bags when delivered from the steamer. The District Judge found that a large number of them were stained, damp, and dirty. He saw most, if not all, of the witnesses; and, upon an examination of the record, we are not prepared to find otherwise as to the condition of the bags, and are in substantial accord with the statements contained in the excerpt quoted above.

The appellant, however, contends that, even upon his own statement of the case, the conclusion of law reached by the District Judge is erroneous. The opinion concludes as follows:

“Under these circumstances, I think that the rule applies that when a common carrier receives goods in good condition, and delivers them damaged, it has the burden of proof to show that the damage was caused by a risk excepted in the bill of lading; and, in the absence of satisfactory proof that the damage was so caused, the court is justified in finding for the libelant, even if the cause of the damage does not appear.”

It is, no doubt, the rule, as appellant contends, that, when the damage is manifestly of the sort excepted, the ship is under no obligation to 'show the promoting cause." To- illustrate,’ 1f“ffiiTíáreépfi6a'is”‘,^Sí:-' age caused by peril of the sea,” and the cargo is landed drenched with salt water, it will be for the ship to show that the salt water found access to the cargo through a peril of the sea; but if the exception is ^“damage by breakage,” and the article arrives broken, the ship is not required to show how it got broken — although the libelant may show 'that negligence of those on the ship, or of those who stowed her or discharged her, caused the break, and, showing that, may recover. If the sole damage to the cargo in the case at bar were manifestlyf.de_cay, and the language of the exception were, as the respondent states it "in' his brief, “for decay caused by inherent defect,” the ship would have the burden of showing that the decay was caused by inherent defect. If, however, the sole damage was manifestly decay, and the language of the exception were, as given in the bill of lading, “not responsible for damage occasioned by decay of any kind,” the appellant would be right in his contention, and, the cause of the decay not being shown to be negligence on the part of the ship, the libel should be dismissed. The difficulty is that there appear to have been two different sorts of damage. In 595 of the bags some of the beans themselves were shriveled, soft, and spoiled — might fairly be said to be decaying — but these bags also contained the black substance which the witnesses for libelant, including the chemist, unite in describing as coal dust. And in 138 more of the bags (the total shipment was 1,000 bags, of which 267 were delivered in perfectly good condition) the principal damage was from the same cause. Upon the proofs as they stood, therefore,, we think the District Judge reached a correct conclusion, and affirm the decree, with interest and costs.