SPRAGUE, District Judge.
The libellants claim as owners and shippers of the almonds mentioned in the bill of lading, for damage to their property. The claimants have made two objections to the maintenance of this suit in the name of the libellants; first, that the property belonged to the consignees, Messrs. Cusack & Co. of New Orleans; and second, that the suit was commenced without authority from the libellants; but I am satisfied upon the evidence that the libellants were the owners of the property, and that the suit was rightfully brought, and is rightfully prosecuted by them.
The first question to be decided is whether the rights of the parties are to be settled by the French Code de Commerce, or by the general maritime law. It is argued, on behalf of the claimants, that as the contract of shipment was made in Marseilles, the law of France controls it, and establishes their duties and liabilities. And they allege that by the French Code (section 191), no lien on the ship is given, for damage to cargo, unless caused by the fault of the master or crew. I do not find it necessary to decide this question, for the reason that I do not think I am authorized to infer from the French Code, that it differs, in respect of liens for damage to cargo, from the general maritime law. I think, in the first place, that it is fairly to be presumed that a commercial code of so commercial a nation- as France, would not differ from the general maritime maxim, “that the ship is bound to the goods, and the goods to the ship.” The Code is the only evidence of the law offered. No testimony of French jurists is in the case, and I am left to form my own judgment of the law from the Code itself. The section (191) insisted upon by the claimants does not profess to create liens, but only to marshal certain liens elsewhere declared to exist. We must look elsewhere for the creation of liens on ships for damage to cargo, 3 Under the chapter of the Code treating of charter-parties, contracts of affreightment, and freightings (“Des chartres-parties, affretemens on nolis-semens”), this subject is treated. The 289th. section is as follows: “The ship, her tackle and apparel, the freight and the cargo, are respectively bound to the performance of the agreements of parties.” The claimants insist that this section is limited to charter-parties, or to contracts for the hiring of a specific portion of the ship. It would be very extraordinary if. it were so limited, and would in•terfere very materially with the powers of the captain to load his ship in such a manner as to render her seaworthy. Some goods-require to be put at the bottom, and others-at the top of the cargo. Too much dead weight on the bottom will make the ship-labor. Too little will make her crank. Now, if the hirer of a portion of a ship should have the right to insist upon having that portion established by metes and bounds, either perpendicularly or horizontally, it would follow that he would have the right to stow his cargo as he chose, and in such proportions as-he preferred. And in case there were several such partial hirers, the control of the stowage would be altogether taken away from the master. But it is said that there is a special chapter of the Code, treating of bills of lading, in which no mention is made of any lien. A bill of lading is not inconsistent with there being also a charter-party, or a contract of affreightment A bill of lading is evidence of a contract, but it does not necessarily constitute the whole contract. If section 191 is the only one giving a lien for damage to cargo, then it would follow that there is no lien on the ship for damage arising from the fault of the owner. The ship might be unseawortby, and the owner know it, and yet no lien for the damage caused thereby. This is not to be supposed, and I should not adopt the construction of the claimants* counsel, without further proof that such is the meaning of the French Code. Believing that the French law does give a lien on the ship in accordance with the general mark time law, it does not become necessary for me to decide by which of the two this contract is governed.
[945]*945Is the ship liable? In the first place,- were the goods damaged when delivered in New Orleans? In regard to twelve bags, dam. aged by rats and rotten from humidity, there is no controversy. As to the residue, the depositions of the consignees, of the person to whom they had been sold to arrive, and who rejected them as damaged, of the port-wardens and marine inspector who examined them, and of others who saw them,—all show that they were damaged. Notice was given to the captain and to the consignees of the ship in New Orleans, and in the newspapers, that the almonds would be sold at auction, and they were so sold for half the value of sound ones. The captain was notified of the damage, and there was an examination of the almonds in his presence. He was requested to extend a protest, to enable the consignees to recover of the underwriters; but he declined to do so, on the ground that he had had no bad weather on his voyage. On the evidence, I cannot doubt that the almonds were damaged very much beyond the extent admitted by the -claimants. The almonds having been shown to be damaged when delivered, and the master having signed a bill of lading implying that they were in apparent good condition when shipped, the burden of proof is on the claimants to show why they did not arrive in good condition. In this bill of lading, it is true that there is no express admission of their reception in good condition; but it is therein provided, that “on their delivery in New Orleans without wet or damage freight shall be paid,” and this imports that they were without “wet or damage” when shipped. It is conceded by the libellants, that although the bill of lading does not in terms except the dangers of the seas, this exception is implied.
It is contended that the almonds must have been wet or damaged before going on board in Marseilles. To meet this, the libellants have produced the testimony of the persons in Spain who purchased the almonds, dried them in a granary, put them into bags, put them on board the steamer for Marseilles, and of the captain of the steamer himself. They have also produced the testimony of. the shippers in Marseilles; of their clerks, draymen, and lighterman, by whom the almonds were examined and put on board the ship; and by this complete chain of testimony, exhausting the sources o-f evidence, it is shown that they were handled only in fair weather, and were in a sound and dry state when put aboard. Furthermore, the mate testifies that the weather was fine the day they came aboard; that he received and saw them, and reported them in good order to the captain for him to sign the bill of lading. He superintended the stowage, and it was his duty to see and report whether they were wet or not.
In reply to this direct evidence, the claimants say that the almonds must have been damaged before coming on board, because the injury could not have arisen on board the vessel. They show that the vessel was properly dunnaged according to usage in Boston; that the ballast was some two feet deep, and that there was sufficient dunnage to protect the cargo from water from the bottom, and that there was but little water in the hold. But there is evidence that these bags, or the greater part of them, were wet when taken out; that there was wet then in the vessel and that some of them lying against the side of the vessel were rotten from humidity.
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SPRAGUE, District Judge.
The libellants claim as owners and shippers of the almonds mentioned in the bill of lading, for damage to their property. The claimants have made two objections to the maintenance of this suit in the name of the libellants; first, that the property belonged to the consignees, Messrs. Cusack & Co. of New Orleans; and second, that the suit was commenced without authority from the libellants; but I am satisfied upon the evidence that the libellants were the owners of the property, and that the suit was rightfully brought, and is rightfully prosecuted by them.
The first question to be decided is whether the rights of the parties are to be settled by the French Code de Commerce, or by the general maritime law. It is argued, on behalf of the claimants, that as the contract of shipment was made in Marseilles, the law of France controls it, and establishes their duties and liabilities. And they allege that by the French Code (section 191), no lien on the ship is given, for damage to cargo, unless caused by the fault of the master or crew. I do not find it necessary to decide this question, for the reason that I do not think I am authorized to infer from the French Code, that it differs, in respect of liens for damage to cargo, from the general maritime law. I think, in the first place, that it is fairly to be presumed that a commercial code of so commercial a nation- as France, would not differ from the general maritime maxim, “that the ship is bound to the goods, and the goods to the ship.” The Code is the only evidence of the law offered. No testimony of French jurists is in the case, and I am left to form my own judgment of the law from the Code itself. The section (191) insisted upon by the claimants does not profess to create liens, but only to marshal certain liens elsewhere declared to exist. We must look elsewhere for the creation of liens on ships for damage to cargo, 3 Under the chapter of the Code treating of charter-parties, contracts of affreightment, and freightings (“Des chartres-parties, affretemens on nolis-semens”), this subject is treated. The 289th. section is as follows: “The ship, her tackle and apparel, the freight and the cargo, are respectively bound to the performance of the agreements of parties.” The claimants insist that this section is limited to charter-parties, or to contracts for the hiring of a specific portion of the ship. It would be very extraordinary if. it were so limited, and would in•terfere very materially with the powers of the captain to load his ship in such a manner as to render her seaworthy. Some goods-require to be put at the bottom, and others-at the top of the cargo. Too much dead weight on the bottom will make the ship-labor. Too little will make her crank. Now, if the hirer of a portion of a ship should have the right to insist upon having that portion established by metes and bounds, either perpendicularly or horizontally, it would follow that he would have the right to stow his cargo as he chose, and in such proportions as-he preferred. And in case there were several such partial hirers, the control of the stowage would be altogether taken away from the master. But it is said that there is a special chapter of the Code, treating of bills of lading, in which no mention is made of any lien. A bill of lading is not inconsistent with there being also a charter-party, or a contract of affreightment A bill of lading is evidence of a contract, but it does not necessarily constitute the whole contract. If section 191 is the only one giving a lien for damage to cargo, then it would follow that there is no lien on the ship for damage arising from the fault of the owner. The ship might be unseawortby, and the owner know it, and yet no lien for the damage caused thereby. This is not to be supposed, and I should not adopt the construction of the claimants* counsel, without further proof that such is the meaning of the French Code. Believing that the French law does give a lien on the ship in accordance with the general mark time law, it does not become necessary for me to decide by which of the two this contract is governed.
[945]*945Is the ship liable? In the first place,- were the goods damaged when delivered in New Orleans? In regard to twelve bags, dam. aged by rats and rotten from humidity, there is no controversy. As to the residue, the depositions of the consignees, of the person to whom they had been sold to arrive, and who rejected them as damaged, of the port-wardens and marine inspector who examined them, and of others who saw them,—all show that they were damaged. Notice was given to the captain and to the consignees of the ship in New Orleans, and in the newspapers, that the almonds would be sold at auction, and they were so sold for half the value of sound ones. The captain was notified of the damage, and there was an examination of the almonds in his presence. He was requested to extend a protest, to enable the consignees to recover of the underwriters; but he declined to do so, on the ground that he had had no bad weather on his voyage. On the evidence, I cannot doubt that the almonds were damaged very much beyond the extent admitted by the -claimants. The almonds having been shown to be damaged when delivered, and the master having signed a bill of lading implying that they were in apparent good condition when shipped, the burden of proof is on the claimants to show why they did not arrive in good condition. In this bill of lading, it is true that there is no express admission of their reception in good condition; but it is therein provided, that “on their delivery in New Orleans without wet or damage freight shall be paid,” and this imports that they were without “wet or damage” when shipped. It is conceded by the libellants, that although the bill of lading does not in terms except the dangers of the seas, this exception is implied.
It is contended that the almonds must have been wet or damaged before going on board in Marseilles. To meet this, the libellants have produced the testimony of the persons in Spain who purchased the almonds, dried them in a granary, put them into bags, put them on board the steamer for Marseilles, and of the captain of the steamer himself. They have also produced the testimony of. the shippers in Marseilles; of their clerks, draymen, and lighterman, by whom the almonds were examined and put on board the ship; and by this complete chain of testimony, exhausting the sources o-f evidence, it is shown that they were handled only in fair weather, and were in a sound and dry state when put aboard. Furthermore, the mate testifies that the weather was fine the day they came aboard; that he received and saw them, and reported them in good order to the captain for him to sign the bill of lading. He superintended the stowage, and it was his duty to see and report whether they were wet or not.
In reply to this direct evidence, the claimants say that the almonds must have been damaged before coming on board, because the injury could not have arisen on board the vessel. They show that the vessel was properly dunnaged according to usage in Boston; that the ballast was some two feet deep, and that there was sufficient dunnage to protect the cargo from water from the bottom, and that there was but little water in the hold. But there is evidence that these bags, or the greater part of them, were wet when taken out; that there was wet then in the vessel and that some of them lying against the side of the vessel were rotten from humidity. Have the claimants shown how this damage was caused? Was it by “blowing?” This may happen where there is but little- water in the hold, but from the evidence it would seem that the bags were too generally damaged to have been wet from this cause, which would be more likely to wet only the outer tiers of bags. Was it from a leak in the deck? The mate says the upper deck was tight; but in- fact the lower deck was not tight. It cannot be that the goods came on board dry, were delivered wet, and were not damaged while in the ship. Some one of these three propositions must be untrue.
Now, the evidence shows satisfactorily that the goods were wet and damaged when delivered at New Orleans, and the bill of lading admits that the sacks appeared externally to be in good order when taken on board in Marseilles. The burden of proof is then on the claimants to show what caused the damage. Theories may be formed as to the cause of damage, and one theory which is no more improbable than another is, that water may have got in between decks during the voyage. It must be borne in mind, that one of the reasons for casting the burden of proof of the cause of damage (after the damage itself has been shown) upon the ship-owner is, that as to what takes place during the voyage no one except his agents can testify. This burden of proof does not allow of a conclusive inference that the damage must have arisen before shipment, because the ship was tight and well dunnaged and that the ship-owner will be relieved of his liability by such inference. The burden of proof requires that the owner should go farther, and satisfy the court that the damage arose from one of the causes excepted, —anything short of this will not relieve him of his responsibility. I cannot say that the claimants have done this, because my mind is left in a state of uncertainty as to the cause of the damage, and I therefore must order a decree to be entered for the libel-lants. In regard to the amount of the decree, the auction sale must have great weight in determining the value of the almonds in New Orleans, as it appears to have been a fair public sale, of which the captain and the consignees of the ship were notified, and which was abundantly advertised. There were several dealers and bidders present, and there is no evidence of any unfairness. [946]*946If the parties do not agree as to the amount of damages, the ease may be sent to an assessor.