The Medea
| Decision Date | 26 May 1910 |
| Docket Number | 1,758. |
| Citation | 179 F. 781 |
| Parties | THE MEDEA. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. B McClanahan and S. H. Derby, for appellants.
Nathan H. Frank, for appellee.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
On October 25, 1906, Henry Lund & Co. of San Francisco chartered the Swedish bark Medea, then being overhauled at Gothenburg Sweden, under a charter party containing the usual warranty as to the seaworthiness of the vessel, for a voyage from the ports of Gothenburg and Limhamn in Sweden to San Francisco. The Medea sailed from Gothenburg on January 10, 1907, and from Limhamn on January 29, 1907, taking on board a cargo at both places, and arriving at the port of San Francisco on October 12, 1907. The cargo consisted of:
| Cement | From Limhamn | 853.1791/2240 tons |
| Iron | From Gothenburg | 343.2220/2240 " |
| Bottles | From Gothenburg | 175. 168/2240 " |
| Clay | From Limhamn | 23. 487/2240 " |
| Sardines | From Gothenburg | 13.1303/2240 " |
| Chalk | From Limhamn | 8.1370/2240 " |
| Sand | From Limhamn | 8. 400/2240 " |
| -------------------- | ||
| Total cargo ...... | 1426.1019/2240 tons. |
On arrival of the bark at San Francisco, it was found that much of the cargo had been damaged by salt water, and thereupon Henry Lund & Co. brought this action against the ship to recover the loss. It was alleged in the libel that the cargo was received on board of the vessel at the ports named in good order, well conditioned, and free from damage; that upon examination and special survey at the port of San Francisco the cargo was found to have been greatly injured and damaged during the voyage; that the damage and the injury resulted from the unseaworthiness of the vessel. The libel was verified by one of the libelants upon his knowledge that the cargo was received in a damaged condition and upon information and belief as to the cause of the damage. The respondent excepted to the libel on the ground that it could not be ascertained therefrom whether the damage arose from the alleged unseaworthiness of the vessel or from bad stowage of the cargo; or in what respect the vessel was unseaworthy, or in what respect the stowage was bad. The exceptions were overruled by the court and thereupon respondent filed its answer. In its answer to the libel the respondent, referring to the allegation that the cargo had been received on board the vessel in good order and condition, alleged that it was ignorant so that it could neither admit nor deny the same, and called for proof.
The same answer was made as to the other allegations of the libel, with the further allegation that on information and belief it denied the unseaworthiness of the vessel and the bad stowage of the cargo, and alleged that the damage to the cargo, if any, was caused by the peril of the sea. The answer was verified by one of the proctors for the respondents upon information and belief.
The first question relates to the burden of proof. The libel alleges the shipment of the goods constituting the cargo in good order and condition, and that the cargo was delivered in a damaged condition. Do the allegations of the libel that the damage to the cargo resulted from the unseaworthiness of the vessel or from improper and bad stowage of the cargo place the burden of proof on the libelants? The respondent contends that they do and cites the case of Rich v. Lambert, 53 U.S. 347, 353, 13 L.Ed. 1017, as authority for his contention. In that case the essential allegation of the libel was 'that the said goods, wares, and merchandise were not taken care of and safely carried and delivered according to the tenor and effect of the bills of lading; but, on the contrary, although no damage accrued from any dangers or accidents of the seas, or navigation, the said goods were so badly taken care of by the said master, and the cargo of said ship, and particularly a quantity of salt on board thereof was stowed so improperly, that through the neglect and mismanagement of the master the said goods were greatly damaged and great loss thereby sustained. ' The respondents in their answer in that case alleged 'that the ship encountered several violent gales, and very boisterous weather during her voyage, causing her to labor heavily, and straining her badly, the sea at times breaking over her, so that she shipped a great deal of water from leaks, and stress of weather, requiring the constant use of pumps, which were faithfully attended to, and every effort made to preserve the ship and save the cargo from damage. ' In passing upon the issue thus presented the court said:
This appears to have been said with respect to certain testimony, and the well-known rule requiring that the proofs of each party must substantially correspond to his allegation so far as to prevent surprise. It had no reference to the burden of proof which is clearly stated in a subsequent paragraph of the opinion as follows:
The opinion in this case was written by Mr. Justice Nelson, who wrote the opinion of the court in New Jersey Steam Navigation Co. v. Merchants' Bank, 47 U.S. 347, 382 (12 L.Ed. 465), where the court said:
Mr. Justice Nelson also wrote the opinion of the court in Clark v. Barnwell, 53 U.S. 272, 279 (13 L.Ed. 985), where the court said:
'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.'
The case of McKinlay v. Morrish, 63 U.S. 343, 16 L.Ed. 100, is cited by the respondent as holding that the burden of proof is where the pleadings place it. In that case the liability of the carrier for damage to a shipment of soap was alleged to have been caused by bad stowage and leaks in the deck of the vessel. The respondents met the charge by direct denial, averring that if the soap had been in any way injured, it might have been from causes beyond his control by any care whatever, and should be attributed to causes or perils excepted to as they were expressed in the bill of lading, viz., 'all and every danger and accident of the seas and navigation of whatsoever nature. ' It appears that there was testimony received by the trial court concerning storms encountered by the vessel in the Bay of Biscay and in weathering Cape Horn. But the case in the Supreme Court was put by the libelants altogether upon bad stowage and the leaks in the deck as both had been alleged in the libel. What that court said about the exclusion of testimony inapplicable to the issues made by the pleadings states the rules referred to in Rich v. Lambert, supra, that the proof must correspond to the allegation, and had no reference whatever to the burden of proof. But even this rule of pleading and proof is no longer enforced in admiralty with the strictness observed in common-law procedure. In the Gazelle and Cargo, 128 U.S. 474, 487, 9 Sup.Ct. 139, 142 (32 L.Ed. 496), the court, referring to this rule, said:
'In the courts of admiralty of the United States, although the proofs of each party must substantially correspond to his allegations, so far as to prevent surprise, yet there are no technical rules of variance, or of departure in pleading, as at common law; and if a libelant propounds with distinctness the substantive facts upon which he relies, and prays, either specially or generally, for appropriate relief (even if there is some inaccuracy in his statement of subordinate facts, or of the legal effect of the facts propounded), the court may award any relief which the law applicable to the case warrants.'
The rule as to the burden of proof as stated in New Jersey Steam Navigation Co. v. Merchants' Bank, supra, and in Clark v. Barnwell, supra, has been followed by the courts of the United States in numerous cases, and must be deemed to be settled.
In Nelson v. Woodruff, 66 U.S. 156, 169 (17 L.Ed. 97), the court said:
'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...
To continue reading
Request your trial
-
Artemis Maritime Co. v. Southwestern Sugar & M. Co.
... ... That fact must be affirmatively proven. The Edwin I. Morrison, 153 U.S. 199, 210, 14 S.Ct. 823, 38 L.Ed. 688; The Medea, 9 Cir., 179 F. 781." (Italics ours.) ... Circuit Judge Learned Hand, in Societa Anonima Cantiero Olivo v. Federal Insurance Co., 2 Cir., 62 F.2d 769, 771, said: 189 F.2d 492 "* * * gales are likely at all seasons in the Atlantic, and this was at most not more. She should have been ... ...
-
McGhee v. United States
... ... And on the last voyage, the ballast was so distributed as to make the vessel particularly 75 F. Supp. 83 vulnerable to the bad weather and seas which it was known she would encounter. Seaworthiness would require proper stowage (Metropolitan Coal Co. v. Howard, 2 Cir., 155 F.2d 780, 783; The Medea, 9 Cir., 179 F. 781, 792, 794), as well as proper ballasting. Sumner v. Caswell, D.C., 20 F. 249, 251. That the accident may have been caused in part by the wave, would not excuse where it was obvious that the weather and sea were not unusual for that time of the year, the ship was required to be ... ...
-
Brown v. Mars
... ... Lykes Bros., etc., Co., 5 Cir., 98 F.2d 185, 186, certiorari denied 305 U.S. 641, 59 S.Ct. 150, 83 L.Ed. 413; Liberty Bell Gold Mining Co. v. Smuggler-Union Mining Co., 8 Cir., 203 F. 795, 804, certiorari denied 231 U.S. 747, 34 S.Ct. 320, 58 L.Ed. 464; The Medea, 9 Cir., 179 F. 781, 786; West v. W. A. McLaughlin & Co.'s Trustee, 6 Cir., 162 F. 124, 128 ... III. This point has to do with the sufficiency of the evidence to support three results stated in the findings: That there were decreased weights as to four kinds of bars (Milky Way, ... ...
- Matter of Walker