Bixby v. Deemar

• Decision Date: 13 March 1893
• Docket Number: 107.
• Citation: 54 F. 718
• Parties: BIXBY et al. v. DEEMarch
• Court: U.S. Court of Appeals — Fifth Circuit

54 F. 718

BIXBY et al. v. DEEMarch

No. 107.

United States Court of Appeals, Fifth Circuit.

March 13, 1893

R. H Browne, (Browne & Choate, on the brief,) for appellants.

J. W Gurley, Jr., (Gurley & Mellen, on the brief,) for appellee.

Before PARDEE and McCORMICK, Circuit Judges, and TOULMIN, District judge.

McCORMICK Circuit Judge.

On the 3d December, 1890, H. H. Deemar, the appellee, shipped on board the steamer City of Baton Rouge, whereof the appellants were master and owners, in the port of St. Louis, 61 beehives filled with bees, and other articles, not necessary to specify, to be delivered to him in the port of New Orleans. He paid the freight, $13.65, and received a bill of lading in which were expressed 'dangers of the river excepted,' and at 'owner's risk.' The steamboat proceeded on her voyage until the 12th of December, when, without her fault or the fault of her master or other officers or employes, she struck a hidden obstruction, and in a few minutes filled with water. The hull parted from her cabin and sank in very deep water. The cabin, sustained by buoyant freight, floated in an eddy until it, partly submerged, was drawn to shore and fastened. The master, deeming both vessel and cargo a total loss, came to New Orleans the next day, and abandoned the cargo to the underwriters. The agent of the underwriters sent a steamer from New Orleans to the place of the wreck, the Hermitage landing, in Louisiana, only a short distance from New Orleans, to save what of the cargo could be saved, and bring it to New Orleans. The appellee's goods were not insured. The beehives had been placed on the cabin or saloon deck, and the day after the wreck-- that is, on the 13th of December-- most of them were taken on shore. Several boats passed the Hermitage landing, and proceeded to New Orleans, between the 13th of December and the 24th of that month, on which last day the beehives were brought to New Orleans on the steamer which had been sent to the wreck by the agent of the underwriters, and were sent to auction, and sold for account of whom it might concern, and were never delivered to appellee. Most of the bees-- about two thirds, in each hive-- were dead, and the hives, 46 in number, were sold for only $5.06, or 11 cents a hive. The appellee exhibited his libel against the appellants, and the customary proceedings were had, and at the hearing on the proofs the district court gave judgment for appellee against the appellants in solido for $367.66.

Respondents appealed, and assign the following errors:

'(1) That, the carrier having established that the damage and loss occurring were within the exceptions contained in the bill of lading, the burden of proof was on the shipper to prove want of skill or diligence; and, the libelant having failed to show this, the judgment should have been in defendants

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