A.J. Tower Co. v. Southern Pac. Co.
| Decision Date | 06 January 1904 |
| Citation | 69 N.E. 348,184 Mass. 472 |
| Parties | A. J. TOWER CO. v. SOUTHERN PAC. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert F. Herrick, for plaintiff.
Foster & Turner and George Hogg, for defendant.
The goods named in the declaration having been delivered to and accepted by the defendant for transportation, it could not as a common carrier, be relieved from the liability incurred by its undertaking to safely carry and deliver them, unless the oil clothing that constituted the consignment is within the exceptions provided for in the contract of affreightment. It is conceded that no loss would have occurred from any danger of the seas if the cases of oil clothing had been stowed below deck; and the defendant now seeks to be relieved from the payment of damages caused to the plaintiff by their loss on the ground that, being within the excepted articles classed as 'inflammable goods,' it had the right to transport them as it might choose, on deck or elsewhere, even if, by reason of their being stowed on deck, they became loose while in transit during a severe storm, and were thrown overboard, not only to save other goods from damage, but to prevent their interfering with the necessary and proper navigation of the ship. The burden of amking out this defense is on the defendant. And for this purpose it might show by competent evidence the composition and classification of the goods that were shipped, and in so doing it would prove not only that they were within the class of merchandise that in the contract were at the shipper's or owner's risk but that carrying them on deck would not be negligence on the part of the carrier. After the captain of the ship had stated in his deposition, to the admission of which in evidence no objection was made by the plaintiff, that the cases of oil clothing were stowed on deck because of their inflammable nature, a foundation had been laid for the introduction of evidence to show a general usage that because of its character it was customary among steamship companies to stow oil clothing upon deck, 'and that it was to be classed as inflammable goods.' Daniels et al. v. Hudson River Ins. Co., 12 Cush. 416, 59 Am. Dec. 192. The existence of such a custom or usage and the extent to which it prevailed could be shown by witnesses who, from long experience and observation, knew what they and others did with such goods that were to be stowed on board, and then carried by vessels from port to port. All the deponents described what they did and had seen done in like conditions. They testified to a fact. Haskins v. Warren, 115 Mass. 514-535; Hutchins v. Webster, 165 Mass. 439-441, 43 N.E. 186. Whether the personal knowledge and experience of the several deponents was sufficient to qualify...
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