Nelson Et Al v. Woodruff Et Al Woodruff Et Al v. Nelson Et Al

• Decision Date: 01 December 1861
• Citation: 1 Black 156,17 L.Ed. 97,66 U.S. 156
• Parties: NELSON ET AL. v. WOODRUFF ET AL. WOODRUFF ET AL. v. NELSON ET AL
• Court: U.S. Supreme Court

66 U.S. 156

1 Black 156

17 L.Ed. 97

NELSON ET AL. v. WOODRUFF ET AL.

WOODRUFF ET AL.

v. NELSON ET AL.

December Term, 1861

These suits were brought in the District Court for the southern district of New York. They were cross-libels in personam on the same maritime contract, and the evidence was identical in both cases. Nelson and his associates were the owners of the ship Maid of Orleans, on board of which a cargo of lard in barrels and tierces was shipped at New Orleans for New York in July, 1854, consigned to Woodruff & Co., at New York. The ship-owners demanded the freight according to the bills of lading, and the consignees claimed damages for the non-delivery of a large part of the lard, which, they alleged, was lost by leakage during the voyage. The question of law raised was, whether the contract of affreightment, under the circumstances, made the ship-owners responsible for the loss.

On the hearing in the District Court, the deposition of the master of the ship was offered by the owners and objected to by the counsel of the consignees on the ground, 1. That no preliminary proof had been made of the witness's materiality. 2. That it was not sealed up; and, 3. That no notice was given of its being filed; but the commissioner who took the deposition being the clerk of the court, and the consignees' proctor knowing that the deposition had been taken, the court (Betts, J.) overruled the objections. At the argument, another objection was taken to the same deposition that the witness was interested. The court held that it was too late; it should have been made on the hearing.

After argument and consideration of the whole evidence in both cases, the District Court dismissed the libel of the consignees, and decreed in favor of the ship-owners for the freight; and these decrees being afterwards affirmed by the Circuit Court, the consignees took appeals to the Supreme Court

Mr. Dean, of New York, for the appellant, cited: Angel on Carriers, § 210; Warden vs. Greer, (6 Watts, 424;) Abbot on Shipping, 346; 1 Greenl. Ev., §§ 207, 305; Dezell vs. Odell, (3 Hill, 221;) Welland Can. Co. vs. Hathaway, (8 Wend., 483;) Bradstreet vs. Herren, (2 Blatch., 116;) Bank of Pittsburg vs. Neal, (22 How., 96;) Goodman vs. Simonds, (20 How., 363;) Clark vs. Barnwell, (12 How., 272;) Ellis vs. Willard, (5 Selden, 529.)

Mr. Goodman, of New York, for the appellees, cited: 3 Kent, 8th ed., 289; Angel on Carriers, §§ 211, 214; Clark vs. Barnwell, (12 Howard R., 272;) Downe vs. Steam Nav. Co., (5 Ellis & Bain, 195;) Trow vs. Vermont C. R. R. Co., (24 Vermont, 487;) Hawkins vs. Cooper, (8 Carr & Payne, 473;) Button vs. Hudson R. R. Co., (18 N. Y. R., 248;) Clark vs. Barnwell, (12 How. R., 272;) 2 Boulay Paty. Droit., Commercial, 309, 313; The Ship Martha, (1 Olcott Ad. R., 140;) Bradstreet vs. Herren, (1 Abbot Ad. R., 209;) Terega vs. Popp, (ib., 397;) Angel on Carriers, § 211; 3 Kent, 8th ed., 289.

Mr. Justice WAYNE.

We are now about to decide two appeals in admiralty from the Circuit Court U. S. of the southern district of New York.

They are substantially cross-actions, and the testimony is the same in both. They have been fully argued, and shall be discussed by us with reference to the rights and liabilities of the parties growing out of their pleadings, and the bills of lading upon which they rely.

William Nelson and others are the owners of the ship Maid of Orleans, and they have filed their libel to recover from John O. Woodruff and Robt. M. Henning, survivors of the firm of James E. Woodruff & Co., eighteen hundred and thirty-eight dollars eleven cents, with interest from the fourteenth of August, eighteen hundred and fifty-four, for the freight, with primage and average accustomed, of a large quantity of lard which was carried in their ship, in barrels and tierces, from New Orleans to New York, for which the master of the ship had affirmed for the shippers in two bills of lading; that they had been shipped in good order and condition, &c., and were to be delivered in like good order at New York, the dangers of the sea and fire only excepted, to James E. Woodruff & Co., or to their assigns, freight to be paid by him or them at the rate of $1 15 per barrel, and $1 50 per tierce, with five per cent. primage and average accustomed; and the libellants declare that the lard, upon the arrival of the ship, had been delivered to the consignees, and was accepted by them.

To this the respondents filed a joint answer, admitting the shipment, claiming that they had been made in conformity with the bills of lading, affirming the arrival of the ship in New York, and averring that only a part of the lard had been delivered, and allege that the agents of the libellants had taken so little care in receiving the casks and tierces on board of the ship, and in the stowing and conveyance of them, and in the discharge of them at New York, that, a large quantity had been lost, about sixty thousand pounds, of the value of six thousand dollars and upwards, and that the loss of diminution in its weight had not been lost by the perils of the sea, or from fire. They further answer, that, relying upon the bills of lading, the consignees, James E. Woodruff & Co., had made large advances upon them to the shippers of the lard. They then declare that, for cause stated by them, they were not liable to pay the freight and primage, but that the owners of the ship were answerable for the loss of the lard, and liable to pay them more than six thousand dollars, and claim to recoup against the freight and primage so much of the damage as they may have sustained as will be sufficient to liquidate and discharge the amount claimed for freight. When they answered the respondents, they at the same time filed a lible against the owners of the ship, propounding substantially the particulars of what was in their answer to the libel—so much so, that we will not repeat them; indeed, there is no addition to it, nor will it be necessary to set out again the articles of their answer to the libel filed against them, for they are a repetition of their own original libel, except in one particular, upon which the controversy was made exclusively to turn by the counsel on both sides in the argument of the case before us. That was, that the lard, as such, had not been in good order for shipping when put on board of the ship, inasmuch as it was then in a liquid state, and had in that condition been put into barrels and tierces, which, with the heat of the weather then and during the passage to New York, had started them, and had caused the leakage complained of before and during its transportation, and that the leakage had not been caused by any neglect or want of care of them, either in shipping the lard at New Orleans, or on the passage thence to New York, or in stowing it in the ship, or in the discharge of it in New York. There is much testimony in the record in respect to the effect of heat and barreling of lard in a liquid state, in producing more than usual leakage; but it was urged in the argument that such proofs were inapplicable to this case, as the bills of lading affirmed that the lard, when shipped, was in good order and condition, and were conclusive against the allowance of any inquiry being made, or to any other causes of loss or damage than such as may have been caused by the dangers of the sea and fire.

Such is not our view of the effect of the bills of lading we have now to consider.

We proceed to state what we believe to be the law, and will then apply the evidence to it to determine if this case is not within it.

We think that the law is more accurately and compendiously given by Chief Justice Shaw, than we have met with it elsewhere. In the case of Hastings vs. Pepper, (11 Pickering, 43,) that learned judge says: 'It may be taken to be perfectly well established, that the signing of a bill of lading, acknowledging to have received the goods in question in good order and well conditioned, is prima facie evidence that, as to all circumstances which were open to inspection and visible, the goods were in good order; but it does not preclude the carrier from showing, in case of loss or damage, that the loss proceeded from some cause which existed, but was not apparent, when he received the goods, and which, if shown satisfactorily, will discharge the carrier form liability. But in case of such loss or damage the presumption of law is, that it was occasioned by the act or default of the carrier, and, of course, the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods for carriage, and for which he is not responsible.' The same has been decided by this court in two cases as to the burden of proof, where the goods shipped were said to have been impaired in quality by the dampness of the vessel during passage to her port of delivery. Clark vs. Barnwell, (12 Howard, 272;) Rich vs. Lambert, (12 Howard, 347.)

The rule having been given, our inquiry now will be, whether or not the owners of the Maid of Orleans have brought themselves within its operation, so as to be exempted from all liability for the loss of the lard, by having proved satisfactorily that it had been occasioned by causes existing in the lard, but not apparent when it was shipped, to the extent of the injury which those causes would produce upon the barrels and tierces which contained it; or, in other words, that the causes of the loss were incident to lard when operated upon by a heated temperature of the sun acting directly upon it, or when it shall be stored, and an excessive natural temperature has occasioned its liquefaction. It is alleged that the loss of this shipment was sixty thousand pounds less that the quantity shipped. It must be admitted to be too large for it to be brought under the rule which exempts the carrier from liability for the ordinary evaporation of liquids, or for leakage from casks, occurring in the course of...