Whitney v. Gauche

Vookhies, J. The owners of the ship Express sued the defendants on a freight bill for the sum of $937 48. The latter in his answer admitted the correctness of the bill, but claimed a reduction of the sum of $124 87, as ,damage which occured to his goods on their transportation from Liverpool to New Orleans. This deduction was allowed by the court below, and the plaintiffs appealed. The record discloses that the goods, when delivered to the defendant and unpacked, were found damaged by salt water. One of the witnesses states that a great many articles of crockery, consisting of pitchers, jugs and candlesticks, were broken; that the paper in which they were packed was wet with salt water; that the damage to which crockery is liable, when wet with salt water is, that the salt water tends to rot the straw, so that the articles become loose, and are destroyed by the least handling; and that crockery wet inside of the packages is always damaged. This testimony appears to be corroborated by several other witnesses. In regard to the question of damages to the goods, we think the proof is conclusive. The goods, according to the bill of lading, were shipped in good order and condition by Thomas F. Bennett, on board of the ship Express at Liverpool, on the 18th of July, 1854, to be delivered in like good order and condition to the defendant at New Orleans, “ all and every the dangers and accidents of the sea and navigation of whatsoever nature and kind excepted.” The damage to the goods having been established, the burden was then thrown on the plaintiffs to show, that it was occasioned by one of the perils from which they were exempted by the bill of lading. But such is not pretended to have been the case in this instance. The defence rests on the ground that the damage existed previous to the shipment of the goods. It is true that the acknowledgment of the master as to the condition of the goods, extended only to the external condition of the casks, excluding any implication as to then-quantity, quality or condition, or whether properly packed or not in the casks, when received on board. Had the evidence laid a foundation for a reasonable inference, that the damage had occured previous to the shipment of the goods, it is clear that the burden would have been thrown on the defendant to rebut the inference. But we do not think that any such foundation has been laid. We are, therefore, bound to conclude that the damage was occasioned by the fault or negligence of the master of the vessel. This we think is in accordance with the doctrine announced in the cases of Clark v. Barnwell, and Rich v. Lambut, 12 Howard, 280 and 347, relied upon by the appellants. It is, therefore, ordered and decreed, that the judgment below be affirmed with costs.