
    MORITZ ROTH, Appellant v. THE HAMBURG-AMERICAN PACKET COMPANY, Respondent.
    
      Common carrier—Bill of lading—Liability for negligence.
    
    This action was for the value of two casks of wine. The casks were found on the arrival of the steamship to be in a broken condition, some of the staves having been broken, and the whole of the contents had leaked out. The bill of lading provided that the defendant should not be liable for breakage or leakage. The plaintiff claimed that the facts of the breakage and leakage created a presumption of negligence in the breakment of the casks for which defendant was liable under the bills of landing, or that, at least, it was for the jury to say whether the condition of the casks did not show negligence.
    
      
      Held, that assuming the law to be that when casks or things of that nature are generally carried without breakage, if ordinary care is used, the fact of breakage leads to the presumption that ordinary care was not used, yet such a presumption can be made only in regard to casks that are made of such material, and in such manner, that will give them the strength to resist the ordinary operations on the ship; yet if nothing be known or presumed as to the strength of the cask, no knowledge or ex- ■- perienee would exist upon which it might appear probable that the casks would bear ordinary usage. The manner in which these casks were made, or the strength of the material, were not shown, although proof on the subject could have been had, and there can be no presumption as to their strength, and the plaintiff did not show facts upon which a presumption of negligence of defendant could be assumed, nor any question on that point, for the consideration of the jury.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 5, 1891.
    Appeal by plaintiff from judgment dismissing complaint entered upon an order made at trial term, and from order denying plaintiff’s motion for a new trial made upon the judge’s minutes.
    
      John Fennel and A. H. Berrick, attorneys and of counsel, for appellant.
    
      Butler, Stillman & Hubbard, attorneys, and James C. Colgate of counsel, for respondent.
   Per Curiam.

The action was for the value of two casks of wine that had been shipped upon a steamer of the defendants to be carried to this port. The plaintiff was owner and consignee. On the arrival of the steamer the plaintiff demanded the casks. They were then in a broken condition, some of the staves having been broken. The whole of the contents had leaked out. The plaintiff had received a bill of lading which provided that the defendants should not be liable for breakage or leakage, but on the trial it was claimed that the shipment had been made under a verbal contract which would make the defendants liable as common carriers at common law. The evidence, however, shows that the shipment was made, subject to the terms of the printed bill of lading, afterwards delivered to the agent of plaintiff and sent by him to plaintiff.

The plaintiff claimed, under the bill of lading, that assuming the defendants were not liable for breakage and leakage, unless caused by their negligence, yet that the fact of the breakage and leakage created a presumption of negligence in the treatment of the cask, or that, at least, it was for the jury to say whether the condition of the casks did not show negligence. Let it be assumed, for the purpose of this decision, that the law is that when casks or things of that nature, are generally carried in ships, without breakage, if ordinary care is used, the fact of breakage will lead to a presumption that ordinary care was not used. Yet such a presumption can be made only of casks that are made of the material and in manner that suffice to give them strength to resist the ordinary operation upon the ship. If nothing be known or presumed as to the strength of the cask, no experience would exist upon which it might appear probable that it would bear ordinary usage.

In the present case, at the time of shipment, the casks were enveloped in linen covers. The manner in which the casks were made, or the strength of materials, were not shown, although proof on the subject could have been had. The admission in the bill of lading referred only to the apparent good order and condition of the casks,” and this referred, in fact, to the linen covers. There can be no presumption as to the degree of strength of any particular cask. If these views are right the plaintiff did not show facts which made a presumption of negligence on. defendants’ part, or any question for the jury on that point.

The rulings as to evidence were correct.

Judgment and order appealed from affirmed with costs.  