
    (98 South. 81)
    No. 26362.
    COUSTALINE v. LOUISIANA RY. & NAV. CO. In re LOUISIANA RY. & NAV. CO.
    (Dec. 3, 1923.)
    
      (Syllabus by Editorial StafJ
    
    Carriers €=»149-1/2 — Bill of lading requiring shipper to inspect carrier’s equipment and assume risk of defects held invalid.
    A clause in a bill of lading requiring the shipper to inspect the carrier’s equipment, and assume the risk of defects therein, held invalid as requiring the shipper to assume a risk arising from the carrier’s own negligence in failing to inspect, as shifting the (¡urden of proof from the carrier to the shipper, and as requiring an unskilled person to make and assume risk of inspection which only an expert can make.
    Certiorari to Court of Appeal, Parish of East Baton Rouge.
    Action by Paul Coustaline against the Louisiana Railway & Navigation Company. Judgment for plaintiff in the Court of Appeal, and defendant applies for certiorari or writ of review.
    Writ refused.
    Layeock, Borron & Laycock, of Baton Rouge, for applicant.
    Charles A. Holcombe, of Baton Rouge, for respondent.
   By the WHOLE COURT.

ST. PAUL, J.

I think the writ should be denied.

The decision of the Court of Appeal in this case is not in conflict with the decision of this court in McHenry Horse Exchange v. Illinois Central R. R. Co., 148 La. 49, 86 South. 649.

Certainly the bill of lading is binding (within limits) between the carrier on one side, and the shipper (and consignee) on the other.

But that presupposes that the provisions thereof relied upon by either party must be lawful. For instance, the shipper cannot invoke a provision calling for a freight rate lower than that fixed by the published tariff. On the other hand the carrier cannot rely upon a condition by which the shipper is required to assume the risk of the carrier’s own negligence, or by which the burden of proof is shifted from the carrier to the shipper; nor can the carrier impose on the shipper any other unreasonable condition.

A clause in a bill of lading, requiring the shipper to inspect the carrier’s own equipment, and assume the risk of defects therein, is open to all three objections.

(1) It requires the shipper to assume a risk arising from the carrier’s own negligence in failing to inspect and keep in proper condition its own equipment.

(2) It shrewdly shifts the burden of proof from the carrier to the shipper, by requiring (in effect) that the latter should first show the good condition of the carrier’s equipment at the start, before the carrier can be required to account for the manner in which the shipment was handled in transit. And

' (3) It requires that an unskilled person should make, and assume the risk of, an inspection which only an expert can make; and which the public safety demands should be made only 'by some one well skilled in the premises.

The writ should therefore be refused.

Writ refused for reasons assigned.

BRUNOT and LECHE, JJ., recused.  