
    Charles Barrett and Another versus Thomas Rogers.
    A bill of lading is prvmá facie evidence, and of the highest nature; hut it is not conclusive evidence, in all cases, as to the condition of goods shipped in packages.
    This was an action of the case against the defendant, master of the brigantine Governor Sumner. The declaration -alleges that the defendant, at Liverpool, received on board his vessel three cases of merchandise, in good order and well conditioned, to be by him transported to Boston, for a certain stipulated freight, all and every the dangers and accidents of the seas and of navigation excepted, and there to be delivered in like order to the plaintiffs or their assigns; and the plaintiffs say that the defendant arrived safely at Boston with said vessel, yet that he did not deliver said merchandise to the plaintiffs, or their assigns, but negligently kept and secured the same, and suffered them to become wet and damaged, whereby great part -thereof was lost to the plaintiff.
    - The action was tried on the general issue, at the last November term, before Parker, J., from whose report of the trial it appears, that the correspondents of the plaintiffs, in Liverpool, shipped on board the brig, of which the defendant was master, three cases of velvets, for which he signed bills of-lading in common form, promising to deliver them to the plaintiffs, or their assigns, in * 298 ] good order and well * conditioned, the danger o'f the seas and navigation only excepted. The brig arrived, after a passage of about three months, with the merchandise, which was duly delivered to the plaintiffs, the consignees.
    On the part of the plaintiffs, it was in evidence, that the hoops of the cases were rusty, the cases water-lined; and, on opening them, the goods were wet, and filled with particles of salt, but not rotten ; and sundry ¡persons swore that, in their opinion, they would have been rotten, had they been wet, as when opened, as many as twenty days.
    On the other hand, the defendant proved that the goods were stowed either on or among crates-of ware, well-duUnaged, and .perfectly secure from -the salt, of which, together with coals and bales of goods, the cargo consisted ; and some witnesses swore that they were delivered in perfectly good order, without any marks of damage upon them.
    The plaintiffs applied to the defendant for a port-warden’s certificate, which they did not obtain ; and sold the goods at auction foi the benefit of the underwriters. The defendant produced no port-warden’s survey, -no protest, no evidence of any damage of the seas or of navigation, nor any evidence to prove a fraud practised upon him by the shippers or packers of the goods in Liverpool.
    
    The plaintiffs’ witnesses also swore that the goods would not have received any damage, if stowed as sworn to by the defendant’s witnesses, and that the damage appeared to be recent.
    The judge left the cause to the jury without any remarks upon the evidence, or any direction in matter of law, except that the bill of lading, signed by the defendant in Liverpool, was not conclusive evidence that the goods were in good order within the cases, when received on board the vessel.
    At a former term of the Court, this cause was committed to a jury, who did not agree upon a verdict. At the term previous to that, at which the trial above recited was had, it was again committed to a jury, who returned a verdict * for [ * 299 ] the defendant; as did also the jury at the last term, the cause being then tried upon review.
    The plaintiffs move for a new trial, for the misdirection of the udge in matter of law.
    
      Selfridge, for the plaintiffs,
    contended that the defendant was bound absolutely, by his bill of lading, either to deliver the goods shipped in good order, or, if they were damaged, to prove that such damage arose from causes within the exception contained in the bill of lading. If the shipper practised a fraud upon him, he has his remedy, but he must still answer to the consignee. The bill of lading is an instrument of great solemnity, and no presumption, that the goods were not in good order when put on board, ought to be received against the express terms of the instrument. The defendant might have qualified the bill of lading as he saw fit: he must, however, be bound by the actual terms of it, and abide the consequences of his own contract. 
    
    
      Jackson for the defendant.
    The cases cited for the plaintiffs have no bearing on this cause. The first of them respected the sailing with convoy ; and in the other there was no bill of lading; but the question was, whether the master had acted with due care and intelligence, or whether the damage sustained arose from the dangers of the sea.
    If a bill of lading is conclusive evidence of the state of the goods in packages, the master, before he signs them, must open every package, must examine each article, and must be skilled in the quality and appearance of each. Such a construction would be absurd, and put an end to the carrying of goods on freight. The utmost that he can be held responsible for is to deliver them, in case no sea-damage occurs to them, in the same order in which he received them.  If the shipper commits a fraud, the owner or consignee of the goods, whose agent he is, must look to him for a remedy, and not to an innocent carrier, who in fact knows nothing, and is not bound to know any thing, of the contents of the packages, or of their condition.
    [*300 ] *The evidence at the trial was contradictory, and, perhaps, not to be reconciled. It was the proper prov; mce of the jury to weigh it. They have weighed it; and unless the bill of lading is absolute and conclusive evidence of the situation of the contents of the packages, there is no ground of objection to the verdict.
    
      
      I) Abbott on Shipping, 216, Story's edition, in notis. — Ibid. 250, Smith vs. Shepherd.
      
    
    
      
       1 Valin. 633, Lib. 3, Tit. 3
    
   The opinion of the Court (absente Parsons, C. J.) was after wards delivered by

Sedgwick, J.

No objection is made to the verdict of the jury; and the only question, presented by the report before us, or by the counsel for the plaintiffs, is upon the direction of the judge, that a bill of lading, in a case circumstanced as this is, acknowledging that the goods to be transported are in good order, is not conclusive evidence against the party executing it, and charged with their not being in good order, but damaged, at the time of their delivery, although he cannot show that the damage received is within the exception contained in the bill itself.

That a bill of lading is an instrument of a nature to command great regard, and imposing a proportional obligation upon those who are bound for the execution of the responsibility which it assumes, there can be no doubt; but this responsibility must have reasonable limits, which must be determined by the nature of the subject-matter. If the property to be transported, and which was declared to be “in good order,” was in all parts open to inspection, and no fraud or imposition was practised, it might not be unreasonable to say that no evidence should be admitted to prove that it was not in good order.

But in this case the property was velvets in cases, which were not open to inspection, and could not be rendered visible without opening the cases and unfolding the goods, which, it is believed, is never done. The exterior only was visible, and neither the interior, its quality nor condition, could be known to the master who signed the bill of lading, but from the representation of the shipper.

* That the bill of lading is primâ facie evidence, and [ * 301 ] of the highest nature, there can be no doubt; but that it cannot be conclusive in all cases, and, among others, in such a case as the one before us, is equally clear.

The ground of the result, to which the jury came, may not be very intelligible; but as two juries have concurred in it, we think, on that account, that the verdict ought not to be disturbed; and more especially as no objection is made to it, as being against evidence,

Judgment on the verdict 
      
      
         [Quære, if the verdict was not clearly against the evidence. — Hastings & Al. vs. Pepper, 11 Pick. 41. — Ed.]
     