
    Arend vs. The Liverpool, New York and Philadelphia Steamship Company.
    A cask of wine, shipped from Antwerp to Liverpool, was received in good order by the defendants, as 'appealed from their bill of ladihg, and they undertook, for a reward, to deliver it at New York, stipulating against liability by loss from leakage, damage from stowage, straining or other peril of the seas. The cask arrived at New York, in good condition, but without any contents.
    
      Jfield, 1. That the cask having been received in good order, the defendants were . bound to prove that the loss occurred within some clause of the bill of lading, exempting them from liability.
    2. That proving that the ship had a tempestuous voyage; that the cargo was well stowed; and that the hatches were properly secured, &c., did not tend to shift the burden of proof.
    3. That the cask being in good order, on arrival, showing that the severe weather had not injured it, there could he no conclusive presumption that the wine was lost by stress of weather, or peril of the seas.
    To ground an inference that the loss occurred from leakage, in some manner, a stevedore was asked as to Ms experience of the effect of heavy weather on fluids in casks, during a sea Voyage; and also as to the condition of the other casks containing fluids, that came out of the vessel at the same time as this. But it was not offered to be shown that casks perfectly sound at the termination of the voyage ever lost their contents in consequence of severe or heavy weather during the voyage. Held that any experience short of this would fall far short of justifying a legal conclusion that this wine was lost from a sound cask by stress of weather; and that the evidence was immaterial, and properly excluded.
    
      Held, also, that the omission of the plaintiff to prove that the government duties had been paid, on the wine,.and a custom-house permit obtained to land it, in no manner excused the want of wine in the cask. That it was useless to require the consignee to pay duty, or to produce a permit to land .a cask of wine, when the wine was gone.
    
      A custom-house officer, who kept an entry of an application for a permit to land the cask of wine, was asked what he found, on his memorandum, as to the valuation of the cask. The answer was excluded by the judge, unless evi- ' dence should be given to connect the importer with the memorandum. Held that this rule was correct; the evidence being worse than hearsay, unless the memorandum was brought to the knowledge of the importer, at the time it was made, or while he remained the owner.
    Interest, or bias, although they may be taken into consideration in weighing the value of evidence, do not disqualify a witness.
    APPEAL by the defendant from a judgment entered in favor of the plaintiff on the verdict of a jury for $533.20, the value of a cask of wine. The complaint alleges that the defendants are a corporation and common carriers of goods, &c., for hire. That about the 30th day of January, 1868, at the city of Liverpool, the plaintiff’s assignor, one Charles Wehle, delivered to the defendants a cask of wine of the value of $500, to be transported to New York city, for a reasonable consideration,' and to be safely delivered to him in New York city. That the defendants, in violation of said agreement and of them duty as common carriers, refused and still refuse to deliver said wine. It then alleges a demand of the wine, a refusal to deliver, a conversion of it by the defendants, and also the sale, transfer and assignment to the plaintiff. The answer of the defendants admits that on the 30th day of January, 1868, there was shipped on board of one of their vessels, a cask of wine to be shipped from Liverpool to New York, and there delivered to the plaintiff’s assignor, but denies the value; also the refusal to deliver the merchandise; also knowledge of transfer to the plaintiff. It alleges that during the voyage the wine leaked out, and when the cask was landed it was empty, and that by the terms of the shipping' contract or bill of lading given by the defendants, they are not liable for leakage. The evidence given on the trial established the facts that the plaintiff’s assignor purchased, in the winter of 1868, a barrel of wine in Cologne, Europe, and shipped the same by the defendants, who were common carriers from Cologne to Liverpool, and from Liverpool to Hew York city. That the defendants received the cask and wine in good order and condition. That when the cask arrived in Hew York city, the defendants notified the plaintiff’s assignor of its arrival, who went to the defendants for the wine, demanded a delivery of the same to him, offering to pay the freight and charges ; but that the defendants refused to deliver the wine. That he went to the dock, where the ship was unloading, saw the cask, identified it as his, examined it, found it in good order, but empty, the wine gone. The fact that the cask, when landed, was in good order and condition, was shown without contradiction by the evidence of several witnesses. The value of the wine was shown to have been $400 in gold. The sale, assignment and transfer to the plaintiff before commencement of suit, and demand and refusal to deliver, after sale to the plaintiff was also proven. The jury found a verdict' in favor of the plaintiff for the value of the wine, less the freight and duties.
    J. W. Gerard, Jr., for the appellants.
    I. 1st exception. The question asked of the witness (plaintiff’s assignor) as to what amount he sold the wine for to the plaintiff, should have been allowed. 1. It was a fact for the jury, tending to show value, and to contradict the witness who, on his direct examination, had sworn the wine was worth $500. 2. It was evidence tending to show the bias or interest of the witness, i. e., by showing that the sale of the claim to the plaintiff, his clerk, for a mere nominal consideration, was done as a mere cloak or cover, so as to let him appear to the jury as a disinterested witness, having no concern in the suit. It was evidence, therefore, affecting his credibility.
    II. 2d exception. The question should have been allowed, as to the deterioration of such wines on a voyage. It was appropriate on the question of value. The value proved was merely as the wine was in Cologne in November, 1869; the vessel arrived here in March, 1870. The plaintiff proved the value as at this port. The effect of such a voyage on the wine was a legitimate inquiry, as any damages were to be regulated by its value here. (Rice v. Ontario S. Co., 56 Barb. 384. Sturgess v. Bissell, 46 N. Y. 462.)
    III. 3d exception. The complaint should have been dismissed, for the reason urged, i. e., that the plaintiff had no right to claim the delivery of the cask of wine from the company without producing a proper permit from the custom-house, inasmuch as the wine was foreign goods, liable to duty, and which, under the statutes and rules regulating the customs, could not be lawfully demanded or delivered until the full duties were paid. It appears fully, that the plaintiff’s assignor not only had not entered the goods nor paid the duties, but was endeavoring to defraud the United States authorities. Of the above United States statutes, the court takes judicial notice. Wine of this character was subject to a duty of a dollar a gallon, and 25 per cent, ad valorem. (Law of June 30,1864.) If the defendants had delivered the wine under the circumstances, they would have been accessories to a case of smuggling, and subjected their vessel to forfeiture. The plaintiff has shown that he was not in a condition to legally demand the wine.
    IT. 4th and 5th exceptions. The questions asked of the stevedore, (an expert of twenty years’ experience,) as to the effect of heavy weather on cargoes, and particularly fluids in casks, on sea voyages, was a proper question, having a bearing upon the question of the loss, and it should have been allowed as showing or tending to show how the loss occurred. There was no other way of proving the leakage except indirectly, and by circumstantial evidence. We could not be present, battened down in the damp hold of the ship, to witness the leakage, .drop by drop. The effect oí certain weapons or blows in producing injuries, is always allowed in criminal trials; also similar evidence in other cases, where the testimony is a matter of special knowledge and experience; it has been allowed also as. to the nature and effect of sea perils. (Moore v. Westervelt, 27 N. Y. 234. Walsh v. Wash. Ins. Co., 32 id. 427. See also Pullman v. Corning, 5 Seld. 93. Price v. Powell, 3 Comst. 322.)
    V. 6th and 7th exceptions. The question put to the stevedore as to the-condition of the rest of the casks, containing fluids, that came out of the vessel at the same time as this, should have been allowed, as tending to show how the loss occurred, and the effect of the weather on the cargo generally, as straining and disturbing it, and as corroboratory of the other evidence as to leakage. In a case of this nature, direct proof as to how the wine got out of the cask is impossible. Circumstantial facts, tending to establish inferentially the main fact, could alone prove it, and the judge was wrong in shutting them out. The books are full of cases allowing questions of this nature, and even the actions of a party in other matters as proof of knowledge, or crime, or intent. (Rex v. Long, 4 Carr. & Payne, 398. Hinds v. Barton, 25 N. Y. 544. Wilkins v. Earle, 44 id. 173. Slater v. Wilcox, 57 Barb. 604.)
    YI. 8th and 9th exceptions. The judge improperly excluded the memorandum of entry, which contained a valuation of the wine by the plaintiff’s assignor. It was part of the res gestae, and the plaintiff’s assignor had been abundantly connected with the transaction and entry already. All his acts and admissions, therefore, bearing upon the question, were proper. All verbal declarations of a party at the time, relative to the occurrences or subject matter of the suit, are part of the res gestae; and all declarations and admissions of a party material to the issue are proper. (Tompkins v. Salt-
      
      marsh) 14 Serg. & R. 275. Ross v. Bank of Burlington, 1 Aik. 43. Portland v. Lewis, 2 Serg. & R. 197, 203. Cook v. Barr, 44 N. Y. 158. Schenck v. Warner, 37 Barb. 258. Williams v. Sargeant, 46 N. Y. 481.)
    YII. 11th exception. The question to the customs official, “Will you state under what circumstances, and on what valuations free permits are given in the customs department ?” was a proper'one, and should have been allowed. Also the question, whether such permits are given only on certain valuations. The plaintiff’s assignor having got a free permit, which permits are given only on certain declared values, the regulation as to the required value should have been allowed, as it would have shown or tended to show the valuation the plaintiff’ s assignor put, himself, on the goods, and was, therefore, evidence of value for the jury, and as tending to contradict him.
    VIII. 13th exception. The dismissal of the complaint should have been ordered, on the grounds that the defendants were not liable under the exempting clause, the proof being that the ship labored heavily, and that the voyage was of unusual severity, and that the cask was landed empty. The defendants showed enough for the jury, presumptively, at least, that the loss happened from stress of weather. Which proof and presumption the plaintiff in no way disproved or removed, and offered no testimony on the subject. Therefore the leakage was presumptively established without rebutting testimony; and in default of such testimony, must be considered to have been established as a legal conclusion. And the presumption should have been so adopted by the judge. (Clerk v. Barnwell) 12 How. U. S. 272. Rich v. Lambert) Id. 357. Tysen v. Moore, 56 Barb. 442. Muddle v. Stride, 9 Carr. & Payne, 380.) The case of Tysen v. Moore holds that when it is established that the cargo was properly stowed, the damage will be ascribed to the perils of the seas, unless it is affirmatively shown to be due to other causes; and the carrier, under a bill of lading exempting him from liability for loss occurring through the perils of the sea, will not be liable for the damage, unless it is affirmatively shown that the damage might have been avoided by the exercise of proper skill. (The Bark Olders, 3 Beav. 148.)
    IX. 14th exception. The judge should have charged as requested in the second request—i. e., that the cask being landed empty, the presumption is the leakage occurred on the voyage, the undisputed evidence being that the voyage was a tempestuous and stormy one. Where the presumption of law is in favor of a party, it is error to refuse so to charge. (Potter v. Chadsey, 16 Abb. 146.)
    X. The court should have charged as requested,- (15th exception,) as to the point of the proper stowage, there being no evidence to the contrary, but positive, undisputed proof that it was properly stowed, as shown above. A request for instruction to a jury must be carried out by the judge, if the facts are undisputed. (Doughty v. Hope, 3 Denio, 249 ; affirmed 1 Comst. 79.) The court is bound to charge upon evidence when his attention is directed thereto. (Parsons v. Brown, 15 Barb. 590.)
    
      Charles Wehle and L. H. Rowan, for the respondent.
    I. It being admitted that the defendants are common carriers, they are liable for all loss, except such as occur through the act of Glod or public enemies. (Elliott v. Rossell, 10 John. 1. Dorr v. Steam Navigation Co., 11 N. Y., 485. Miller v. The same, 10 id. 431.) They might have limited their liability by an express agreement with the owner, but could not have done it by mere notice. (Dorr v. Steam Navigation Co., 11 N. Y. 485. Blossom v. Dodd, 43 id. 264.) They cannot relieve, themselves from loss caused by their - own negligence or want of care. (Steinweg v. Erie R. R. Co., 43 N. Y. 
      123.) As the jury must have found as a fact that the wine was lost through the fault or negligence on the part of the defendants, or them agents, it follows, as a matter of law, that they are liable, notwithstanding the exemption contained in the bill of lading. (Steinweg v. Erie R. R. Co., 43 N. Y. 123. Bissell v. N. Y. Cent. R. R. Co., 29 Barb. 602. Guillaume v. Hamburgh Am. Packet Co., 59 id. 644.) A stipulation contained in the bill of lading against liability for gross negligence would be in effect a stipulation for a breach of duty, and void as against public policy; and this is applicable to that portion of the receipt which excepts barratry, &c. (Meritt v. Earle, 29 N. Y. 115.)
    II. The defendants’ admitted receipt of the wine in good order and condition, and the loss and refusal to deliver when demanded, on arrival in Hew York, the port of destination, raised the presumption of negligence and threw upon the defendants the burden of proving that the loss was within the exemption. (Burnell v. N. Y. Cent. R. R. 45 N. Y. 184.) 1. The arrival of the cask in Hew York, in good order and condition, proved conclusively that the wine must have been taken out by some person, and that could only have been done through the fault and negligence of the defendants. 2. The entire absence of any evidence to show any marks or discoloration on the cask, or any indication or evidence of leakage, repels the idea that the wine leaked out. It got out by some other means than by leakage, and the defendants are liable. 3. The answer of the defendants only claims exemption on the ground of leakage, and it contains no pretence or claim of any exemption from liability except that of leakage. The evidence of stowage, rough weather and hard passage was entirely immaterial; it raised no presumption of leakage; while the fact that the cask was landed in good order, raised the presumption that the wine was taken out by some of the defendants’ agents on board of the ship on its passage to this port.
    III. The defendants, being common carriers, became insurers of the goods, and could only limit that liability, if at all, by an express contract. They must show that they limited their liability by such contract, and that the loss was within the exemption and they without fault. In this case, they must show that the loss was occasioned by leakage, that" being the only ground of exemption claimed by the defendants. (Burnell v. N. Y. Cent. R. R. Co., 45 N. Y. 184.) In the case at bar there was no such contract of agreement. The evidence of Mr. Wehle shows that the only bill of lading or contract he ever received, saw or knew of, Was what purported to be a copy of a bill of lading sent to him by the defendants after the arrival of the goods in New York. This is not contradicted by the defendants; nor do they prove or offer to prove that any other bill of lading or contract was given. It is submitted that a copy of a bill of lading thus coming to the plaintiff, could not bind him, or absolve the defendants from their strictdiability as common carriers. In the case of Corey v. N. Y. Cent. R. R. Co., decided in April, 1871, the Court of Appeals held, that conditions contained in the bill of lading, not delivered until after the shipment and loss of goods, though before the loss was known, did not control the. rights of the shipper. (See Bostwiek v. Balt, and Ohio R. R. Co., 45 N. Y. 716.)
    IY. The jury having found that the loss occurred through the negligence of the defendants, and there being sufficient proof to support such finding, the court will not disturb the verdict. And the jury having found their verdict for the plaintiff under an instruction of the court “ that if the jury believe that the contents of the cask was lost by leakage, the defendants are entitled to a verdict,” must have necessarily found as a fact that the wine was not lost by leakage.
    
      V. The motion of the defendants for a nonsuit was properly overruled; when the plaintiff rested, he had made out a strong case of negligence. The proof substantiated every allegation in his complaint, and the exception of the defendants to the refusal of the court to nonsuit was not well taken.
    VI. The judge substantially charged every request made by the defendants. The court correctly stated the law to the jury bearing on the case.
    VIL The exceptions to the admission and rejection of evidence on the part of the defendants were not well taken. ,
   By the Court, Leonard, J.

A cask of wine, shipped from Antwerp to Liverpool, was received in good order by the defendants, as appears from their bill of lading, and they undertook, for a reward, to deliver it at ¡New York, stipulating against liability by loss from leakage, damage from stowage, straining or other peril of the seas. The cask arrived at ¡New York, in March, 1868, in good condition, but without any contents. The defendants set up, as an affirmative defence, that the wine leaked out. They also contested the alleged value.

The defendants attempted to prove several remote and indirect facts and circumstances from which it was sought to be inferred that the loss occurred from leakage in some manner, which the court excluded, and the defendants excepted. A stevedore was asked as to his experience of the effect of heavy weather on fluids in casks, during a sea voyage; and also as to the condition of the other casks containing fluids, that came out of the vessel at the same time as this. It was not offered to be shown that casks perfectly sound at the termination of the voyage ever lost the fluids which had been put into them, in consequence of severe or heavy weather during the voyage. Any experience short of this, would fall far short of justifying a legal conclusion that this wine was lost from a sound cask by stress of weather. The evidence was wholly immaterial, and properly excluded. A motion was made to dismiss the complaint, at the close of the plaintiff’s evidence, for the reason that he had not proved that the government duties had been paid, on the wine, and a custom-house permit obtained to land it. This omission in no manner excused the want of wine in the cask. It was nonsense to require the plaintiff to pay duty, or produce a permit to land a cask of wine, when the wine was gone.

The importer of the cask of wine, after learning that the defendants had suffered a loss of the wine, assigned his claim against the defendants to the plaintiff, who brought the action. The assignor was asked, on cross-examination, what he sold it for, to the plaintiff. It was insisted that the answer would tend to show bias and interest in the witness. The price for which the claim was sold was immaterial, and might tend to prejudice the mind of the jury. The assignor had no legal claim against his assignee, in respect to the price. Interest, or bias, do not disqualify a witness. They may be taken into consideration in weighing the value of evidence, but there could be no legitimate inference, as to interest or bias, against the witness, on account of the price.

Another witness was asked if this wine did not often deteriorate in coming to this country. The testimony was excluded, and an exception taken. The wine not having been delivered, it was purely conjectural whether it would have deteriorated. It was not claimed that such wine always deteriorated. The inquiry could prove nothing certain or material, as to the wine in this case.

A custom house officer, who kept an entry of an application for a permit to land this cask of wine, was asked what he found on his memorandum as to the valuation of this cask. It was excluded by the judge, unless evidence should be given to connect the importer with the memorandum. This rule was correct. It "was worse than hearsay, unless the memorandum was brought to the knowledge of the importer, at the time it was made, or while he remained the owner.

[First Department, General. Term, at New York,

November 4, 1872.

Leonard and Gilbert, Justices,]

A witness acquainted with custom-house business and regulations was asked to state under what circumstances, and on what valuations, free permits are given at the custom department. The question was excluded, and an exception taken. The inquiry tended to prove nothing material. It was not shown that the importer had applied for a free permit. It was not claimed that there was any statute about permits. It was of no consequence what were the rules or regulations of the custom-house. It does not follow that those rules are always observed. I believe it is not unusual for the officials to disregard them wholly.

The cask having been received in good order, the. defendants were bound to prove that the loss occurred within some clause of the bill of lading exempting them from liability. Proving that the ship had a tempestuous voyage; that the cargo was well stowed, and that the hatches were properly secured, &c., did not tend to shift the burden of proof.

The cask was in good order on arrival, showing that the severe weather had not injured it, and consequently that the loss of the wine did not happen from that cause. At least that question could not be taken from the jury, as requested at the close of the evidence. There could be no conclusive presumption, in this case, that the wine was lost by stress of weather, or peril of the seas,

The matters embraced in the third and fifth requests of the defendants’ counsel to the court, in relation to the charge on mere questions of fact, were fully covered by the charge as given.

The judgment should be affirmed, with costs.  