
    
      G. & H. Cameron & Co. v. Richard Rich.
    
    To exempt himself from liability, the carrier must show that the damage proceeded fi om some cause which was within the exceptions to his general liability.
    When there has been neither evidence as to the condition of the vessel when she sailed, nor evidence as to any storm encountered, seams found open, and bolts loose at the port of delivery, raise a presumption that the vessel was unsea-worthy when she sailed, rather than that she encountered a storm on her voyage.
    Even where a violent storm has been encountered, if it cannot be fairly inferred that the damage resulted from the storm, a ship that has turned out to be unfit for sea, without apparent or adequate cause, ought to be presumed by ajury, to have been unseaworthy before the commencement of the voyage.
    The presumption that the unseaworthyness which has been developed, without adequate cause shown, existed at the commencement of a voyage, which has been carelessly called a rule of law, is one of those presumptions of fact which are recognized by the law, and recommended to juries as settled conclusions that have acquired an artificial force even beyond their natural influence to produce belief.
    
      
      Before Withers, J. at Charleston, May Term, 1849.
    HIS HONOR’S REPORT.
    The defendant was master of the ship Martha, which sailed from Liverpool for Charleston, in September, 184? ; and he had undertaken; as appeared from bills of lading produced, to carry, for freight, from Liverpool to Charleston, meichandize belonging to the plaintiffs, to wit: earthenware and hardware, which was acknowledged to have been received in good condition, and to be in like condition delivered in'Charleston, “all and every the dangers and accidents of the seas and navigation, of whatever nature or kind, excepted.” The earthenware was described to be in crates and hogsheads, and the hardware to be in cases and casks.
    The action was brought for damages sustained by this merchandize in its transportation. . The merchandize had been stowed in the hold of the vessel, and salt, in sacks, had been stowed above it.
    The main matter of contest before the jury was upon the question whether the damage had arisen from the dripping of salt from the bags on the deck above the merchandize; and if not, whether in such a vessel as the Martha the damage must not necessarily have arisen from a cause or causes within the exceptions that excuse the carrier.
    It will be seen, upon reference to the testimony, what contrariety of facts observed, of reasoning and opinion, respecting this very material inquiry, 'prevailed among the witnesses, the mass of whom appeared to have a just claim' to be reputed to be men of weight, of character, and of unusual experience and intelligence upon the points contested.
    It will be also seen, that the plaintiffs prevailed upon the question of evidence raised in the progress of the case, and obtained my judgment in excluding the Protest and the Log Book. If this was wrong, and those documents would have satisfied the jury that the Martha had encountered severe stress of weather, the defendant, who gained the verdict, was deprived of what I should deem a very strong position in his case.
    ■ Error is imputed to the charge in the first, fourth and fifth grounds of appeal.
    As to the first ground, touching the sea-worthiness of the vessel. Upon that point I quote the charge as written and used at the time, and now before me, as follows :
    • “ Of course the vessel must be sound and sea-worthy, or not even a storm would excuse. - If certain facts proved, as to the condition of the vessel, can be no how rationally accounted for except by stress of weather, the jury may infer that the vessel encountered such weather, and if the proof and reasoning warrant it, refer .the damage to such cause, as one that did produce the consequence now complained of.”— their attention was invited to such facts in evidence and reasoning of witness as bore upon these enquiries.
    rp^e an¿ gfth grounds assume the rule laid down to be, that the captain would be excusable if the damage did not result from his negligence ; and that he was bound only to an ordinary knowledge of navigation in foreseeing and providing against danger.
    The general rules upon this subject, in terms as stringent against the carrier as they have ever been laid down, had been urged to Court and jury by the counsel who opened the argument for the plaintiffs, and authorities were cited.
    I told the jury, in a general way, that these propositions were now no longer matters oí doubt or contest among' lawyers, (and they were not contested on this occasion by the defendant’s counsel,) and that they had been not inaptly expressed by the counsel who had urged them for the plaintiffs.
    I quote again from the language that was prepared for and used to the jury :
    “ The declaration is on the contract, and it raises all the legal liabilities that are thrown on the defendant; and the contract does not vary the liability which would have rested on the defendant by law. It any damage accrued from the salt, did some also accrue from a cause included in the dangers of the seas, of navigation, and how much from each ?
    “When the plaintiff proves damage the defendant is bound to show that it comes within the exceptions, one or other, which he or the law has made in his behalf: that is, to satisfy the jury that the damage arose from some cause proceeding from the violent action of nature, or from some hidden and unknown danger — such act of God as human prudence and forecast could neither anticipate nor evade. Nor should the prudence and forecast required of the defendant be exacted beyond the range of existing information — not such as might have evaded a danger only when the event that has occurred has disclosed the means by which alone it could have been avoided.”
    To illustrate my meaning, I referred to Franklin’s recommendation of the metallic conductor and Espy’s theory of storms, and said that, if from a storm that had beset a mariner, Franklin or Espy had deduced a law of nature, which, if known to the mariner, might have saved him from disaster, I should not hold him liable for his ignorance of such law, the result of the progressive knowledge of mankind from the combined observation and investigation of philosophers, though it was plain such knowledge was not beyond the reach of human intellect, since, in the supposed case, human intellect achieved the triumph.
    I proceeded thus: “ If the damage arose from the melting of the salt, or its bad stowage, I think the defendant liable ; for the whole, if all was thus produced ; or if by; other avoida-1 ble causes, for the extent of the damage, if less than tbe whole, and the remainder was produced by the dangers of the sea and navigation.” '
    My notes of testimony are appended to this report, and while they will apply to the other grounds of appeal, (which appear to be rather from the jury’s opinion of the facts,) they will also serve to afford a more accurate conception of the true purpose and meaning of the charge I have recited.
    EVIDENCE FOR PLAINTIFFS.
    1847, 31st August. Bill of Lading, Liverpool, by defendant, 73 crates and 8 hogheads earthenware, 4 cases and 2 casks hardware, in good order and condition, to be delivered in Charleston, “ all and every the dangers and accidents of the seas and navigation of whatever nature or kind excepted.”
    Same exception in each.
    1847, 6th September. Bill of Lading, Liverpool, of 57 crates earthenware.
    1847, 8th September. Bill of Lading, Liverpool, of 49 crates and 4 hogsheads earthenware, and one parcel.
    
      Cwpt. James Ross
    
    Chairman of Board of 5 Port Wardens. In Nov. 1847, Capt. Candler, Blake, Richard Clarke, Wm. Kunhardt, and myself, were Port Wardens. Martha’s cargo was surveyed on several days in Nov. or Dec.; so far as we saw it, a great deal of damage was observed, on the hardware, cases, bale goods, crates, and some of the casks were damaged; don’t know what they contained ; crates were thrown into the side of the vessel, i. e. into the wings; (witness shows by a plan, how the cargo was stowed ;) in lower hold were crates, boxes, casks, bales, caron-ware, Rail Road iron, hoop iron ; above that was salt, generally; abreast of main hatch, upper deck, were cases of salt fish and barley kegs on one side, and barrels of ale and porter; a great many of the crates were forward, not under the salt, some of which were injured by salt water; much dripping from salt on crates that were below it. We made a report of the survey, and the articles were specified therein according to their marks ; examined outside appearance of articles marked in-pencil on bill of particulars, 26 in number. Four of the five concluded and reported, 11 that the true cause of the merchandize being wet, damp, stained and rusted, has originated from the brine from the salt that was stowed between decks, dripping through the deck and water-way seams, and not from steam or dampness which generated from the ship, nor from sea water.” Rail Road iron aft was rusted, crusted by salt; did not see part of that; hollow ware was very much rusted; a good deal of brine in some of them ; saw some of the brine passing down as we went through the vessel; the plank on either side of the seams were wet; middle of the plank dry; did not see the salt, except a few sacks forward; first officer pointed out the place where it had been. Cross-examined — Went to survey the Martha on the second occasion; saw stains on plank, forward, of salt, where it was stowed; and the matting was wet. I was not present when hatches of upper deck was opened; crates were stowed in the wing, i. e. sides of the vessel; some were stowed forward of the salt; vessel did not pay for that; but salt was dripping through on those under it; iron below the crates was rusted, but dry; one or two casks, when I saw them turned over, were wet below; don’t know how they became so; don’t know whether bottom of crates were wet. In reply— I tasted the brine ; bales marked A. were saturated with it; vessel had no air streaks below deck to give air to the timbers ; seams of the ceiling was very tight.; well built vessel; have been captain of vessel long time ; I never stowed salt as was done in this case; should fear dripping.
    
      Richard Clark
    
    Am Port Warden ; this is 3d year; have been a branch pilot in this port; went aboard Martha 15th November; as to condition of cargo and stowage, can only confirm what is extracted above. Charles Blake differed with us ; I thought it was not the wet of the hold, for I saw brine dripping through seams above; tasted it; saw deck damp and stained by the salt that had been stowed on it, which seemed to last a long time, and from this I thought it salt, and not fresh water; did not see crates forward ; saw those on the sides and the caron-ware ; water and incrusted salt were seen on one or two of the pots, all were more or less rusted ; it was from the brine, from the quantity; saw a kind of dampness on the crates, a kind of salt appearance ; am not positive there was a white deposite on them; pots were rusty inside and out; saw casks stained in spots; it was dropping on the goods pretty much all the time. Cross-examined — Capt, Blake had been there before me; salt was all out; lower hatches were opened in my presence ; don’t know how long salt had been removed before I went down ; think it was more than 3 or 4 days; saw holes near under surface of upper deck, but don’t know any salt was in sides of vessel; did not examine to see whether seams of lower deck were tight; brine was dropping so it could be tasted by the finger; don’t know where plaintiff’s goods were stowed; saw under side of goods wet as well as upper; could only suppose it might run from upper side to under side of casks; saw no evidence of that from their joints. Inreply — Pots were pretty much incrusted all over; one sheet of rust; some places more corroded than others.
    
      B. H. Brown
    
    Examined goods from the Martha, some Cíates of earthenwaré, and hogsheads of hardware and japan ware, goods of Cameron & Co.; on such part of bill of ( particulars as I have signed: 1st, that on crates straw appeared to have been before wet; hardware much rusted from water; damaged a good deal; generally wrapped in paper, and cemented to hardware in some places ; stained in spots; put straw to tongue, very salt; P. M. Cohen joined me in the survey; we wrote a certificate to our report, estimating damage at $302 49 ; from 5 to 50 per cent; 5 per cent on crate of common earthenware dishes ; 10 per cent 8 or 10 packages assorted earthenware ; 15 per cent common earthenware ; 4 do. 16 2-3 per cent; 9 do. at 20 per cent; 2 packages do. at 25 per cent; 9 do. at 40 per cent; 6 do. at 50 per cent.— These articles had been cracked; the glaze of them. Cross-examined — Outside of crates had dried when I saw them; damp on inside ; did not see whether stained on various sides ; stained in spots; suppose the straw was not wet in England, for water was salt, though it would be there somewhat exposed ; hardware was waiters, castors, japanned ware, &c. ; plates most wet were most damaged ; we did not examine all the pieces, but inferred general damage from some specimens. In reply — Aggregate damage on hardware was $98 73.
    
      W. M. Sage
    
    Am plaintiff’s clerk; received goods from Martha; separated the damaged goods; ratify the statements of the bill of particulars ; saw on crates and hogsheads salt incrustation, and gathered it up; thought it was salt water at first, but reversed that opinion when I saw the salt incrustation ; thought them wetted in spots; some pieces were rusted together on one side ; the other sides as good as ever.
    
      W. C. Courtenay
    
    Hardware merchant; surveyed some of plaintiffs’s hardware imported in the Martha; joined Mr.
    Brown in the certificate to bill of particulars; 5 per cent damage on that I examined. Papers wet; articles rusted, not all over, except some.
    
      Mr. Arthur F. Holmes
    
    Am U. S. appraiser; examined goods on Martha ; plaintifis’s goods ; believe they were damaged by the salt that melted; saw dampness; could scrape up from to 1 teaspoonful on some of the packages: think that would not occur from sea water.
    
      Dr. P. M. Cohen
    
    Co-operated with Brown in examining the crockery, and concur with him as to damage and cause; saw white incrustation.
    
      Won. Bird
    
    Am ship-builder; examined ship Martha when in port; was called on by Petigru to examine the ship; Marsh was with me ; tried decks to see if tight; found them open in seams ; examined lower hold, and saw where water had dripped through ; strongly stained marks ; can’t say whether it arose from sea water or salt; went some time after vessel arrived ; tested seams with caulking iron ; saw marks of salt on dunnage, (small strips of board;) was not wet there; skin of vessel in the lower hold is the ceiling; no sign there of water entering from exterior; looked well; saw no blowing there, {i. e. water oozing through- between timbers ;) saw no oakum protruding from seams on lower deck ; on the bow some of the outside seams were a little open; thought it was from exposure here, as they were more open on side of sun; would not think leakage would arise from that; saw no strains apparent. Cross-examined — It was sometime after she arrived here, can’t specify; lower deck and hold were dry ; seams of deck would open here from exposure, unless kept wet; did not seem to have been caulked in 4 or 5 months.
    
      Andrew McDowall
    
    Maire been long engaged in importation ; my practice is not to import goods in vessels having salt, from injury that has occurred to goods below the salt, shown by spots, and incrustation in the folds of goods ; had some damaged on board the Martha, and I found in the goods some incrustations of salt; made no claim against the ship: I had on board one bale of long cloth: a portion exhibited spots inside; discolored outside; I thought the salt was the cause of my damage.
    • DEFENCE.
    
      Mr. Geo. Trenholm
    
    Have imported salt, &c. for many years; if there were heavy cargo below, I would infer it to be good management to stow salt between decks, though salt is generally brought as ballast. If bags taken from there {i. e. between decks) be dry, and decks dry, and dunnage dry, it would be against my experience that damage should arise from the salt to goods below. Have had much to do with salt, and never knew it to dissolve spontaneously; would if wet by water. Cross-examined — Wood in contact with salt will extract moisture from it, but never saw it so converted into brine; don’t know that the weight of the salt would be sensibly diminished. If a vessel have a variety of goods, iron, &c. think should be put in hold, and salt between decks, as good stowage.
    
      Capt. Blake
    
    Was one of the Port Wardens ; soon after arrival of Martha, opened hatches, upper deck; every thiug in the between decks looked well and dry; a crate in main hatchway was a little mouldy and damp; all the hatches were well down and fastened, so that water would not pass there ; saw salt and damage and matting; and should say I have no doubt the salt did not leak during the voyage ; am an old sea captain; saw some of the salt taken out. lower tier, and not a bag of that was damp enough to leak; and I saw no stain; strips were athwart ship and others fore and aft, matting on them and salt on the mats; the matting was damp, not wet; the upper parts of the boards were a little damp, but the deck was not; I saw nothing of it; I concia-ded from all I saw, the salt never did run ; saw main hatches opened; think in hold there was some appearance of damp and mould; it was sweating, and there was hot steam ; and saw drops of water; enquired cause of the steam ; as vessel was unladen went in hold, and saw drops on lower side of deck, which I attributed to mingling of hot and cold air; I was satisfied the drops never proceeded from salt; plank was 3 or more inches thick ; examined seams between decks; tight; tried them with knife ; think water would have gone through scuppers, if thrown on deck, and thence to lower hold, where pumps might extract it; saw nothing of salt marks running from bags of salt; some of cargo was wet on bottom, and not on top; cargo was as well stowed and dunnaged as I ever saw; vessel was first rate ; if you have passengers between decks, it would be good evidence she was tight; I would have put salt between decks with such a cargo in hold ; saw nothing unseaman-like ; she was a salted ship ; recognizes a model, a fair one, of the Martha; vessel labors most after a storm, and no wind to steady her; cargo was generally from stem to stern; iron under salt not so much rusted as some of that in after hold; I thought the cause of damage was from bottom upwards ; attributed this to the water and heat or steam; once I had a cargo damaged from steam in hold, on a voyage from Mediterranean ; attributed to coming through a high latitude instead of taking a northern passage; goods nearest keel were damaged, the ground tier; and I could not account for this by water from above ; I saw no water on deck when I went there, nor deck saturated, nor dripping; I went before the others. Cross-examined — Clark was with me on the survey; my attention was called to a dampness; water drops hanging to lower part of seams; tasted to me brackish; I differed with the other 4 Wardens ; in some pots, most all, I saw rust; no salt; none such as Mr. Holmes spoke of; saw some salt on crates in fore-hold, which I thought arose from being spilt out of a bag ; it was medium fineness; as big as grains of salt in the sacks; saw no incrustation about crates and casks, but saw stains as if from bilge-water; saw this on upper part; supposed the air produced from bilge-water caused this; have seen from such a cause the entire hold of a vessel as black as a coat in 24 hours after sailing; as to the spots, that might arise from the rolling of vessel, bringing steam in contact with particular parts, and condensing at some spots ; suppose there might be steam enough to do the mischief arising from ordinary quantity of bilge-water ; if she had any remains of corn on board, that might have contributed to accumulate steam. In reply — If vessel leaked that would injure the gronn¿ tier of goods.
    
      ' Thos. Noland
    
    Was stevedore to discharge cargo of Mar- ^. was there before the salt was taken out; assisted in taking it out; in usual condition ; bags were full; did not seem to have leaked; deck seemed pretty dry; matting between salt and deck ; no leakage on matting; saw no water ; it was dry; it is my business to unload ships; salt in good order; decks had not the least appearance of being open; good ship; lower tiers of salt like the top; cargo between decks rusty, but not wet; heat in hold great — not damp; the cargo under the salt not worse than the rest; iron under cabin rusty as any ; I saw no wet on packages; hollow ware was rusty; lot of pots turned upside down, little ones inside a large one, and the inner one was as rusty as the top; the officer looked for a leak, and saw none; rust was from stem to stern; did not observe any smell in particular; I was there from first to last, and as foreman of the stevedores ; no water at all between decks; hatches were battoned down close ; saw a kind of dry mould on the bales, top and bottom ; saw no loose salt; between decks there was no heat, nor staining of bags. Cross-examined — -We always have orders from Custom House not to discharge any thing damaged or wet; had such orders in this case; we report to Custom House any thing damaged; a good deal of salt between decks; saw no dripping or sign of wet in hold ; smelled no bilge-water; not more heat than I have often noticed. In reply — Have not for a long time seen Rail Road iron so much rusted as this.
    
      John Torrent
    
    I take jobs as stevedore ; saw part of salt on Martha; saw no package more than common between decks ; some dampness, as usual '; saw print of mats on deck, between boards, though dunnage was dry underneath; saw no water between decks; were dry when I took salt out ; saw some of the goods mouldy; some in veins.
    
      James Marsh,jr.
    
    Ship carpenter; examined Martha partially after discharge of cargo ; took two caulkers; found in some places seams on larboard side, open and strained as if from stress of weather, or heavy straining ; butts were open ; on the larboard there was oakum hanging outside of the seam in one place; starboard side, about the fore-rigging, there was a butt very open, enough to take in water, if carrying heavy sail, and by sea-rolling ; I should think she had met with something to open the seams, bad weather or going ashore; she was a good vessel, as 9 out of 10; was 3 or 4 years old I should judge ; tried some of lower deck seams, and found some of them that needed caulking, that is, caulking was loose ; think 9-10ths of water would, however, have gone through the scuppers in the situation I observed ; vessel straining would open seams, loosen the oakum; she was a salted vessel, as most eastern vessels are ; water in the hold, or that shipped in a gale, would, ordinarily; take up some the salt of a salted vessel, I should presume, and mingle it with the bilge-water; it rained just before I went with Bird, and I saw no leakage from upper deck, but the beams were sweating and water trickling down sides; and that was the case particularly that winter; how much the cargo would be wet by the splashing of the water would depend on the state of the ceiling; sound vessels do make water in a heavy sea, •which sometimes does damage cargo ; I did not think her seaworthy when I saw her, because of seams being open and oakum started, (can’t say when that happened,) and would have made considerable water in a voyage; it might have well arisen from 3 or 4 days of heavy weather. Cross-examined — I examined her from 1 to 3 weeks before Bird ; just after she discharged cargo ; (describes salted vessel ;) she drew 14 feet, I think, and that was not heavily laden for her class; I bought 3 of the pots ; saw rust; no deposite of salt; attributed her unusual sweating to being salted, and to the atmosphere.
    
      Mr. Gray.
    
    Identifies the Log-Book and Protest of the Martha, as offered in the case in admiralty and then proved by the first mate; (defendant offers Protest by captain and officers, and a mariner; plaintiff objects.) Hunt,jr.- — 2 Mc-Cord, 346, Miller & Brown v. So. Ca. Insurance Company;' Protest of master receivable in evidence. Nixon &• Harper v. Long & Romidstead, 1 Dallas, 16 ib. 11. 2 Bay, 238-9; Protest admissible of necessity.
    
      Northrop
    
    3 Esp. 490, admissible only to controvert the captain’s testimony ; 10 Eng. C. Law, Lesurat v. Porter. Motion by defendant, to strike captain’s name from the - Protest — Protest refused. Log-Book offered, and to support that evidence,
    
      Col. Hunt testifies
    I knew 1st mate; went away from here last spring in last stages of consumption; went home, as a sick man ; book has been in custody of the clerk of admiralty ; it is the original book sworn to by him, and as kept by him from day to day; (book excluded.)
    
      Thos. J. Kerr.
    
    I bought the salt in Martha ; in good order; bags full; have traded good deal in salt; there were 1200 bags ; think it not possible it could have dissolved so as to injure the cargo'; have known salt to create dampness on floor, but never to run; no evidence it even had been wet; it was in very fair order; saw no stains ; saw it in vessel; seemed dry, so far as I could see ; usually large sacks. Cross: examined — Have frequently noticed moisture on planks when the salt has been removed ; air was as dry as usual between decks.
    
      
      Mr. Crofts
    
    Consigned to my house ; saw decks when cjear. general appearance of decks dry ; in two places was ” moist where two sacks had been broken ; no appearance that sa¡( jlac¡ ¡ea]fe¿ through deck, and I could not have believed such an assertion ; saw cargo from time to time; injury was general; some casks were wet underneath; Martha was 1st class vessel, and so insured. Cross examined — Am not particularly accustomed to examination of vessels.
    
      Captain Welsman.
    
    Have brought salt between decks; would not hesitate to do it if between decks are in proper order ; think salt liable to drain and injure if deck does not prevent it; if every thing be found dry it would be such a lot of salt as I never saw; would not drain through deck ordinarily ff well caulked; lower deck ought to be as tight as the upper ; common to salt a vessel; and tossing of vessel would be likely to wet the salt, but would depeud on the condition of ceiling whether it would get to the cargo, and upon the build of the ship. Cross-examined — All vessels now over 150 tons are salted, to preserve the frame; I never imported but one lot that came up to the standard; it commonly loses ; don’t know where it goes. In reply■ — Bags do not much indicate the loss, unless great.
    
      Mr. Crofts (recalled.)
    Part of the Martha’s salt was taken from stores in Liverpool, where it had been for some time.
    
      Mr. Jervey.
    
    Was on board Martha when salt was delivered ; in good order; saw no evidence of salt running; saw cargo; some packages damaged on bottom, some on top.
    REPLY.
    
      Capt. Candler.
    
    Was at the Martha; salt was then discharged; went into the hold with a light; seams on lower side of lower deck were saturated, and water dripping from seams ; tasted it and thought it was brine, and not salt .water ; the place I saw it dripping was forward of the main hatch; have carried salt in vessels ; never put salt over goods ; put generally goods at one end and salt in centre of vessel. Cross-examined — The dunnage was all taken away ; saw no liquid between decks; hogsheads and hogsheads of water were necessary to do the damage I saw to the cargo. In reply — Packages and cases were wet, saturated ; drippings from salt as far as it went would injure; goods mostly damaged were near the lower deck; less so below ; crates forward of the iron were damaged underneath ; new salt capable of leaking a great deal; not impossible the damage was done by the salt.
    By consent plaintiffs paid freight. $546 48.
    Notice served on defendant that he should join in the survey.
    Dukes, for plaintiffs.
    
    Common carrier liable, at common law, except for the act of God, the public enemies, or the plaintiffs — tiie limitation here amounts to no more; vide Reaves v. Waterman, 2 Sp. 206-8. St. Bt. Co. ads. Bason, Harper, 262. Onus probandi, 305, 2 Rich. Swindler v. Hilliard 6p Brooks, bad stowage ; if there were leakage, presumption is unseaworthy. Best. 127: no proof of storm. 1 Bievard, 252; 2 McCord, 337: heat; defendant must prove a peril of the sea and navigation. 340-6 Smith’s Mer. Law : heat not referable to that.
    
      Hunt,jr.
    
    Was the injury from the salt? is the question. 38 Com. Law, p. 163: action was for negligence; defendant not bound to account for mysterious injury. (In this declaration 1st count is general; 2d, defendant undertook to bestow due and proper care, and did not.) Damage: see 582 Story on Bailments.
    
      Hunt,jr.
    
    Quantity of water could not have been drained from the salt; did encounter a storm, for oakum was started, and a butt; was seaworthy, and nothing else could have produced these evidences; shipped sea-water, and by rolling, added to it brine from the salt in sides.
    The plaintiffs appealed, on the following grounds :
    1. Because his Honor charged the jury, that as there was no proof to the contrary, they might infer that the vessel was seaworthy; and that from the fact of oakum being started from her timbers, and her being strained, they might infer lhat she had encountered a storm, and that this was the cause of the damage to the goods. Whereas it is respectfully submitted, that the burthen of proof was on the defendant to show that the damage of the goods proceeded from a cause sufficient to excuse the common carrier.
    2. That the plaintiffs put their goods on board the vessel in good order, and received them in a damaged state, arising from the leakage of salt stowed between decks, and therefore the defendant, as a common carrier, was clearly answerable for the damage.
    3. That even if the damage arose from leakage of the vessel, the defendant’s liability was by no means discharged, inasmuch as there was no proof of a storm or stress of weather; nor was there such injury to the hull of the vessel as to raise a presumption of the vessel’s having encountered such a storm or stress of weather as would excuse the carrier for the leakage of his vessel.
    4. Because his Honor charged the jury, that the captain was not bound to account for the damage in case the jury should conclude that it had not been occasioned by his negligence.
    5. Because his Honor charged the jury, that the captain would not be responsible if they were to conclude that the cause of damage might be one which he could not foresee or provide against by any ordinary knowledge of navigation : whereas, it is respectfully submitted, that- he would be liable, unless he should show that the damage was caused by the dangers of the sea or the uncontrollable action of nature, and should satisfactorily show the actual operation of such cause.
    
      Northrop 8p Dukes, for the motion.
    
      Hunt &f Son, contra.
   Curia, per Wardlaw, J.

-The goods were damaged in the course of their transportation. To exempt himself from liability, the carrier must show that the damage proceeded from some cause which was within the exceptions to his general liability. From what cause did it proceed ? If from the dripping of the salt, (as four of the five port wardens believed,) this was a result of bad stowage, and the carrier is answerable for it. If from dampness generated in the hold by the ordinary operation of natural causes, the carrier is answerable for that too, because by skill and care it might have been prevented. If from water admitted by the vessel in her straining during the voyage, then the carrier is not answerable, if this was unavoidably occasioned by storm or stress of weather, but is answerable if it ensued without such unavoidable cause. Stress oC weather, as almost every other fact, may be proved by circumstantial evidence sufficiently strong; but when there has been neither evidence as to the condition of the vessel when she sailed, nor evidence as to any storm encountered, seams and bolts found open at the port of delivery, raise a presumption that the vessel was un-seaworthy when she sailed, rather than that she encountered a storm in her voyage. Even where a violent storm has been encountered, if it cannot be fairly inferred that the damage resulted from the storm, a ship that has turned out to be unfit for sea, without apparent or adequate cause, ought tobe presumed by a jury to have been unseaworthy before the commencement of the voyage. This presumption, that the nnseaworthyness which has been developed, without adequate cause shown, existed at the commencement of a voyage, which has been carelessly called a rule of law, is one of those presumptions of fact which are recognized by the law and recommended to juries as settled conclusions that have acquired an artificial force even beyond their natural influence to produce belief. This presumption ought to have been brought to the view of the jury when their attention was turned to the inferences that might be drawn from the condition of the vessel when her cargo was discharged. In neglect of this presumption the jury have relieved a common carrier from the burden, which lies on even an ordinary bai-lee, of showing how the damage was done.

The motion for new trial is granted.

Richardson, O’Neall, Evans and Frost, JJ. concurred.

Motion granted.  