
    Moses Seller v. Steamship Pacific, Samuel J. Hensley, Claimant.
    
      In Admiralty.—Cause of Contract, Civil and Maritime.
    
    July, A. D. 1861.
    Adjourned from Mat Term.
    1. In an action against a common carrier, the libellant makes a prima facie case, on the production of the receipt of the carrier—“ Received in good order.” But these words do not constitute an agreement; they are a mere recital, and may be contradicted by the carrier.
    2. In the federal courts, the rule of law is, that a common carrier may limit his common law liability by an express agreement, so far as the law makes Mm an insurer, but not for the negligence of himself or his servants.
    3. Nothing short of an express stipulation will constitute such an agreement. It must not depend upon implication or inference, or conflicting and doubtful evidence. Mere notice to the shipper is not sufficient.
    
      4, Where the drayman of the shipper, on the delivery of a package, takes a receipt from the freight-clerk of the ship, containing the words, “ not accountable for contents;” this, of itself, does not constitute such an agreement ; it is a mere ex parte proposition on the part of the carrier, after the receipt of the package; and, to exonerate the carrier, there must be direct or unequivocal evidence of the assent of the shipper;
    6. In a suit in rem, it is not necessary to charge the ship as a common carrier; but the rule is otherwise where the suit is in personam. But, in the former case, it must appear from the evidence that the ship was employed in the business of a common carrier.
    6. The burden of proof is upon the shipper, to show the value of the goods injured.
   Heady, J.

Tbe libel in tbis cause was filed on the 22d of April, 1861, and alleges that on or about the 25th of January, 1861, the said steamship, being about to depart from the port of San Francisco, on .a voyage to the port of Portland, received from the libellant, in good order, one case containing two looking-glasses, of the value of $150; and that the master of said steamship, in consideration of certain freight and average to be paid by said libellant, contracted with said libellant to convey said case and its contents to Portland aforesaid, and there deliver the same to the libellant in good order. That the said master caused a receipt to be given' to said libellant, whereby it was acknowledged that the said dase and contents, marked “ M. S., Portland, looking-glasses,” were received on board said steamship “ in good order.” That the said steamship shortly afterwards departed on the said voyage, and that by the negligence of said master, his mariners and servants under his charge, said looking-glasses were so damaged as to be wholly lost to the said libellant, to his damage $450.

On the day the filing of the libel process was issued, upon which the steamship was arrested, and afterwards, on the 27th of April, Samuel J. Hensley appeared, made a claim to the ship as sole owner, and answered the libel; alleging, substantially, that upon information and belief he denies all the allegations of the libel in the manner and form pleaded ¡ but admits the receipt of the case. That the contents were in bad order at the time of delivery; that the officers of the ship observed it, and refused to give the drayman who brought the case to the wharf a receipt as for goods in good order, but gave him one containing the words, “not accountable for contents.”

The receipt actually given, as appears from the deposition of the drayman, Frederick Beeson, to which it is attached, is in these words : “ Received from A. Frank, in good order, on board steamer Pacific, for Portland,-following packages, marked “ M. S., Portland, one case of looking-glasses ; not accountable for contents.” (Signed,) “Philips.” A. Frank, spoken of in the receipt, was the boss drayman, and Beeson was his employee.

From the testimony, it appears that a Mr. Adler, in San Francisco, a short time before the sailing of the steamship, purchased two large fancy looking-glasses, about eight feet in length and three feet in width, for the libellant. That Adler sent them to the house of R. A. Swain, a crockery and looking-glass dealer, to be packed for shipping. That they were paeked in a redwood case in good condition, and in a manner well calculated to resist the ordinary incidents of a voyage to Portland. That from the house of Swain they were taken, with ordinary care, on a spring dray, to the wharf, where the steamship Pacific was loading. That the case was taken from the dray by the drayman, assisted by Philips, the freight clerk of the steamship, and placed on the wharf alongside of the steamship ; Philips giving the drayman the receipt above mentioned, with the words, “ not accountable for contents,” because the case contained looking-glasses, saying that it was the customary way of receipting for such articles. The case was in good order at the time, and also the contents, so far as either the drayman or clerk observed, and there does not appear to have been any suspicion by them that the fact was otherwise. The case lay on the wharf about twenty-four hours, when it was stowed between decks. On the 27th of January the ship sailed for Portland, and arrived here, after a usual voyage, on Sunday morning following. The case was discharged upon the wharf .of Couch & Planders, and upon turning it over in discharging, a rattling was heard inside as of broken glass. On Monday morning, Adolph Miller, the drayman of the libellant, went to the wharf to get the case. As soon as he got there he heard from some one on the wharf that the glasses in the case were broken. The case was standing on end on the wharf; Captain Planders, the wharfinger, was delivering freight at the time for Philips, the freight clerk, who was temporarily absent. Miller looked at the case, and observed on the side, about eighteen inches from one end, that there appeared to have been a sharp instrument, or thing like a crowbar, thrust through the boarding of the case, which splintered the board inwardly. That he saw through the crack or hole that the glass was broken; that the pieces of glass were wedge-shaped; that the cracks radiated from a common centre, as if the glass had been struck by some hard, sharp-pointed instrument. Miller refused to receipt for the case in good order; Planders proposed that it should be taken to the store of the libellant; that one of the ship’s officers should go with it, and there it should be opened and the damage ascertained. Thereupon the case was put on the dray, when Poole, the purser of the ship, came up and said, that ease should not go until the freight was paid. This was contrary to the usual custom of the ship, with well-known consignees, resident in Portland, of whom the libellant appears to be one. The result was, that the case was taken by Miller, under the direction of Flanders, into the warehouse of the wharfinger, where it still remains. The board that had the hole in it has been produced in court by the claimant. It came in two parts, on taking it off the case. It appears to have been broken in by a blow from the outside, and upon either side of the opening is a bruise about two inches in length, as if made by some hard substance pressing between the edges, and stained of that dark iron color which iron imparts to fresh wood when pressed hard against it. The glass is between one-fourth and three-sixteenths of an inch thick; no fragments of the ornaments have been observed among the pieces of glass in the case. There is no evidence that any of the fastenings used to secure the glasses in their position, have given away.

The only witness who differs from this statement of the facts, is Burns, the first officer, and he says that he was present when the drayman- brought the case to the wharf in San Francisco. That he assisted in removing it from the dray; that he heard a rattling among the contents at the time, and that the freight clerk gave the receipt, “ not accountable for contents,” at Ms direction and instance, because the contents appeared not to be in good order. That he superintended stowing the case; that it was done carefully, but that every time it was moved, from San Francisco to Portland, the contents rattled as if broken.

Philips, the freight clerk, and Beeson, the drayman, directly contradict Burns as to what took place upon receipt of the case. Both are interrogated upon this point directly, and both say, in unqualified terms, that he was not present; that the clerk gave the qualified receipt, not on account of the condition of the package or its contents, but because of their Tcind and quality. The receipt supports the statement of the clerk and drayman, and directly contradicts that of Burns. It does not assei-t that the goods are damaged, but the opposite—that they are “ in good order P Philips heard no rattling in the case, until it was put on the wharf at Portland, when Burns called his attention to it. At the time of taking the case on board, Philips remembered that Burns called out -to him, and asked him what was in it. Philips told him. Burns then said there was something rattling in it; but Philips did not hear it. The case was a large one, and seems to have been the only one of the kind shipped that voyage. It is hardly credible that if Burns had on the day before been present, when the drayman brought the case to the wharf, had assisted in taking it off the dray, had observed the words, “ looking-glasses,” on the case, had heard them rattle as if broken or loose, and on that account had dictated to the clerk an unusual receipt, against the wishes of the drayman, that he should, when superintending the stowing of the case the next day, with the case before him, turn to the freight clerk on the wharf, and ask him what was in it.

As a rule of law, the libellant makes & prima facie case on the production of the receipt, containing the words, “received in good order.” It has been contended that the claimant cannot contradict this recital; but I think otherwise. The words, “ in good order,” are like the recital of any fact in an ordinary receipt for money, open to contradiction or explanation. They do not constitute an agreement, although contained in one. But the burden of proof is on the claimant. He must show the fact affirmatively that the goods were not in good order, or he is bound by the recital in the receipt. This he has failed to do; and, on the contrary, the libellant has satisfactorily shown, aliunde, the receipt, that the case and its contents' were in good order at the time of delivery to the ship.

But the claimant contends, that the words in the receipt, “ not liable for contents,” constitute a special agreement, by which the steamship and her owners are exempted from all liability as insurers, and requires of them only the exercise of that ordinary diligence and care which the law exacts from any ordinary bailee for hire.

The question of how far a common carrier can limit his common law liability, by special agreement with the shipper, has been thoroughly and ably argued by counsel. The authority of the courts of New-York has been relied'on by the libellant for maintaining the old common law rule, that common carriers are insurers; that the law makes them so; that. any agreement diminishing this liability is void, as contrary to public policy, encouraging fraud, and productive of litigation.

While I think that any innovation upon the common law rule will always be found the cause of more harm than good, yet I think this court is bound by the authority of the case of The New-Jersey Steam Navigation Company v. M. Bank, 6 How. R. 344. In that case the court held, that a common carrier might, by special agreement with the shipper, limit his liability as an insurer, but not for the negligence of himself or servants. But they further held, that “ the burden of proof lies on the carrier” to show such an agreement, and that “ nothing short of an express stipulation, by parol or in writing, should be permitted, to discharge him from duties which the law has annexed to his employment. The exemption from these duties' should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.” Tided by this rule, do the words in the receipt, under the circumstances, constitute such an agreement ? If they do, then, although the case was in good order when delivered to the steamship, the shipper takes all risks, except those which arise from, or are incurred, by reason of the negligence of the carrier; and, further, the burden of proof is upon the shipper, to show that the injury resulted from such negligence, and not from accident, which ordinary care and diligence could have guarded against; or, in other words, unavoidable accident. No mere notice to the shipper of such intention on the part of the carrier is sufficient to constitute such an agreement, or raise the presumption that the shipper acquiesced in, or consented to, the terms of such notice. The obligation of an insurer (acts of God and the public enemies excepted) are imposed upon the common canier by law, and cannot be avoided by .any expression of intention on his part so to do, without the express assent of the shipper to such intention. As the court says, in the case just quoted, “ If any implication is to be indulged from the delivery of goods, under the general notice,” (that the carrier would not be responsible,) “ it is as strong that the owner intended to insist upon his rights, and the duties of the carrier, as it is that he assented to their qualification.” (N. J. S. Nav. Co. v. M. Bank, 6 How. 344; Hollister v. Nowlen, 19 Wend. 234.) When the clerk (Philips) inserted in the drayman’s receipt the words, “not accountable for contents,” it was an ex parte proposition by the ship after the receipt of the goods, without the knowledge or assent of the shipper.

The drayman, Beeson, was a mere bailee for hire, to take goods to the wharf and deposit them in the charge of the ship. Such employment of itself gave him no authority to make any contract for the shipper, or assent to any proposition on the part of the carrier to qualify his liability. The evidence shows that the drayman informed the shipper of the terms of the receipt immediately, and because the shipper did not reclaim the case, but allowed it to remain with the carrier, it is claimed that he assented to the proposition, and is bound by it. But this would be to establish such an agreement “ by implication and inference,” when the “ implication and inference” is just as strong that the shipper intended to insist upon his rights and the liability of the carrier.

Besides, the evidence shows that the shipper was not merely passive, but that he at once expressed his dissatisfaction to the drayman in strong terms, and that the drayman communicated the fact to the clerk soon after, and while the case was on the wharf. As to the custom which Philips speaks about, not to sign for looking-glasses,” unless tbe words, “ not responsible for contents” were in the receipt; as a matter of fact, it appears to have depended, upon the whim or caprice of the person receiving goods at the time. But if it were otherwise, it makes no difference. The law, and not such a custom, ascertains and determines the rights and liabilities of shippers and common carriers. Such pretences of custom as this appears to be, if allowed to modify the law of the land, would place it in the power of common carriers to make and unmake the law as they choose.

I conclude, therefore, that these words, “ not responsible for contents,” amount to nothing, and in no way affect the rights of the shipper or the liability of the carrier. This being the case, and it appearing that the goods were “ received in good order,” the burden of proof lies on the carrier to show that the injury to the goods arose from the only exceptions to •his liability—that is, the act of God or the public enemies— neither of which is pretended or attempted. This view of the case makes it unnecessary to determine, as a matter of fact, how the glasses were broken. If the truth is ever known, it is not unlikely that it will be found that either by accident or wantonly, some iron instrument, as a crow-bar, was thrust through the board produced in court; that it passed through some of the openings in the top-mounting of the glass next to that side, without harming them, and then struck the plate of the other glass near to the base or bottom, and broke it. The glasses were packed in the case in a reverse position, and that this happened during the twenty-four hours that the case was lying on the ship’s wharf at San Francisco. The case has remained in the possession of the agents of the ship and the claimant, and if they thought it would tend to establish the fact, that the package was not in good order when received, they might have opened it, and had an examination made of its condition.

A point was made in the agreement for the claimant, that the libel did not charge that the steamship was employed as a common carrier, and that therefore the ship was only liable as a private carrier. Upon the examination of the authorities and precedents within my reach, I find the practice to be, that when the suit is in personam, against the master or owners of the vessel, it is necessary to charge them in the libel as common carriers, or they will only be held to the liability of private carriers. (Story on Bail. § 504.) But when the suit is m rem, as in this instance, the rule seems to be otherwise. Because, I suppose it would, to say the least, be inaccurate to charge an inanimate thing, as a ship, which is only the vehicle of carriage, as a common carrier.

The suit proceeds against the ship, as a ship ; but, I think, to hold her to the responsibility of a common carrier, it must appear in the proof that she was employed by her owners, or those having charge of her, for that purpose at the time. No testimony appears to have been taken for this direct purpose, but incidentally it appears all through the evidence sufficiently to make the fact undoubted.

The only remaining question is the amount of the damages. Without determining at what port the value of the goods should be estimated, I have concluded to take the testimony of Leopold Greenbury as to the value of the glasses. He is the only person that speaks of their value, who saw them. He was the salesman of Swain, the house where the glasses were packed. Selling looking-glasses is his business. All the rest of the testimony to this point is mere guess-work of parties, without any special knowledge of the trade, or the particular articles in question. Besides, the burden of proof lies on the libellant to show the value of the goods. The carrier is not presumed to have any special knowledge or means of information on the subject. It is no hardship for the libellant to make his proof. He knows what he gave for the glasses. It would have been easy to have taken the deposition of some member of the house in San Francisco, where the glasses were purchased, or of his agent, Mr. Adler, who purchased them for him. The omission on the part of the libellant to do this, is well-calculated to make the impression that the testimony would not support his claim for damages to the amount of $450. G-reenbury swears that the glasses were worth $150 apiece at wholesale, and $200 at retail, somewhat owing to the customer. Take the mean difference between the two sums—$175 apiece—making $350 for the two, and add interest at the rate of ten per cent, per annum for six months, $17, making, in all, the sum of $367, for which a decree will be entered for the libellant and for costs.

Williams <& Nugent, for libellant.

8hattuck, for claimant.  