
    Henry J. Baker vs. H. C. Brinson.
    Where a common carrier limits his liability by special contract, the onus of showing not only that the cause of the loss is within the terms of,the exception, but also that there was no negligence, is on him.
    BEFORE WITHERS, J., AT CHARLESTON, SPRING TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ The question is as to liability of defendant, as common carrier, for the value (proved to be twenty dollars) of a stove, broken on ship-board, in a voyage from Philadelphia to Charleston.
    “ The evidence is, defendant admitted the stove was broken before delivery here — that the injury was such as to render it useless — that this could not have occurred under careful handling — that it might be, if the.stove rested upon a basis not coextensive with its own, that the rolling of a vessel, in a storm, might have produced the injury — that the vessel, in this instance, made the usual passage of six days — that in the bill of lading “rust and breakage” are excepted — that there was no deck load, and the ship was not half full — that the stove, therefore, was stowed in the hold, where it should have been.
    “ Upon this case my judgment is, that, although the shipper and carrier may agree to stipulated exceptions from the entire scope of the carrier’s common law liability, yet (as in Singleton vs. Hilliard, 1 Strob. 203, and Swindler vs. Hilliard ^ Brooks, 2 Rich. 286), that in such cases the carrier must be held to “ strict proof of diligence' and care in avoiding loss to the owner,” by reason of any cause within the exception — that “ the onus lies on the carrier to show the injury to be within the exception,- and also that there was no negligence.” I do not think the carrier, in this case, has come up to such rules, for he has shown no more than that the stove was stowed in the hold of the vessel, or, more strictly speaking, that when the vessel arrived there was no deck load. A witness said, that of two hundred stoves brought, within his knowledge, this was the second one found broken. There scarcely could have been the care and diligence exercised towards the other one hundred and ninety-eight. Decree for plaintiff for twenty dollars and twenty-five cents.”
    The defendant appealed, and now moved this Court for a new trial on the grounds :
    1. That the defendant having proved the exception contained in the bill of lading; and, further, that on the arrival of the ship in port, her hatches were down, and no sign of improper stowage of the cargo; it is respectfully submitted that he had shown enough to relieve himself of any general charge or presumption of negligence, and abundant to cast from himself the onus of proving a negative.
    2. That the decree is in other respects contrary to the law and the evidence, as submitted in this case.
    
      Allemong, Northrop, for appellant,
    cited Marsh vs. Horn, 5 B. & C. 322 ; 2 Kent, 587.
    
      Martin, contra.
   The opinion of the Court was delivered by

Whitner, J.

The case of Swindler vs. Hilliard Brooks, 2 Rich. 286, was well considered, and fully sustains the present decision. Whilst in this State we recognize the doctrine, that a carrier may limit, by special contract, his common law liabilities, there is not the slightest disposition further to modify the rules justly applicable to such transactions. Learned Judges, in England and America, have regretted the' recognition of such exceptions. Thé exacting tendencies of certain great carriers of the present day, enjoying facilities that almost exclude competition, admonish us, in the application of these wholesome rules, carefully to guard against any abuses. Notwithstanding their apparent rigor, there is a salutary policy in these common law doctrines, and those who are called to administer the law must see to it that they are not wholly evaded.

It is only necessary to bear in mind that the character of the carrier is not changed : his liability only, to the extent of the exceptions, is diminished. In all things else the very same principles apply. Care and diligence are still elements of the contract, and “strict proof” is properly required before any exemption may be claimed. There is nothing in the contract which, by implication even, can be regarded as making it otherwise. That is a sound rule which 'devolves the onus on him who best knows what the facts are. In cases of loss, proof of delivery devolves at once on the carrier, the onus of exempting himself from liability — and nothing can be. more reasonable— before he can take shelter under an exception, to require proof of his care. In the bill of lading before us, “ rust and breakage” are excepted — words of singular import, and, in one sense, might be supposed to cover any injury, unless the purpose was to make the owner his own insurer; however gross the negligence of the carrier, we are brought back to the same point, that the exception includes such breakage as eare and diligence could not avoid. However, the legal principles of our eases being scarcely challenged, unless in a very general way, the grounds of appeal seem to complain that they have been rather rigorously applied. When- it is insisted that a particular fact being shown, the onus was thereby shifted, this is but another form of asserting that a sufficient excuse was proved.

We are disposed to rest this part of the case on the view taken" of the evidence by the presiding Judge. The motion for a new trial is refused.

O’Neall, Wardlaw, and Withers, JJ., concurred.

Motion refused.  