
    GULDEN et al. v. HIJOS DE JOSE TAYA S. EN C.
    (District Court, E. D. New York.
    July 30, 1917.)
    1. Shipping <@=>141(2)—Liability for Damage to Cargo—Improper Stowage.
    Under Harter Act Peb. 13, 1893, c. 105, § 2, 27 Stat. 445 (Comp. St. 1916, § 8030), a ship cannot relieve itself from liability for damage to cargo caused by improper stowage.
    2. Shipping <@=>132(5)—Liability, for Damage to Cargo—Burden of Proof.
    A carrier will not be held liable for damage to cargo witbin the exceptions of the bill of lading, unless the libelant, affirmatively shows negligence which would preclude the setting up of such exceptions; but it is sufficient if negligence is shown which was likely to cause the damage, and no other cause is shown.
    3. Shipping <@=123—-Liability for Damage to Cargo—Improper Stowage.
    A ship held liable for damage to casks of olives from the breaking and leakage of the casks, on the ground that it was caused by improper stowage.
    <S==>For otter cases.sfie same topic & KE3T-NUMBER in .all Key-Numbered Digests & Indexes
    In Admiralty. Suit by Frank Gulden and others against Hijos de Jose Taya S. en C.
    Decree for libelants.
    Francis Bertram Elgas, of New York City (George H. Gilman, of New York City, of counsel), for libelants.
    Kirlin, Woolsey & Hickox, of New York City (Robert S. Erskine, of New York City, of counsel), for respondent.
   CHATFIELD, District Judge.

Libel has been filed to recover damages for part of a cargo of olives shipped on one of the respondent’s vessels from Spain to New York. On unloading, four hogsheads and two barrels were found to be injured; that is, the staves crushed in, so that the brine had leaked out and the contents had decayed or spoiled. The cargo was transshipped from one vessel to another at Cadiz, Spain, and, while the- respondent owned both vessels, the proof indicates that the damage occurred upon the steamer Asuarco, while on a voyage from Cadiz to New York.

There is testimony that the dunnage was not stowed properly under the ends of the barrels, so as to hold them bung up, and that many of them were found shifted or turned over upon their arrival. The respondent claims that such damage was within the exemption from liability contained in the bill of lading. The bill of lading stated that the goods were received in apparent good order and condition, but that the carrier would not be responsible for the contents of the packages or their value.

The Harter Act applied to this ship (The Chattahooche, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801), but will not relieve the vessel for bad stowage (The Palmas, 108 Fed. 87, 47 C. C. A. 220). Under a bill of lading like that in this case, the carrier, who has received the goods in apparent good order, will not be held responsible, unless the libelant shows affirmatively that the ship was guilty of negligence which would preclude setting up the exceptions of the bill of iading. The San Guglielmo (D. C.) 241 Fed. 969; The Konigin Luise, 185 Fed. 478, 107 C. C. A. 578; The Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748. In the present case the bill of lading included also a provision excepting the vessel from responsibility for leakage, breakage, or any other cause of damage, even through the fault of the stowage.

AVliile but five packages were so damaged that their contents were destroyed, there is testimony that many of the casks had been improperly placed or had rolled over during the voyage through lack of care in the method of stowing and the distribution of the dunnage. In The Konigin Euise, supra, there was no proof of bad stowage, and the case turned upon the possibility of damage by pressure after extensive leaking, where no proof of good condition on delivery to (he vessel was given, to overcome the testimony that the barrels were old and patched.

To always excuse the ship because the loss is fortunately small, and to hold that no carelessness'" is proven, unless some one has seen a deliberate violation of the ordinary rules of loading, is practically to relieve the ship in every instance and to make the exception in the bill of lading a perfect insurance against responsibility. It is much easier for the ship to show the actual conditions, and to throw upon the shipper the presumption that the goods were not delivered in good order, than for the consignee to find out what has occurred during the loading and on shipboard.

In the case at bar the evidence shows such stowage that leakage was likely, and of itself might canse the conditions resulting in damage like that caused by the working of the vessel in The Konigin Euise, supra. But the bad stowage in this case would be the proximate cause. The vessel met rough weather, but this was to be expected, and presents only the question under the Harter Act as above discussed.

Eibelant may have a decree.  