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CLARK V. BARNWELL, 53 U. S. 272 (1851)

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U.S. Supreme Court

Clark v. Barnwell, 53 U.S. 12 How. 272 272 (1851)

Clark v. Barnwell

53 U.S. (12 How.) 272


Where goods are shipped and the usual bill of lading given, "promising to deliver them in good order, the dangers of the seas excepted," and they are found to be damaged, the onus probandi is upon the owners of the vessel to show that the injury was occasioned by one of the excepted causes.

But although the injury may have been occasioned by one of the excepted causes, yet still the owners of the vessel are responsible if the injury might have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods. But the onus probandi then becomes shifted upon the shipper, to show the negligence.

Where spools of cotton thread, put up in boxes, were shipped at Liverpool for Charleston, and the vessel had a voyage of sixty-one days, going far south into a warm climate, and the thread was an article peculiarly subject to the effect of dampness, some of the inside boxes being stained, whilst the outside ones were not, the cargo chanroblesvirtualawlibrary

Page 53 U. S. 273

also being well stowed and dunnaged, the injury must be attributed to the dangers of the seas.

The usage of trade is to bring sacks of salt in the same vessel with dry goods, and the evidence in this case is that if the salt be well stowed, it does not increase the humidity of the vessel, but rather acts the other way.

In this case also there was no evidence that the shipmaster was guilty of any negligence in omitting to provide proper precautionary measures. He was not responsible for the effect of boisterous weather or adverse winds.

The words " contents unknown," being annexed to a bill of lading, imply that the master only meant to acknowledge the shipment in good order of the cases as to their external condition. He might justify himself by showing that the contents were not in good order, but the evidence in this case shows that they were so, and the injury must be attributed to the dangers of the seas.

This was originally a libel, filed in the district court by Barnwell & Ravenel against the ship Susan W. Lind under the following circumstances:

On 4 March, 1848, Richard Shiel & Co. shipped, at Liverpool, in the ship Susan W. Lind, Tristram Clark, master, twenty-four boxes of cotton thread, consigned to Barnwell & Ravenel at Charleston. The bill of lading contained the usual clause, "to be delivered in like good order, all and every, the dangers and accidents of the seas and navigation, of whatsoever nature and kind, excepted," and was signed by Clark, with the remark, "contents unknown."

The vessel sailed from Liverpool on 14 March, and arrived at Charleston on 13 May.

On his arrival, the captain made a protest showing that the voyage had been very boisterous and that the vessel had often shipped large quantities of water.

On 15 May, the captain requested the wardens of the port to make the survey of his vessel, and they continued the inspection during the discharging of the cargo. The following is that part of their report which related to the goods in question:

"On the 29th and 31st, the wardens examined twenty-two cases marked C [B R] + 71 & 92. After they were landed and in store, found many of them stained outside with mud, dry, and in good order; on opening the cases, the wood inside in several of the cases appeared stained; inside of these cases were stowed small boxes; on opening them, the cotton thread contained therein was found musty, mouldy, and damaged, which, in our opinion, has been caused by the great humidity, sweat, and dampness of the hold."

Barnwell & Ravenel also had a survey made by Mood and Smith, who reported as follows:

"That we found the whole of the contents of the said twenty-two

Page 53 U. S. 274

cases to be in a damaged and unmerchantable condition, and we concurred in recommending an early sale thereof at public auction for account of whom it may concern. And we do further certify that if the said cotton sewing thread had been landed in a sound and merchantable state, the same would be worth in this market, at the present time, for cash, forty-five dollars per box, containing one hundred dozen spools, say 22 cases, each containing 6 boxes of 100 dozen."

"132 boxes a $45 per box . . . . $5,940"

"Witness our hands at Charleston aforesaid, the thirty-first day of May in the year 1848."



The goods were sold at auction, and produced only the net sum of $3,335.09, but the duties being abated by $376.02, the loss was claimed to amount to $2,228.89.

On 31 May, 1848, Barnwell & Ravenel filed their libel in the district court of the United States against the ship, her tackle, apparel, and furniture, and against Clark and all persons who should intervene.

On 13 June, 1848, Clark filed a claim for himself, Royal Williams, Ebenezer McLellan, Thomas McLellan, and James R. S. Williams, all of Portland, in Maine, and afterwards an answer was filed denying all the allegations of the libel.

A considerable amount of evidence was heard tending to show the value of the articles shipped, the state in which they were landed, the amount of damage sustained, and the causes to which it could be attributed.

On 24 June, 1848, the district judge dismissed the libel on the ground of there not being introduced at the trial of the cause sufficient evidence to establish the fact of the goods being in good order and condition at the time of their shipment.

The libellants appealed to the circuit court. Additional testimony was taken to show that the goods were shipped in good condition.

On the 8th of May, 1849, the circuit court reversed the decree of the district court,

"conclusive evidence having been given to this Court which was not produced before the said district court as to the shipment of the goods at Liverpool in good order and condition,"

and decreed that the respondents should pay to the libellants the sum of $2,228.89 with costs.

The respondents appealed to this Court. chanroblesvirtualawlibrary

Page 53 U. S. 279

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