falls on the libellant to prove negligence on the part of the carrier in order to recover. This principle of law is well settled; the cases have already been cited. The libellant has failed, as I have already concluded, to show any negligence on the part of the carrier.
The libellant, however, points out that the exceptive provision refers to causes of damage. It earnestly contends that mould, rust and stain are effects rather than causes.
In Schnell v. The Vallescura, supra, on which the libellant bases its argument, the Supreme Court said, 293 U.S. 296 at page 304, 55 S. Ct.at page 196, 79 L. Ed. 373:
'It is commonly said that when the carrier succeeds in establishing that the injury is from an excepted cause, the burden is then on the shipper to show that that cause would not have produced the injury but for the carrier's negligence in failing to guard against it. Such we may assume the rule to be, at least to the extent of requiring the shipper to give evidence of negligence where the carrier has sustained the burden of showing that the immediate cause of the loss or injury is an excepted peril. * * *
'Here the stipulation was for exemption from liability for a particular kind of injury, decay. But the decay of a perishable cargo is not a cause; it is an effect. It may be the result of a number of causes, for some of which, such as the inherent defects of the cargo, or, under the contract, sea peril making it impossible to ventilate properly, the carrier is not liable. For others, such as negligent stowage, or failure to care for the cargo properly during the voyage, he is liable. The stipulation thus did not add to the causes of injury from which the carrier could claim immunity. It could not relieve him from liability for want of diligence in the stowage or care of the cargo.'
The libellant interprets this statement as placing the burden, here, on the respondent carrier of establishing the essential cause of the mould, rust and stain, that is, the source of the moisture and when it existed. However, the Supreme Court, in that case, also stated, 293 U.S.at page 306, 55 S. Ct.at page 196, 79 L. Ed. 373:
'It is unnecessary for us to consider whether the effect of the clause is to relieve the carrier from the necessity, in the first instance, of offering evidence of due diligence in caring for a cargo received in good condition, and delivered in a state of decay. * * * For here want of diligence in providing proper ventilation is established and it is found that the failure to ventilate has caused the damage.'
Briefly summarized, Schnell v. The Vallescura does not help the libellant here: it merely decides that the exceptive provision does not relieve the carrier from liability for negligence. In this case, however, the libellant has failed to establish the cause of the excess moisture, or to adduce evidence to support a finding of negligence.
On the question which was not answered in the Vallescura case, the Supreme Court had already declared itself in the case of The Folmina, 1909, 212 U.S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann.Cas. 748. There it was said, 212 U.S.at page 362, 29 S. Ct. 365:
'Of course, where goods are delivered in a damaged condition plainly caused by breakage, rust, or decay, their condition brings them within an exception exempting from that character of loss, as the very fact of the nature of the injury shows the damage to be prima facie within the exception, and hence the burden is upon the shipper to establish that the goods are removed from its operation because of the negligence of the carrier.'
The effect of the exceptive provision is explained in more detail in The Patria, 2 Cir., 1904, 132 F. 971, at page 972:
'It is, no doubt, the rule, as appellant contends, that, when the damage is manifestly of the sort excepted, the ship is under no obligation to show the promoting cause. To illustrate, if the exception is 'damage caused by peril of the sea', and the cargo is landed drenched with salt water, it will be for the ship to show that the salt water found access to the cargo through a peril of the sea; but if the exception is 'damage by breakage', and the article arrives broken, the ship is not required to show how it got broken -- although the libellant may show that negligence of those on the ship, or of those who stowed her or discharged her, caused the break, and, showing that, may recover. If the sole damage to the cargo in the case at bar were manifestly decay, and the language of the exception were, as the respondent states in his brief, 'for decay caused by inherent defect,' the ship would have the burden of showing that the decay was caused by inherent defect. If, however, the sole damage were manifestly decay, and the language of the exception were, as given in the bill of lading, 'not responsible for damage occasioned by decay of any kind,' the appellant would be right in his contention, and, the cause of the decay not being shown to be negligence on the part of the ship, the libel should be dismissed.'
It is noteworthy that both The Folmina and The Patria were cited by the Supreme Court in the Vallescura case.
As against the respondent insurer, the libellant contends: That although it was not able to prove the cause of the moisture in the wood, that it has proved that the cargoes were in good condition when received on board the vessels and that consequently, in the absence of proof that moisture was present at the time of the shipment, it is a necessary conclusion that it got into the wood during the voyages while covered by the insurance; since the insurance covered any possible source of moisture while on the vessels.
However, the rule is well settled that the insured bears the burden of bringing the damage within the risks insured against. Swan v. Union Ins. Co., 3 Wheat. 168, 4 L. Ed. 361. Even assuming that the libellant has proved that the cargoes were in good condition at the time of delivery to the carrier, it bears the burden of bringing the loss within the risks insured against -- damage caused by sweat, fresh water, steam of hold, contact with oil and/or with other cargo. Admittedly, the libellant has failed to establish the cause of the moisture, and therefore, it has failed to carry its burden. The libellant's view that the insurance covered any possible source of moisture during the voyage is not maintainable. The policy does not, for example, cover damage by salt water. Finally, for reasons already stated, I am of the opinion that the libellant has not successfully established that no moisture was present in the wood of the boxes prior to coverage of the shipments by the insurance.
Accordingly, I state the following
Conclusions of Law
1. The Government form bill of lading issued to libellant constituted the contract of carriage.
2. The bill of lading covering libellant's cases of canned beets incorporated the conditions of Calmar Steamship Corporation's usual form bill of lading, including exemptions from liability for damage caused by mould, rust, stain, discoloration and soiling of wrappers.
3. The proof that libellant's damage was caused by mould, rust and staining or soiling of labels, without any evidence of negligence on the part of the carrier, established a complete defense for respondent Calmar Steamship Corporation.
4. Libellant has failed to sustain the burden of proof incumbent upon it of establishing that the loss was due to a peril insured against by respondent, St. Paul Fire & Marine Insurance Company.
5. Respondent, St. Paul Fire & Marine Insurance Company, is not liable under the insurance coverage granted to libellant in this case for loss or damage proximately caused by inherent vice, defect or infirmity of the subject-matter insured.
6. Respondent Calmar Steamship Corporation is entitled to a decree in its favor dismissing the libel against it, with costs.
7. The libel against respondent, St. Paul Fire & Marine Insurance Company, should be dismissed with costs.
Orders may be submitted in accordance with this Opinion.
© 1992-2004 VersusLaw Inc.