Transportation Company v. Downer
ERROR to the Circuit Court of the United States for the Northern District of Illinois.
This case was an action against the Western Transportation Company to recover damages sustained by the plaintiff from the loss of eighty-four bags of coffee belonging to him which the company had undertaken to transport from New York to Chicago. The company was a common carrier, and in the course of the transportation had shipped the coffee on board of the propeller Buffalo, one of its steamers on the lakes. The testimony showed that the steamer was seaworthy, and properly equipped, and was under the command of a competent and experienced master, but on entering the harbor of Chicago in the evening she touched the bottom, and not answering her helm, got aground, and during the night which followed kept pounding, and thus caused the hold to fill with water. The result was, that the coffee on board was so damaged as to be worthless.
The bill of lading given to the plaintiff by the transportation company at New York, exempted the company from liability for losses on goods insured and losses occasioned by the 'dangers of navigation on the lakes and rivers.' The defence made in the case was, that the loss of the coffee came within this last exception.
Upon the trial the plaintiff having shown that the defendant had the coffee for transportation, and that the same was lost, the defendant then showed by competent evidence that the loss was occasioned in the manner above stated, that is, by one of the 'dangers of lake navigation.' The plaintiff then endeavored to prove that this danger and the consequent loss might have been avoided by the exercise of proper care and skill. The defendant moved the court to instruct the jury as follows:'If the jury believe from the evidence that the loss of the coffee in controversy was within one of the exceptions contained in the bill of lading offered in evidence, that is to say, if it was occasioned by perils of navigation of the lakes and rivers, then the burden of showing that this loss might have been avoided by the exercise of proper care and skill is upon the plaintiff; then it is for him to show that the loss was the result of negligence.'
The court refused to give this instruction and the defendant excepted, and at the request of the plaintiff, gave instead, the following, to the giving of which the defendant also excepted, viz.:
'The bill of lading in this case excepts the defendant from liability, when the property is not insured, from perils of navigation. It is incumbent on the defendant to bring itself within the exception, and it is the duty of the defendant to show that it has not been guilty of negligence.'
The plaintiff recovered, and the defendant brought the case here on writ of error.
Messrs. J. N. Jewett and G. B. Hibbard, for the plaintiff in error:
The case of Clark v. Barnwell,  in this court, shows that the doctrine for which we contended below is the true one, and the principle of that case has been recognized and established in numerous other cases. 
Mr. J. T. Mitchell, contra:
The weight of authority is in favor of the instruction complained of.
In Whitesides v. Russell,  a steamboat ran on a rock in the Ohio River and knocked a hole in her bottom, whereby her cargo was damaged. The bill of lading excepted losses by 'dangers of the river,' and the carrier was held to have the onus of proving, not only how the loss occurred, but that he had used due diligence and skill.
So in Hays v. Kennedy,  where Lowrie, C. J., says:
'From the very nature of the relation the burden of the proof of a loss by inevitable accident is thrown upon the carrier. He must prove not only an accident which the law admits as inevitable in its character, but also that he was guilty of no fault in falling into the danger, or in his efforts to extricate himself from it.'
In Graham v. Davis,  the Supreme Court of Ohio decided this precise point. The case was ably argued and elaborately considered both on principle and on authority, and the decision is entitled to great weight. The reason of it is stated by Ranney, J., with clearness.
This rule is established also in other States. 
If the case of Clark v. Barnwell-relied on by the other side for the position that it is sufficient for the carrier to show an accident, which may or may not be a danger of navigation (that is, such a danger as reasonable skill and care could not avoid), to put on the plaintiff the burden of proving negligence-can be considered as deciding so broad a proposition, then it is erroneous in principle and against the great weight of authority. It is supported only by a Nisi Prius opinion of Lord Denman, and the cases in the United States courts, which have followed it as authority, without examining the ground upon which it rested. The principal State courts in which it has been cited have refused to follow so clear a departure from established principles.
But the decision does not in reality go to the extent claimed. In that case, the carrier proved affirmatively that his ship was tight and staunch, well equipped and manned, and that the cargo was well stowed and dunnaged.  He, in fact, proved all the elements of proper skill and care on his part. The case was argued and decided on the evidence, not on the burden of proof. The subject of the burden of proof was not argued at all, and the remarks of the court upon it were not necessary to the result arrived at. The decision was right on the evidence, and it is fairly inferrible from the report, that all that was meant to be laid down as to the burden of proof was, that after the carrier had proved due care and skill (which he had done in that case), the plaintiff was still at liberty to rebut that evidence, and assume the burden of proving negligence. This is unexceptionable doctrine, and the case is authority for so much, but not for anything more.
Mr. Justice FIELD delivered the opinion of the court.
^1 12 Howard, 272, 280.
^2 Hunt v. The Cleveland, Newberry, 221; The Neptune, 6 Blatchford, 193
^3 8 Watts & Sergeant, 44.
^4 41 Pennsylvania State, 378.
^5 4 Ohio State, 362.
^6 Swindler v. Hilliard, 2 Richardson, 268; Baker v. Brinson, 9 Id. 201; Berry v. Cooper, 28 Georgia, 543; Turney v. Wilson, 7 Yerger, 340; Hill v. Sturgeon, 28 Missouri, 327.
^7 See p. 281.