The New York herald., 1869-01-08
COURT or COMMON plEAs-esxsnAL Term.
Important 10 Merchanss-Damage "a Freight
in Transportation.

Important 10 Merchnnts-Damage Ia Freight
in Transportation.
Before Judges DAILY Brady and Barrett.
Benjamin Gleadeu, respondent, us. Carl L. Reck-
nagel, and Others, Appelidnts-This was an appeal
from decision Of the General Term OF the Marine
Court affrming judgment In favor OF the plaintiff
In suit brought by Rowland Aspinwall, the
agents Of the Celia lone Of the London and New York
line of steamersl, In the name Of her captain,
to recover freight for certain nutmegs consigned to
the defendant, against which the after claimed TO
Offset the value OF quantity not delivered. The
testimony showed that the cargo was properly
slowed, that the voyage had been unusually tenn
pestucus, and that on arrival the box containing the
nutmegs had been found to be crushed by the
rolling OF the steamer the contents falling among
the dunnage In the hold, where they were spoiled
by being soaked with oil which had leaked and the
plainti1s recovered below on the ground that the
bill OF lading, which exempted the steamer ''from
an damage rom breakage, rust, mortality, insuf-
fciency OF address or package, damage caused by
heavy weather or pitching or rolling OF the vesse
and contained special clause exempting her "from
any damage arising through insuiclency In strength
OF packages" prevented the carriers common law
liability from attaching.
The appellant contended that the burden lay on
the plantin to show that the damage occurred by
'perils OF the sea;n that damage by pressure" was
not such peril and that to establish 1t 1t must be
afrmatveiy and incontestably shown that the cargo
shifted also that as the nutmegs existed in specie
the carrier was bound TO deliver them, whether
spoiled or not and also that the carrier could not,
Contained in the bill Of lading In question, practi-
cally dvest himself OF all responsibility.
The respondent cOntended In reply that the right
Of the carrier to limit his liability by agreement TO
any extent was settled beyond discussion, and that
exceptions in the bill OF ladng were to be deemed
agreed upon (citing many cases; thar the loss hav
ing arisen from rOling Of the vessel,n cause
specially exempted by the bill OF ading the case OF
the lgenia did not apply, and that the nutmegs hav-
Ing been destroyed the carrier was under no obliga
tion to gather them up and deliver them to the con-
signee whether they existed in specie or not
The Court decided that to make the vessel liable
under this bill OF lading either negligence or bad
stowage must be shown: that the different clauses
in the bill OF ading distinguished this from That
or the Igenla, and that the proof was suifcient
to show that the loss occurred from one OF
the exempted pers and the vessel was conse-
quently not liable that the law only imposed upon
the carrier the duty OF delivering spoiled articles
when they existed in the same packages In which
he received them, and did not Oblige him to gather
up nutmegs fallen from the box in which they were
shipped and valueless.
Judgment affirmed with costs. Charles NJ Da
Costa for appellant; George w. Wngate for respon-
dent.