consideration of the sufficiency of the stowage, and is to be determined by the circumstances of each case. It is, however, no defence to the presumption of negligence raised by proof of improper stowage, for the carrier to show that a professional stevedore was employed to stow the cargo; but when by usage or agreement this business is performed by persons employed by the shipper, this fact will avail as a defence to the carrier."

§ 253. The addition of the exception to the bill of lading does not free the carrier from the responsibility for loss through his own fault, but it does shift the burden of proof and make it necessary that the negligence shall be affirmatively shown before he can be held liable.3 Thus, in Czech v. The General Steam Navigation Company, the bill of lading excepted "breakage, leakage, or damage," and the goods were found at the end of the voyage to be injured by oil. It was shown that there was no oil in the cargo, but that there were two donkey engines on deck near the place where the goods were stowed, in lubricating which, oil was used. There was no direct evidence of how the injury occurred. It was held that whether these facts proved that the loss was due to the negligence of the carrier under these circumstances was for the jury. Even where the evidence shows negligent stowage the carrier will not be liable unless it appears that the damage resulted from that fact, while on the other hand the proof of the existence of a defect in the goods themselves relieves the carrier, unless it can be shown that loss might have been avoided by the exercise of reasonable care. In Nelson v. National Steamship Company the bills of lading contained the exception "leakage, breakage, or stowage, however such damage may be caused," and likewise the written memorandum that the casks shipped thereby were loose. The consignees brought suit for loss occasioned by reason of injury to the casks through careless handling, but the court held that while the exceptions in

Sandeman v. Scurr, 2 L. R. Q. B. 98; Rochereau v. Bark "Hausa," 14 La. Ann. Rep. 431.

2 Thomas v. Ship "Morning Glory," 13 La. Ann. Rep. 269.

The Steamship "Pereire," 8 Ben.

301; The Polynesia, 30 Fed. Rep. 210.

4 L. R. 3 C. P. 14.

6 The Delhi, 4 Ben. 345.

The Bark "Olbers," 3 Ben. 148. 77 Ben. 340.

the bill of lading did not discharge the carrier's liability for his own negligence, yet it appearing from the evidence that some of the casks were loose at the time of shipment, the presumption was that this was the cause of the loss.1

In Louisiana it has been said that the proof of proper care in handling and stowing the goods must be made affirmatively by the carrier and the reason given is that "the proof of the character of the stowage is more within the power of the owners of the ship than the shipper." Where leakage is caused by an attempt to abstract oil from the packages the carrier is liable, although the bill of lading exempts him from liability for "breakage and leakage.”

254. The carrier of cattle, where the bill of lading does not expressly provide otherwise, is bound to feed, water and take proper care of the animals intrusted to him, and will be liable for a neglect to perform his duty in this regard. So in a case where hogs had died for the want of water while in the hands of a railroad company, it was properly said that it was as much the duty of the company to provide water at suitable points on the line of the road for the use of the stock as it was to carry the animals. In a Michigan case pigeons were being carried by an express company, there being much delay and the birds not being fed or watered, many of them died before delivery. There being nothing to indicate whether the carrier was acting as a common carrier or bailee for hire, it was left undecided whether an express company, acting in either capacity, "would, in the absence of an express agreement, be impliedly bound to supply them with food and water, so far as essential to their preservation." bill of lading the carrier may be

' In Walford's Summary of the Law of Railways, cited in Angell on Carriers, § 212, note 2, is to be found noted a series of cases in which the defect of the goods has been held not to operate as an excuse for the carrier. Zerega v. Poppe, 1 Abb. Adm. 397, goes some length in that direction. Tardos v. Ship "Toulon," 14 La.

By special stipulation in the relieved in consideration of a

Ann. Rep. 429; Edwards v. Str. "Cohawba," ib. 224.

reduced rate of freight, or other benefits, from the duty of feeding and watering the live stock and that duty be assumed by the shipper. In such case the carrier must, nevertheless, furnish adequate carriage, afford reasonable opportunities to the owner or his agents to care for the stock and subject them to no unnecessary delay in transportation. He will further be liable for the results of his own negligence.1

§ 255. The phrase "Load and unload at his own risk," or its equivalents, puts upon the shipper all risks of damage to the goods in loading them upon or unloading them from the vessel, car, carriage, stage, or other vehicle of transit. Manifestly, however, it has no application to damage to the goods while being transported, nor to personal injuries to the shipper received in loading them. In Stinson v. New York Central R. R. Company, where the shipper was injured by a passing train while engaged in loading his goods, through the negligence and fault of the railroad company and the bill of lading contained the phrase under consideration, judgment was entered against the defendants.

§ 256. Even with the existence of this exception the carrier is obliged to furnish suitable and proper means of transportation. He will not be exempted from the responsibility for negligence in this regard. Where the carrier is exempted in the bill of lading from "all responsibility in loading or unloading or otherwise, whether arising from negligence, misconduct, or otherwise," he is liable for injuries caused by defects in the car. If the shipper did not assent to the use of the car in which his stock was shipped he was entitled, even in such a contract, to expect that they would be suitable for the business.5 Hence, in a case which has twice been before the Supreme Court of Michigan, where, in loading, the bottom of the car

1 South Alabama, etc., R. R. Co. v. Henlein, 52 Ala. 606; Illinois, etc., R. R. Co. v. Adams, 42 Ill. 474. But see Cragin v. R. R. Co., 51 N. Y. 61,

contra.

3 Stinson v. N. Y. Central R. R. Co., 32 N. Y. 333. 4 Supra.

5 Hawkins v. G. W. R. R. Co., 17 Mich., 57; Potter v. Sharp, 24 Hun

2 Indianapolis, etc., R. R. Co. v. (N. Y.), 179; Shaw v. Y. N. M. R. Allen, 31 Ind. 394.

Co., 13 Q. B. 347; 18 L. J. Q. B.

181.

furnished by the railroad company dropped out and the loss was due to this fact, the carrier was held liable.1

§ 257. In an English case, however, where the plaintiff's horses were injured in transit by defective trucks and the plaintiff had signed a "risk note," whereby loading and unloading were to be performed by the sender, and the company to be free from any risk in receiving, loading, forwarding, transit, or unloading, and from liability for suffocation, trampling, bruising, over-carriage, detention, delay; nor damages in relation to conveying or delivering said animals, however caused, nonsuit was entered for the defendants, and this the Queen's Bench refused to take off.2

In Penn v. Buffalo, etc., Railroad Company, there was a special contract for the transportation of cattle at reduced rates, provided the shipper should load and unload at his own risk, the carrier furnishing necessary laborers to assist, under the direction and control of the shipper, who was to examine for himself all the means used. The train was delayed on the way and at a distance from the railroad's cattle-yard, on account of a snow-storm, and the plaintiff requested defendants to provide facilities and laborers for unloading. This they refused to do and the cattle were, in consequence of their long confinement, injured. It was held that the agreement intended that the carrier should furnish the facilities for and perform the labor of unloading, while the plaintiff should direct and control the laborers; that the cattle should have been unloaded during the delay; that it was not incumbent on the plaintiff to unload the cattle himself, upon defendant's default, though by procuring materials, etc., he might have prevented the damage; that the circumstance of a delay at a point where the carriers had no means of unloading, and they could not by reasonable diligence

1 Hawkins v. G. W. R. R. Co., 17 Mich. 57; G. W. R. R. Co. v. Hawkins, 18 ib. 427.

2 Gannell v. Ford, 5 L. T. N. S. 604. In Hood v. Grand Trunk Railway Co., 20 Upper Canada C. P. 361, the bill of lading for certain cattle provided that the shipper should undertake "all risk of loss, injury, damage, and other

obtain access for the train to their cattle-yard for unloading were not contemplated by the contract, and that the defendants were therefore liable.

§ 258. Quite as strict a construction of the phrase is that given in Sisson v. Cleveland, etc., Railroad Company. Here, among the excepted causes of loss, were "all and every risk of injuries which the animals, or either of them, may receive in consequence of any of them being wild, unruly, escaping, maiming or killing themselves, or each other, or from delays, . . . and risk of any loss or damage which may be sustained by reason of any delay, or from any other cause or thing in or incident to, or from and in the loading or unloading of the stock." It was held by the court, Mr. Justice COOLEY giving the opinion, that these expressions refer to loss or damage by reason of delay in loading or unloading only, and have no reference to other losses which the delays of the carrier in transit may cause the ship

pers.

§ 259. The carrier is not responsible for a misdelivery of goods consequent upon their being improperly marked.2 "Goods ought to be plainly and legibly marked, so that the owner or consignee may be easily known and if, in consequence of omitting to do so, without any fault on the part of the carrier, the owner sustains a loss or any inconvenience, he must impute this to his own fault."

Hence, in a Massachusetts case, where no bill of lading was given, and the address of the consignee was not indicated upon the goods, the shipper apparently relying upon the fact that previous goods similarly marked, but accompanied by bills of lading, had been properly delivered, it was held that this evidence would not justify a finding that the defendants' agent "ought to have clearly known" the destination of the goods, and that under the circumstances the defendants were not bound to deliver. When a bill of lading properly describing the consignee has been signed the rule is otherwise. It would seem that the carrier is then bound to see that the goods are properly marked and to deliver them to the proper consignee.