Opposition Brief — Waterman Steamship Corp. v. U. S. Smelting, Refining & Mining Co.

No. 482 :

apenas 1

"WATERMAN STEAMSHIP CORPORATION,

Ponyienes

werone

“U, 8, SMELTING, REFINING & mana CO.,

BRIEF FOR RESPONDENT IN OPPOSITION TO |

PETITION FOR A WRIT OF: CERTIORARI :

F. Hensert Prem,

Lovis C. Gutpry,

Counsel for Respondent.

Juprciat Paurtie Co., Lro., 82 Busxuay St, N. ¥.—BAsoLay 7-~-8648°9 eq 182

EE OPS e ey ge SL PEE EEE eS

The Gosntien Poeeentets ss si ios SE 3

The Term ‘‘on Deck at Shipper’s Risk’? Does Not

Afford Exoneration Where the Loss Is Due to the

Careter’s PRGOGee: cin oid v0 cise sb ccskd sctmaiee's 5

The Circuit Court of Appeals for the Fifth Circuit

Rightly Held the Petitioner Liable for the Loss of

Respondent's Care: : «ox 4 naikiss vices bese dae camadons 6

A Bill of Lading Provision Susceptible of Being Con-

strued in the Manner Urged by Petitioner Would

be Invalid as an Attempt by the Carrier by Indirec-

tion, to Escape Liability for Its Negligence, Which

Is Forbidden by the Harter Act.................. 13

Gieieiiem.. 6. s Shiki dekh Checked hn eed, ETI 15

TasBLE oF Cases CITED

John Carroll, The, 275 Fed. 302 (C. C. A. 2)......... 3

Compania La Flecha v. Brauer, 168 U. 8S. 104...... 6, 9, 10

Royal Sceptre, 187 Fed. 224 (S. D. N. Y.)........... 6

Pioneer Import Corporation v. The Lafcomo, 138 F.

CBR) SOT COL GO. A, Bhai c cence scccedcascenccnges 6

Clark v. Barnwell, 12 Howard 272................. 7

Transportation Co. v. Downer, 11 Wall. 129........ 7

Edwin I. Morrison, The, 153 U. S. 199.............. 7

Coletenia. The, TT TU. G. SR s ccc ccccenscenccsenns

ee

ae |

Carib Prince, The, 170 U. S. 655..........cccececees

A Gh is wa awa deeckdnieestivese 7, 8,9

Schnell v. The Vallescura, 293 U. S. 296............. 7,8

Commercial Molasses Corp. v. N. Y. Barge Corp., 314

Se ac abiateeaNkKcdakestasedacninnekcs 7, 8,15

Lawrence v. Minturn, 17 Howard.100............ 10, 11, 13

Taibu Maru, The, 1930. A. M. C. 1065 (E. D. N. Y.)

(Not eleewhere reported) ......0cccccccceccccecs 12,13

United States Industrial Alcohol Co. v. Calmar Steam-

ship Corp., 53 F. (2d) 1023 (S. D. N. Y.)........ 13,14

Calderon v. Atlas S. S. Co., 170 U. S. 272............ 15

Lines, et al. v. Atlantic Transport Co., 223 Fed. 624

RE ee reer re ere Seer ee 15

Skipsea, The, 9 F. (2d) 887 (C. C. A. 9)............ 15

Turret Crown, The, 297 Fed. 766 (C. C. A. 2)........ 15

Orner AvutHorities CITED

Carriage of Goods by Sea Act

0 RR re eee Ot re ny ee te Per ee re 3, 4, 7

Section 1(c) (46 U. S. C. See. 1301(c))......... 13

Perot eT errr eet y Tiree ts 3

Harter Act (46 U. S. C., Sees. 190-195).......... 9, 13, 14

Knauth on Ocean Bill of Lading, 1941, pp. 144-146... 15

IN THE

Supreme Court of the United States

Octrosrr Term—1946

No. 482

Wartzeman StzamsuHip Corporation,

Petitioner,

versus

U. S. Smenrine, Rerininc & Minixe Co.,

' Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Statement

Some clarification of the facts seems necessary to a

right understanding of the case.

In March, 1941 a shipment of 1052 tons of structural

steel, consisting of 1469 pieces, was delivered to petitioner,

a common carrier, at Baltimore, for carriage on its vessel,

the ‘‘West Kyska,’’ to Seattle. Petitioner stowed 771 tons

thereof on deck under a bill of lading providing for on deck

stowage and the remainder was stowed under deck. During

the course of the voyage, thirteen large steel plates stowed

on deck, slid overboard.

2

The Master of the ‘‘West Kyska’’ testified that the loss

occurred at a time when two hooks, which secured the chain

lashings of that portion of the steel which was stowed on

the port side of No. 1 hatch, became bent in such fashion

as to release the lashings, resulting in the loose steel at

the top of the pile sliding into the sea (R., p. 187). The

Master testified further that the weather at the time of the

loss was only such as one would expect in that season (R.,

pp. 158-159).

The Master did not testify that his vessel was struck by

‘‘an exceptionally large wave,’’ as is asserted by petitioner

(Petition, p. 5). On the contrary, the Master testified that

respondent’s cargo was lost when the ship gave ‘‘a very

severe roll’’ during a ‘‘heavy westerly swell’’ with a wind

force of 3 on the Beaufort Scale (R., p. 136). He testified

further that at the time of the alleged ‘‘severe roll’’ the

swell was not of sufficient size or force to cause water to

reach the deck (R., p. 161). This is quite understandable

when it is observed that the Beaufort Scale (Ex. 19, R.,

p. 103) characterizes force 3 as a gentle breeze with a wind

velocity of only 8 to 12 miles an hour.

The District Court found that the deck stow, of which

the thirteen plates were a part, was improperly made and

inadequately secured by petitioner; that no peril of the sea,

nor peril incident to on deck stowage was present, the sole

proximate cause of the loss being faulty and insecure stow-

age (R., p. 208).

The District Court denied petitioner’s application for a

rehearing.

The Circuit Court of Appeals affirmed the decree of the

District Court holding that the evidence did not establish

the existence of a ‘‘peril of the sea’’ (R., pp. 236-237) and

that ‘‘the record discloses no evidence on the subject of a

latent defect’’ in the hooks which gave way (R., p. 234).

The Circuit Court of Appeals similarly denied petition-

er’s application for a rehearing.

3

Petitioner’s answer to the libel pleads but two special

defenses in relation to the issue of liability, viz., ‘‘peril of

the sea’’ and ‘‘latent defect’’ (R., p. 45). As the Circuit

Court of Appeals held that neither was established, this is

tantamount to a holding that respondent’s goods were lost

by reason of petitioner’s negligence: obviously, if neither

a sea peril nor latent defect in the metal hooks caused the

lashings to give way, the loss could have resulted only from

negligent stowage.

This is in accord with the long settled rule of the law of

bailments that where chattels are delivered to a bailee in

good condition and are returned in a damaged state, or are

not returned at all, the law presumes negligence to be the

cause, and casts upon the bailee the burden of showing that

the loss is due to other causes consistent with due care on

his part (6 Corpus Juris, p. 1158; The John Carroll, 275

Fed. 302, 306 (C. C. A. 2).

Under this well recognized rule, it is clear that if no

sea peril or latent defect is shown, there is no ground upon

which petitioner can escape liability.

The District Court and Circuit Court of Appeals, hav-

ing found that the evidence failed to establish the existence

of either defense, it is submitted that the concurrent find-

ings of the lower Court should be accepted by this Court.

The Question Presented

At page 2 of the petition, it is stated that the funda-

mental question presented is whether, under the language

of the bill of lading, the rights and liabilities of petitioner,

as a common carrier of goods by sea, are governed by the

provisions of the Carriage of Goods by Sea Act.

At the outset, we invite the Court’s attention to para-

graph VI of petitioner’s amended answer to the libel, filed

on the date of trial (R., p. 46), which pleads the provisions

of the Carriage of Goods by Sea Act and alleges that under

4

Section 4 of the Act it is relieved of responsibility for loss

resulting from perils of the sea and latent defect; and that

as the loss of respondent’s deck cargo had occurred by rea-

son of either of those causes, there is no liability upon peti-

tioner therefor.

Although it sought exoneration from liability under the

Act, petitioner now makes application to this Court for a

writ of certiorari stating that the question presented for

consideration is

‘‘whether, under the covering bill of lading the deck

cargo of the ‘West Kyska’ was being carried sub-

ject to the provisions of the Carriage of Goods by

Sea Act’’ (Pet.’s Br., p. 1).

We shall not comment further upon petitioner’s incon-

sistency in this regard but shall consider the contentions

advanced in the petition.

At pages 4 and 5 of the brief, it is argued:

(1) Should the Carriage of Goods by Sea Act be

held to apply to deck cargo, the burden would then

be upon the carrier to show that the loss was due to

a cause for which no liability attaches under the act;

but that if, however,

(2). the peg of Goods by Sea Act be held

not to apply then the liability of the carrier would be

limited to those cases where the carrier is negligent

in either the stowage or custody of the cargo, in

which case, the burden of proving such negligence

would be on the owner of the goods.

In the present respondent’s brief in the Circuit Court

of Appeals, it was argued—and we advance the same con-

tention in this Court—that it is unnecessary to predicate

petitioner’s liability upon its failure to show that respond-

ent’s loss was due to a cause for which it is granted exemp-

tion under the Act, for the reason that, although under no

legal requirement to do so, the cargo owner had adduced

5

proof clearly establishing that the loss of its cargo was the

direct result of petitioner’s negligent stowage (R., pp. 73-

77, 83-84).

The Trial Court found:

‘*The No. 1 hatch stow * * * was improperly

made and inadequately secured.’’

and that

‘Such faulty and insecure condition of stowage

= oy sole proximate cause of the loss * * *”’ (R.,

p. 208).

If the burden of establishing negligence in stowage was

that of the cargo owner (without regard to whether or not

the ship had first shown the loss to fall within a peril of the

sea, latent defect or other exemption under the Act)—we

respectfully: submit that the petition presents only an aca-

demic question for the consideration of this Court. The

record herein clearly supports the Trial Court’s finding

that the cargo was lost by reason of petitioner’s negligent

stowage.

The Term “on Deck at Shipper’s Risk” Does Not

Afford Exoneration Where the Loss Is Due to the

Carrier’s Negligence

Before discussing the issue presented by petitioner’s

application, we wish to consider briefly the provision ‘‘on

deck at shipper’s risk.’’ We deem such discussion par-

ticularly appropriate because of quotations from three

cases, set out on pages 5 and 6 of petitioner’s brief, which, it

is asserted, hold that there can be no recovery by a cargo

owner for loss of on deck cargo no matter how caused, al-

though the petitioner, at page 7, makes the statement that

that principle was modified by later decisions holding that

a vessel owner cannot escape liability where the loss of the

deck cargo was due to faulty stowage.

Bia:

6

In Compania La Flecha v. Brauer, 168 U. S. 104, this

Court said (pp. 123-124):

‘‘The words ‘on deck at owner’s risk’ cannot

have been intended by the parties to cover risks

from all causes whatsover, including negligent or

wilful acts of the master and crew. To give so broad

an interpretation to words of exception, inserted by

the carrier and for his benefit, would be contrary to

settled rules of construction * * *.’’

In the Royal Sceptre, 187 Fed. 224 (S. D. N. Y.), the

Court said (p. 228):

. “The risk assumed presupposes proper loading

for deck stowage * * *.’’

In Pioneer Import Corporation v. The Lafcomo, 138

F. (2d) 907 (C. C. A. 2), the Court said (p. 908):

‘‘The shipper accepted the risk of losses from

carriage on deck only so far as they occurred under

proper stowage.’’

The Circuit Court of Appeais for the Fifth Circuit

Rightly Held the Petitioner Liable for the Loss

of Respondent’s Cargo

It is the petitioner’s contention that while Section 3 of

the bill of lading incorporates the Carriage of Goods by Sea

Act, there is a qualifying provision that the Act governs

‘‘except as may otherwise be provided’’ therein. The

‘‘other’’ provisions in the bill of lading, which petition

asserts the Circuit Court of Appeals failed to consider, are:

(1) *** ** In respect of Goods carried on deck and stated

herein to be so carried, all risks of loss or damage

by perils incident to such carriage shall be borne

by cargo owner * * *’’ (Sec. 3).

(2) *** * * Goods carried on deck shall be at owner’s

risk’’ (See. 22).

7

(3) “** * * The terms ‘Owner’s Risk’ and ‘O. R.’ mean

that carrier shall not be liable for loss or damage

unless shown to have resulted from some negligence

or default of carrier against liability for which it

is precluded by law from contracting’’ (Sec. 1).

As the loss of respondent’s cargo was clearly not inci-

dent to deck stowage, but was, on the contrary, the result

of petitioner’s negligence, the Circuit Court of Appeals

was, we submit, wholly justified in holding that the terms

of the bill afford the carrier no defense.

Petitioner contends that the Circuit Court of Appeals

erred in ruling that the burden was upon petitioner initially

to establish that the loss fell within one or more of the

exceptions against liability contained in the Carriage of

Goods by Sea Act.

The bill of lading provision on which petitioner relies

seeks to change a fundamental rule relating to the burden

of proof in a cargo damage case. The refusal of the Circuit

Court of Appeals to give effect to the provision finds support

in numerous decisions of this Court, notably

Clark v. Barnwell, 12 Howard 272, 279;

Transportation Co. v. Downer, 11 Wall. 129, 133;

The Edwin I. Morrison, 153 U. S. 199, 212;

The Caledonia, 157 U. S. 124;

The Carib Prince, 170 U. 8. 655;

The Folmina, 212 U. 8. 354, 361;

and more recently in

Schnell v. The Vallescura, 293 U. S. 296, 304;

Commercial Molasses Corp. v. N. Y. Barge Corp.,

314 U. S. 104, 108-110.

The petitioner admitted that the thirteen pieces of struc-

tural steel were received on board its vessel at Baltimore

and it further admitted that the steel was lost at sea (R.,

8

pp. 26, 31, 33). Consequently, under the decision of Clark v.

Barnwell, supra, the burden of proof was on the petitioner

to show that the loss was caused by some excepted peril.

This Court said in The Folmina, 212 U. S. 354, 361:

‘*Tt was long since settled in Clark v. Barnwell,

12 How. 272, that where goods are received in good

order on board of a vessel under a bill of lading

agreeing to deliver them, at the termination of the

voyage, in like good order and condition, and the

goods are damaged on the voyage, in a proceeding to

recover for the breach of the contract of affreight-

ment, after the amount of damage has been estab-

lished, the burden lies upon the carrier to show that

it was occasioned by one of the perils for which he

was not responsible.’’

In Schnell v. The Vallescura, 293 U. S. 296, this Court

said (p. 304):

‘‘The reason for the rule is apparent. He is a

bailee entrusted with the shipper’s goods, with re-

spect to the care and safe delivery of which the law

imposes upon him an extraordinary duty. Discharge

of the duty is peculiarly within his control. All the

facts and circumstances upon which he may rely to

relieve him of that duty are peculiarly within his

knowledge and usually unknown to the shipper. In

consequence, the law casts upon him the burden of

the loss which he cannot explain or, explaining, bring

within the exceptional case in which he is relieved

from liability.’’

Upon this point, in Commercial Molasses Corp. v. New

York Barge Corp., 314 U. S. 104, this Court said (p. 109) :

‘¢For this reason, the shipowner, in order to bring

himself within a permitted exception to the obliga-

tion to carry safely, whether imposed by statute or

because he is a common carrier or because he has

assumed it by contract, must show that the loss was

due to au excepted cause and not to breach of his

duty to furnish a seaworthy vessel. * * * And in

9

that case, since the burden is on the shipowner, he

does not sustain it, and the shipper must prevail if,

apon the whole evidence, it remains doubtful whether

the loss is within the exception.”’

In The Folmima, 212 U. 8. 354, the Court said (p. 363) :

“‘As the burden of showing that the damage arose

from one of the excepted causes was upon the carrier,

and the evidence, although establishing the damage,

left its efficient cause wholly unascertained, it fol-

lows that the doubt * * * must be resolved against

the carrier. The Edwin I. Morrison, 153 U. §. 199,

212,"

This case involves no principle which has not frequently

been decided by this Court. Nor does the decision in any

way depart from the well settled doctrine which has been

established by numerous decisions of this Court, cited above.

The Circuit Court of Appeals held that the petitioner had

failed to sustain the burden of showing that the loss was

due to an excepted cause. There is nothing novel in this

decision.

The decisions of this Court, cited above, deal with

under deck cargo losses which arose both prior and subse-

quent to the passage of the Harter Act (46 U. S. C., Sees.

190-195). The rule as to burden of proof, however, is in

no wise different in an on deck cargo case.

The liability of a carrier for the loss of cargo shipped

on deck at owner’s risk was considered by this Court in

Compania de Navigacion La Flecha v. Brauer, 168 U. §.

104. In that case the vessel owner was held liable for the

loss of cattle jettisoned in rough weather because of an

unfounded apprehension on the master’s part of the ex-

istence of a peril to this ship. It was claimed by the vessel

owner that the storm encountered by the vessel ‘‘was one

of notable severity and the losses of the cattle were due to

the perils incident to the storm” (p. 111). The contention

was rejected by this Court. The loss was held to have re-

10

sulted from the vessel owner’s negligence in the custody of

the cargo and the libellant prevailed, notwithstanding the

bill of lading clause ‘‘on deck at shipper’s risk.’’

This Court stated at page 124:

“The wrongful jettison of the sound cattle by the

act of the carrier’s servants cannot reasonably, or

consistently with the line of English authorities al-

ready cited, or with our own decisions, be considered

either as an ‘accident to, or mortality of the animals,’

or as a ‘loss or damage occasioned by causes beyond

his control, by the perils of the sea, or other waters,’

or yet as a loss or damage ‘by collisions, stranding,

or other accidents of navigation.’ There having been

no collision, stranding, or other accident of naviga-

tion, there was nothing to which the only stipulation

in the bill of lading against the consequences of

negligence, default, or error in judgment of the

master and crew, could apply.’’

The situation in the Brauer case is quite similar to that

in the present case. In the Brauer case there was an ‘‘ab-

sence of any pressing peril to the ship’’ and there was also

‘*no apparent or reasonable necessity for a jettison of the

sound cattle.’’ In short, there was negligence in the care

of the cargo and no sea peril. That is the situation here.

The petitioner has failed to bring the loss within any of

the bill of lading exceptions.

It is submitted that the petitioner’s failure to establish

a sea peril would alone be sufficient to entitle respondent

to a decree but respondent has gone further and shown ac-

tual negligence in the stowage of the cargo.

In 1854 this Court decided Lawrence v. Minturn, 17

Howard 100, which was approximately 43 years prior to the

decision in the Brauer case, supra.

At page 7 of its brief the petitioner quotes from the

Minturn case and asserts that the language of that case

indicates

1l

‘that there could be no recovery by the cargo owner

for loss of or damage to deck cargo no matter how

caused.”’ (Italics ours.)

The petitioner doubtless overlooked the following addi-

tional language of the opinion in that case which has a

material bearing on the rule under discussion (p. 111) :

‘There can be no doubt that a loss by a jettison,

occasioned by a peril of the sea, is a loss by a peril

of the sea. In that case the sea-peril is deemed the

proximate cause of the loss. But if a jettison of a

cargo becomes necessary in consequence of any

fault or breach of contract by the master or owners,

the jettison is attributable to that fault or breach

of contract, and not to sea-peril, though that also

may be present and enter into the case. This dis-

tinction is familiar in the law of insurance. General

Mut. Ins. Co. v. Sherwood, 14 How. 365, and cases

there cited.’’ (Italics ours.)

Under the above rule it is submitted that even had peti-

tioner’s vessel encountered abnormally heavy weather, re-

spondent would prevail if there had been any negligence

in stowage. Respondent herein proved negligence, which

coupled with the petitioner’s failure to establish a sea

peril, makes the application of the rule in the above quota-

tion from the opinion in Lawrence v. Minturn, supra, pe-

culiarly appropriate.

While the libel in Lawrence v. Minturn, supra, was dis-

missed, it clearly appears in the opinion that there was no

want of due negligence in the stowage of the ondeck cargo

(p. 115), and that the ship was subjected to imminent grave

peril (pp. 108-109).

We have shown that Lawrence v. Minturn, supra, al-

though cited by petitioner (Brief, p. 6) as authority in

support of its contention, actually supports respondent’s

position.

12

At pages 7 and 8 of its brief, petitioner quotes from

The Taibu Maru, 1930 A. M. C. 1065, as another authority

supporting its position. Here again it will be found that

the decision supports respondent’s contention and that the

District Court was guided, in its decision, by the principle

applied by this Court in the cases hereinabove cited, as

appears from the following excerpts from the opinion:

‘‘The claimant (carrier) has demonstrated to the

required extent that the loss was occasioned through

the action of waves which came aboard the ship on

February 21, 1927, the effect of which was to cause

the lashings of the deck cargo to be carried away and

the elements thereof to drift, * * *’’ (p. 1067).

* a2 * * * *

‘‘In this case, the proof offered by the claimant

has convinced this Court as to what took place’’

(p. 1067).

* * . +. * *

‘“‘The respondent having established the facts as

to the loss of this portion of the deck cargo, it became

the burden of the libellant to show, by fair preponder-

ance of evidence, that the loss occurred by reason of

the negligence of the claimant’’ (p. 1069). (Italics

supplied.)

Although petitioner herein failed to establish that the

loss of respondent’s cargo was caused by a sea peril—which

state of proof, under the authorities mentioned above, en-

titled respondent to a decree without the necessity of sub-

mitting further evidence—respondent, nevertheless, went

forward and adduced proof conclusively establishing that

the loss of its cargo resulted from ‘‘faulty,’’ ‘‘improper,”’

‘‘insecure’’ and ‘‘inadequate’’ stowage by respondent, as

was found by the Trial Court (R., p. 208, pars. 2, 3).

At page 6 of the petition, it is asserted that under

the decision of the Cireuit Court of Appeals ‘‘the carrier

is deprived of those rights and defenses to which he has

been entitled since the inception of the maritime law of our

es saiatacamemmeamtarest

13

nation,’’ and, on page 7, it is asserted that under this deci-

sion a carrier’s *‘duties and liabilities have been increased

measurably over such duties and liabilities as previously

defined by this Court and other Courts of the United

States.’’

We understand from the somewhat general language

quoted above that petitioner’s position, succinctly stated,

is that the burden of showing negligence in stowage of deck

} cargo must be discharged by a cargo owner prior to a

vessel owner bringing himself within a permitted exception.

We have examined petitioner’s brief in vain for a single

case supporting this contention. We have hereinbefore

considered the only two cases cited by petitioner dealing

| with the issue presented, viz., Lawrence v. Minturn, supra,

and The Taibu Maru, supra, and have shown that they, in

fact, support respondent’s position.

A Bill of Lading Provision Susceptible of Being Con-

strued in the Manner Urged by Petitioner Would

be Invalid as an Attempt by the Carrier, by Indirec-

tion, to Escape Liability for Its Negligence, Which

Is Forbidden by the Harter Act

The Carriage of Goods by Sea Act, incorporated in a

bill of lading by reference, does not apply proprio vigore

to goods carried on deck. Section 1(c) of that Act specifi-

cally excepts such cargo from its application (46 U. S. C.,

Sec. 1301(c)). On the other hand, the Harter Act (46

U.S. C., 190-195) applies to on deck cargo, the only excep-

tion contained in that Act being in respect to the carriage

of live cattle (Sec. 195).

The case of United States Industrial Alcohol Co. v.

Calmar Steamship Corp., 53 F. (2d) 1023 (S. D. N. Y.),

was an action arising under the Harter Act and was

brought to recover for the loss of cargo stowed ‘‘on deck

14

at shipper’s risk’’ on a voyage in 1931. The Court held

that as the carrier’s evidence had failed to establish a sea

peril, it was liable for the loss of libellant’s on deck ship-

ment. At page 1024, Judge Knox said:

‘*In the case now under consideration, the ele-

ment of a sea peril is entirely absent. At no time

was the force of the wind which preceded the loss of

a part of libellant’s cargo in excess of 7 on the Beau-

fort Scale. The resulting seas, while they were suffi-

cient to wash the decks continuously and to cause the

vessel to roll violently, were only such as reasonably

were to be encountered on the voyage. Neverthe-

Iss, the stowage of libellant’s cargo was broken, not

only once but twice, and portions of it washed over-

board. When, however, the drums that remained

were relashed and given adequate support, no more

trouble was experienced. This was so in face of the

facts that the seas continued as heavy, and that the

vessel continued to roll as violently as upon preced-

ing days of the voyage.”’

Indeed, the Harter Act is the sole controlling statute in

this case as the incorporation of the Carriage of Goods by

Sea Act in the bill of lading does not give it the force of

statute but merely makes its provisions additional con-

tractual terms of the bill of lading.

Section 1 of the Harter Act (46 U. S. C., Sec. 190)

makes invalid any provision in a shipping document which

purports to relieve the carrier from liability for negligence

in the

‘‘proper loading, stowage, custody, care, or proper

delivery of any and all lawful merchandise or prop-

erty committed to its * * * charge.’’

It is submitted that to permit the petitioner to be relieved

of the burden of proof approved by this Court for many

years, of showing the loss was due to an excepted cause

before the cargo owner is required to prove negligence,

would allow the petitioner to accomplish by indirection what

the quoted section of the Harter Act has forbidden.

15

Calderon v. Atlas 8. 8. Co., 170 U. S. 272, 282;

Lines et al. v. Atlantic Transport Co., 223 Fed. 624,

625 (C. C. A. 2);

The Skipsea, 9 F. (2d) 887, 889 (C. C. A. 2);

The Turret Crown, 297 Fed. 766, 778, 779 (C. C. A.

2).

The burden of proof in a cargo case governed by the

provisions of the Carriage of Goods by Sea Act being the

same as that under the Harter Act (Knauth on Ocean Bill

of Lading, 1941, pp. 144-146), the Circuit Court of Appeals,

we submit, acted rightly in applying to this case the well

settled rule approved by this Court in a long line of deci-

sions, the most recent of which is Commercial Molasses

Corp. v. N .Y. Barge Corp., supra, an excerpt from which is

quoted at pages 8 and 9 of this brief.

The issue which the petitioner presents to this Court

relates solely to burden of proof. The decision of the

Court below presents no conflict with decisions of this Court

or of other Circuit Courts of Appeals and involves only the

application of well settled principles of law sanctioned

many times by this Court.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

F. Hersert Prem,

Louis C. Gurpry,

Counsel for Respondent.