preclude the carrier from showing, in case of loss or damage, that the loss proceeded from some cause which existed but was not apparent when he received the goods and which, if shown satisfactorily, will discharge the carrier from liability. But in case of such loss or damage, the presumption of law is, that it was occasioned by the act or default of the carrier and of course the burden of proof is upon him to show that it arose from some cause existing before his receipt of the goods for carriage and for which he is not responsible.'

The Supreme Court of the United States set the seal of its approval to this statement of the law by adopting it verbatim in the opinion of the court delivered by Mr. Justice WAYNE in the case of Nelson v. Woodruff. Here the facts were as follows: Certain lard was shipped on board the "Maid of Orleans" of which Nelson and others were the owners. The bills of lading recited that the goods had been shipped in good order and condition. Cross-libels were filed-the owners claiming freight for the cargo as stated in the bill, the consignees claiming damage for the non-delivery of a large part of the lard. It was contended that the lard had not been in good order when put on board, inasmuch as it was then in a liquid state and had in that condition been put into barrels, which, with the heat of the weather, had started them and had caused leakage during transportation and that the leakage had not been caused by neglect. Testimony was submitted showing the effect of heat and the barreling of lard in a liquid state in producing more than usual leakage. It was held that such proofs were appli cable, although the bills of lading recited that the lard was shipped in good order and condition.

§ 45. The construction given to the clause by Mr. Chief Justice SHAW has been followed and confirmed by other decisions, holding that the words "in good order," refer only to the external or apparent condition of the goods and that such words create no contract with reference to the condition of contents of packages, bales, boxes, etc. External appearance is not a true

1 1 Black, 156. See also The Dela- Ann. Rep. 411; West v. Stm. Berlin, ware, 14 Wallace, 601. 3 Iowa, 532; Currell v. Johnson, 12 La. 290; Moore v. Harris, 2 Quebec L. Rep. 147; The Peter der Grosse, 1

The Prosperino Palasso, 29 L. T. N. S. 622; Gauche v. Storer, 14 La.

test of internal condition1 and the clause of the bill can be applied to the latter only so far as it may be inferred from the former. For example, applied to the shipment of cotton, the phrase means externally in good shipping condition at the time it is received by the carrier but does not refer to or warrant the internal quality or condition of the cotton in the bales.3

§ 46. The reason for the rule is plain. To extend the application of his receipt for goods "in good order," etc., to contents of shipments would be to bind the carrier to a statement made upon information derived solely from the shipper or, to compel the carrier to open every bale, box or package presented for transportation. The former course is unreasonable, the latter unlawful' as well as unreasonable.

"The adoption of the principle that the bill of lading is conclusive on the carrier, not only as to the apparent but also as to the actual condition of the goods, would impose on him the necessity, for self-protection, of opening every box of merchandise to examine and ascertain the condition of its contents before he receives it. . . . . The bulk of every package would have to be broken up and examined, and the contents of every box, of merchandise of the most delicate texture, opened and handled, before a bill of lading could be safely signed. Public policy, therefore, prohibits a rule which would be productive of such results and which, instead of benefiting, would inflict an injury upon the community.”

47. We may now pass to the second proposition, namely, that the statement in the bill, (whether of a railroad company or other carrier) that goods have been received in good order is not conclusive as between the original parties. It may be explained or contradicted by parol evidence. In the case of

McIntosh v. Gastenhofer, Mr. Justice MARTIN says: "The general rule is certainly that when goods are acknowledged to be received in good order and are delivered in bad, the carrier is responsible, but it is open to the exception that he may show that the damage arose from causes which existed anterior to the bailment, or from defect in the thing itself."

48. It is competent to show by evidence aliunde that the goods were not in good order when shipped; to show that they were damaged before the carrier received them,3 whether that damage was done by the shipper or by any previous carrier of the goods; to show that the casks in which liquids were shipped were unsound, or badly made so as to cause leakage; or even to prove that the carrier wished to receipt for the goods as in poor condition, but was not allowed to do so. In a case where the goods were injured in their delivery to the carrier and he saw and knew it, it has been held that the carrier cannot give evidence to contradict his bill of lading receipting for goods in good order unless it be proved that a fraud or imposition was practised upon him. This would not be such a latent defect as would excuse him from liability for loss beyond that which was occasioned by the peculiar nature of the article carried."

49. The third proposition may be more accurately stated thus: though not conclusive, the bill is yet prima facie evidence

Iowa, 214; Barrett v. Rogers, 7 Mass. 297; The Adriatic, 16 Blatchf. C. C. 424; Nelson v. Woodruff, 1 Black, 156; Clark v. Barnwell, 12 Howard, 272; Hastings v. Pepper, 11 Pickering (Mass.), 41; C. & A. R. R. Co. v. Benjamin, 63 Ill. 283; Porter v. C. & N. W. R. R. Co., 20 Iowa, 73; Stm. Missouri v. Webb, 9 Mo. 193; Bradstreet v. Heran, 1 Abbott, 209; Richards v. Doe, 100 Mass. 524; Choate v. Crowninshield, 3 Clifford's C. C. Rep. 184; Ellis v. Willard, 9 N. Y. 529; Wetzler v. Collins, 70 Me. 290.

also, Turner v. Ship Black Warrior, 1 McAllister, 181.

2 Wood v. Perry, 1 Weigh. (Ohio), 240; Kimball v. Brander, 6 La. 711; Ship Howard v. Wissman, 18 Howard, 231.

3 O'Brien v. Cilchrist, 34 Me. 554; Bissell v. Price, 16 Ill. 408.

4 G. W. R. R. Co. v. McDonald, 18 Ill. 172.

Nelson v. Stephenson, 5 Duer (N. Y.), 538.

1 2 Robinson (Louisiana), 403. See See Barrett v. Rogers, 7 Mass. 297.

that so far as the goods were visible, or open to inspection, they were in good order and condition when shipped. The presumption thus raised, throws the burden upon the carrier of showing that the goods were not in the condition stated in his bill of lading. In the case of Bond v. Frost, Mr. Justice SLIDELL says: "If it be admitted that the clause in the bill of lading as to condition of goods when received is open to explanation, still it is certain that the receipt throws the burden of proof upon the vessel and its recital cannot be overthrown or qualified except by evidence of a very clear and convincing character. The recital of the bill of lading is not to be weakened by a conjectural showing."

Again, it has been held that the carrier cannot stop by showing that goods were delivered to him in insufficient packing and that the defect was not discoverable by him. He must go further and show that the injury to the goods actually resulted from such insufficient packing.

§ 50. A bill of lading which contains no admission of the receipt of goods in good order or a promise so to deliver them, but provides that upon delivery of the cargo in sound condition the freight shall be paid, is to be construed as impliedly admitting the receipt of the cargo in good order.

§ 51. The admission as to the condition of the goods has been occasionally qualified by the use of the phrase "in apparent

Choate v. Crowninsheld, 3 Clifford, C. C. 184; I. C. R. Co. v. Cowles, 32 Ill. 116; Tarbox v. Eastern Stm. Co., 50 Me. 339; Breed v. Mitchell, 48 Ga. 533; Montgomery v. Ship Abbey Pratt, 6 La. Ann. Rep. 410; Hart v. Ship Jane Ross, 5 ib. 264; Ship Rappahannock v. Woodruff, 11 ib. 698; Whitney v. Gauche, ib. 432; Austin v. Talk, 20 Texas, 164; Richards v. Doe, 100 Mass. 524; Arend v. Liverpool, etc. Stm. Co., 64 Barbour (N. Y.), 118; Nelson v. Woodruff, 1 Black, 156; Nelson v. Stephenson, 5 Duer (N. Y.), 538; The Adriatic, 16 Blatchf. C. C. 424; M. & W. P. R. R. Co. v. Moore,

51 Ala. 394; Archer v. The Adriatic, 9 Cent. L. Jour. 201; Carson v. Harris, 4 G. Greene, 516; Mitchell v. U. S. Ex. Co., 46 Iowa, 214; West v. The Berlin, 3 ib. 532; The Freedom, L. R. 3 P. C. 594; The Olbers, 3 Ben. 148; Vaughan v. 330 Casks, 7 ib. 506; Price ". Powell, 3 N. Y. 322; C. & A. R. R. Co. v. Benjamin, 63 Ill. 283; Coulthurst v. Sweet, L. R. 1 C. P. 649; The Ship Black Hawk, 9 Benedict (U. S. D. C.), 207; The Pacific, Deady (D. C.), 17.

26 La. Ann. Rep. 801.

3 Zerega v. Poppe, 1 Abbott Bros.,

397.

The Ship Zone, 2 Sprague, 19.

good order," etc. The interpretation given by the Courts to the simple statement in "good order," etc., would seem to render this qualification practically unnecessary and the insertion of the word “apparent" does not change the legal effect of the clause.1

"When a common carrier receives goods for shipment and gives the consignor a bill of lading in which the goods are described to be in apparent good order,' we see no reason why the bill of lading should not be held prima facie evidence that the goods were in good condition."

Where goods are shipped, described as "in apparent good order and condition," and are delivered by the carrier in the same apparent external good order, the burden of proving that the goods are not as delivered, is thrown upon the shipper. In the case of The California the libellants claimed for goods which they alleged were in one of five cases described in the bill of lading "as shipped in apparent good order, value and contents unknown." The goods were not delivered by the carrier, although the case was. It was held that the libellants were bound to show that the goods were in the case when it was delivered to the carrier, and having only given evidence tending to show that they were therein when the case was delivered to the truckman to be taken to the vessel and no other evidence, the libel should be dismissed.3

52. The effect of the phrase was considered under a somewhat unusual state of facts in the case of Evans v. The Atlanta and West Point Railroad Company. This suit was brought for the recovery of damages to certain corn delivered at St. Louis, Mo., under a bill of lading which recited that the corn was "received in apparent good order on board good steamboat Emma C. Elliott to be conveyed from St. Louis to Memphis and from thence by the Memphis & Charleston R. R. with connecting R. R.'s to be delivered in like good order at the company's depot at La Grange, Ga." The corn was de

The Oriflamme, 1 Sawyer, 176. Ill. Cent. R. R. Co. v. Cobb, 72 Ill. 148. See also Blade v. C., St. P. & F. du L. R. Co., 10 Wisconsin, 4.

The California, 2 Sawyer's Reps. (D. C. Oregon), 12.

456 Georgia, 498.