Kirk v. Folsom

The plaintiff alleges that he shipped on the Mary Ellen, owned by defendants, certain goods which have not been delivered to him, and that the defendants owe him. the value of said goods. The defendants allege that they were prevented from delivering the goods by an accident, caused by no neglect or fault on their-part.

*585The goods having been shipped in good order aud lost, it devolved on the defendants to prove that the loss was occasioned by “ accidenta» and uncontrollable events.” C. C. 2754. This, we think, they have done in this case. They proved that the boat was seaworthy, and that she sunk through no fault of the defendants; and several experienced steamboatinen testified that “ it frequently happens that a steamboat will receive a jar, or strike something, not known at (.lie time, and in consi qucnce of which she will spring a butt and cause a leak, which will sink the boat while running, or even while at the landing, without there being any neglect *or carelessness on the part of the officers of the boat.” The evidence satisfies us that the sinking of the Mary Ellen was “ occasioned by accidental and uncontrollable events.” The accidental sinking of a boat is one of the perils of navigation excepted in the bill of lading; but if the sinking might have been avoided by skill and diligence, the carrier is liable. The burden of proof to establish want of skill or diligence in the officers of the boat, is on the plaintiff, who asserts it. 10 An. 413, Price, Frost & Co. v. Ship Uriel, Master and Owners; 12 How. 270, Clark et al. v. Barnwell et al.

The plaintiff has failed to prove any want of skill or fault on the part of defendants.

It is therefore ordered, and adjudged that the judgment of the court a qua be avoided and reversed, and that there be judgment in favor of defendants, rejecting plaintiff’s demand, with costs in both courts.

Rehearing refused.