CARRIAGE BY SEA BY SPECIAL CONTRACT. 151 



additional exceptions of the same kind, I should have held 

 that the burden of proof lay upon the shipowner. But the 

 whole peculiarity and difficulty of this case arises on a 

 different clause in the bill of lading, and a clause of exception 

 which appears in an unusual place. The adding of the 

 clause appears to have occurred as an after-thought to the 

 framer. There is one part of the clause which I read 

 thus : — ' Not answerable for breakage.' Xow, what does 

 that mean ? In the first place it is the shipowner who is 

 not to be answerable. He is not to be answerable for 

 breakage. This does not mean that he will not be answer- 

 able for breakinof the sfoods. The word breakas^e is not used 

 here in an active sense, it means the broken condition of the 

 goods. If this be so the clause must mean that the ship- 

 oAvner is not to be responsible for the broken condition of the 

 goods at the port of delivery. This is an exception not of 

 a cause of damage but a stipulation of non-liability for a 

 certain state of the goods. . . . The question is, Does the 

 onus lie upon the owner of the goods to prove neglect, or 

 upon the shipowners to prove that there was no neglect ? 

 Now, in my opinion, the shipowner has not that burden. 

 I think the burden of proof lies upon the pursuers, and my 

 reason is that the liability for negligence is not a liability 

 which rests upon them in their capacity of carriers, for it 

 lies upon every custodier. I think the bill of lading dis- 

 charges them from all liability for breakages in their capacity 

 of carriers, but leaves them under the common law liability 

 of custodiers." («) 



Again, a bill of lading bore that the shipowners should 

 not be responsible " for any of the followmg perils, whether 

 arising from negligence, default, or error in judgment of the 

 pilot, master, mariners, engineers, or persons in the service of 

 the ship or for whose acts the shipowner is liable, or other- 

 wise, namely, risk of craft, &c." An action was raised for 

 damaged wheat, and a special verdict finding, inter alia, 



(a) Moess, <L-e. v. Ldth, d-c, Co., 1867, 5 M. 9S8-991. 



