concurring. I concur in the conclusion of Mr. Justice Buchanan on the second ground assumed by him, but not on the.first, on account of the peculiar circumstances of the case at bar.
I consider that the clause in the bill of lading, “ not accountable for leakage,” does not justify the common carrier in the delivery of empty casks, and put the onus probandi on the consignee ; it does not mean “ not accountable for empty casks.” In my opinion the clause signifies'that the vessel is not liable for ordinary leakage; but it does not mean, that if the casks are broken by unskilful stowage, and the whole of the wine lost, that the ship will not be responsible. The ordinary signification of leakage is the loss of a part, but not of the whole. I admit the common carrier may limit his responsibility, but then it must be in clear and well defined terms ; for this limitation is an exception to the general rule, and a waiver of the provisions of law in favor of the ’ owner of the merchandize shipped.
In one of the cases at bar, some sixteen casks of claret were broken through and entirely empty.
I admit that, for ordinary leakage, the vessel, under the clause, can put the burden of proof on the owner of the goods.
I do not consider the case of Merriman v. Brig May Queen, as applicable to that at bar. The articles shipped in that suit were “ glass counter show cases,” and the restriction in the bill of lading was : “ Goods to be receipted for on the levee; not accountable for rust, breakage, leakage, cooperage ; weights and contents unknown.” It does not appear that these “ show cases ” were smashed; it may be that they were only cracked, and then the clause in the bill would have protected the ship. The decision of Mr. Justice Campbell would perhaps have been different, if it had been established that the “ show cases ” had been entirely crushed by bad stowage.
Mr. Justice Campbell, in his opinion in that case, says : “ The freight clerk who received the cases testifies, that the manufacturer made the freight engagement with him ; that he was informed that articles of the kind contained in the cases (glass counter show cases) would not be received except on the restriction of the liability, and that only the ordinary freight was charged. This evidence is supported by another witness and contradicted by none.”
I do not contest the doctrine in New Jersey Steam Nav. Co. v. Merchants’ Bank, but maintain that decision does not controvert the principle that, a common carrier cannot be released beyond the extent of the limitation in the bill of lading. In the case at bar, the common carrier could have inserted in the bill that he would not be responsible for the delivery of the wine ; then he could not hav<^ been held liable for the delivery of empty casks. But when he binds himself' not to be responsible for leakage, he is bound to deliver the quantity of wine in the casks less that lost by ordinary leakage. The burden of proof would not be upon him for ordinary leakage, under the limitation of' leakage in the bill, but if under *272this restriction, the casks are empty, then the burden of proof, as a general rule, would be upon him.
It is alleged that the loss by leakage was smaller in proportion to the size of the cargo, than is usual in ships from Bordeaux.
I consider that one of the owners cannot be forced to suffer the loss of leakage for the whole cargo. If it had been proved that the leakage on the casks of the' plaintiff was not more than usual, then the ship would not have been liable, but it cannot justify the delivery of empty casks to one of the shippers because his particular loss was not more than the customary leakage of the whole cargo.