ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; Lurton took no part in the decision of this case.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This was an action to recover the value of two cars of rice destroyed by fire in August, 1908, while being transported over connecting railroads from New Orleans, Louisiana, to Charleston, South Carolina. The rice was shipped upon through bills of lading issued by the initial carrier and was destroyed while in the second carrier's custody at Old Hamburg, South Carolina. The two cars, with others
containing quicklime, were side-tracked in the yard at that place awaiting further movement towards their destination. The yard adjoined the Savannah River, which was then almost out of its banks and steadily rising as a result of extraordinary rains and cloudbursts extending up the river and its tributaries one hundred miles. The waters continued to rise, spread over the yard to a considerable depth, and ultimately reached the quicklime, thereby causing the cars to burn and destroying the rice. The cars had been in the yard about sixteen hours when the fire started. The action was against both carriers, and it was alleged in the petition, which based the right of recovery upon the Carmack Amendment to the Interstate Commerce Act (June 29, 1906, 34 Stat. 584, 595, c. 3591, § 7), that the loss of the rice was caused by the negligence of the second carrier, and that the two carriers were jointly liable. Issue was joined, and, after a trial, the district court of the parish rendered a judgment against the carriers jointly and in solido, which the Supreme Court of the State at first reversed and then, after a rehearing, affirmed. 132 Louisiana, 615; 61 So. Rep. 708. The carriers sued out this writ of error, basing their right so to do upon a claim that by the judgment of affirmance they were denied a right or immunity asserted under a law of the United States.
A motion to dismiss was presented along with the merits, and we think it is well taken.
The bills of lading contained these stipulations:
"This company or other carriers over whose line the property may pass, shall not be held responsible for loss or damage [unless through proved carelessness or negligence of their employes] resulting . . . from heat, cold, fire, flood, storms, mobs or other causes not subject to the carrier's control.
"Neither this company nor any of its connecting carriers shall be liable for any damage to, or destruction of
said property by fire, unless such damage or destruction shall result directly and exclusively from their negligence or that of their employes, and unless such negligence shall be affirmatively established by the owner of said property."
In the Supreme Court of the State the carriers contended that, under the combined operation of the Carmack Amendment as interpreted in Adams Express Co. v. Croninger, 226 U.S. 491, the stipulations in the bills of lading, and the common-law rule applied in Railroad Co. v. Reeves, 10 Wall. 176, and other cases,*fn1 they were entitled to exoneration upon showing that the rice was destroyed by the extraordinary flood, unless it also was shown that the second carrier contributed to the loss by negligently failing to take reasonable precautions to avoid it when the rising waters gave warning of the danger; and it was particularly urged as a part of this contention that the burden was upon the plaintiff to show such negligence, and not upon the carriers to show the absence of it. But the court, although disapproving the latter phase of the contention and thinking the carriers were charged by the law of Louisiana with the burden of showing that there was no negligence, did not rest its judgment upon that ground. On the contrary, it examined the evidence, which comprehensively covered the subject, to ascertain whether, upon the hypothesis that the contention of the carriers was sound, they were liable, ...