therefore may be substantially considered as but an exertion by the States of a like power to that which was conferred upon the courts of the United States by the original judiciary act and by Revised Statutes, § 724.

Without referring in detail to the various statutes, which will be found collected as of the year 1896, in vol. 6, Ency. Law and Practice, note 3, pp. 812 et seq., we content ourselves with saying that the laws of Indiana, Iowa, Mississippi, Massachusetts, Missouri, New Hampshire, Texas and Washington aptly portray the subject. As illustrative, we refer specially to the statute of Missouri, which directs that when a party refuses to produce evidence or fails to attend to testify on a proper order, besides being punished as for a contempt, the court may strike out the answer filed on behalf of the defendant, etc. This distinction is also marked in the Indiana and Washington statutes. Although the statute of Mississippi, which authorizes, in the event of a failure to obey a proper order as to the production of evidence, the striking of an answer from the files and the entry of judgment by default does not in terms refer the authority thus given to the legislative power to engender a presumption, the true source of the power was clearly pointed out in the concurring opinion of Whitfield, J. (now Chief Justice of the Supreme Court of Mississippi), in Illinois Central R. Co. v. Sanford, 75 Mississippi, 862, and the distinction was made manifest between the power to create a presumption of fact and the want of authority as a mere punishment for contempt to deny a hearing, as ruled in Hovey v. Elliott. And the difference between the two is also elucidated in the opinion of the Supreme Court of the State of Washington in Lawson v. Black Diamond Mining Co., 44 Washington, 26, which interpreted and enforced a statute of the State of Washington embraced in § 6013 and immediately antecedent sections of Ballinger's Annotated Code and Statutes.

As the power to strike an answer out and enter a default, conferred by § 9 of the act of 1905, which is before us, is clearly referable to the undoubted right of the lawmaking authority VOL. CCXII-23

to create a presumption in respect to the want of foundation of an asserted defense against a defendant who suppresses or fails to produce evidence when legally called upon to give or produce, our opinion is that the contention that the section was repugnant to the Constitution of the United States is without foundation. In so deciding our conclusion is of course based upon the legality and sufficiency of the order to produce made under § 8 of the act, and as our decision on that subject rests upon the extent of the visitorial power which the State had the right to exercise over a corporation subject to its control, our ruling as to the legality of the call under § 8 is confined to the case before us.

Affirmed.

THE CHIEF JUSTICE and Mr. Justice Peckham dissent.

t

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 84. Argued January 21, 22, 1909.-Decided February 23, 1909.

When goods which were received in good order on board a vessel under a bill of lading agreeing to deliver them, at termination of the voyage, in like good order and condition are damaged on the voyage, the burden is on the carrier to show that the damage was occasioned by a peril for which he was not responsible. Clark v. Barnwell, 12 How. 272.

Merely proving that damage to cargo was by sea water does not establish that such damage was caused by peril of the sea within the exception of the bill of lading; in such a case conjecture cannot take the place of proof. The G. R. Booth, 171 U. S. 450. Where a certified question does not propound a distinct issue of law, Docket title, No. 84, Jahn v. Steamship Folmina, Van Eyken, Claim

ant.

212 U.S.

Argument for Jahn et al.

but in effect calls for a decision of the whole case, this court need not, and in this case does not, answer it. Chicago, B. & Q. R. R. v. Williams, 205 U. S. 444.

The question "whether damage to the cargo of an apparently seaworthy ship, through the unexplained admission of sea water, in the absence of any proof of fault on the part of the officers or crew of the ship, is of itself a sea peril within the meaning of an exception in a bill of lading exempting the carrier from the act of God

explosion, heat or fire on board

risk of craft or hulk or transshipment, and all and every the dangers and accidents of the seas, rivers and canals and of navigation of whatever nature and kind" answered in the negative.

The question "whether the ship is relieved from liability in consequence of said exception," not presenting a distinct issue of law, not answered.

THE facts are stated in the opinion.

Mr. Frederick M. Brown for Jahn et al.:

The questions submitted to this court for answer in this cause are favorably controlled by The G. R. Booth, 171 U. S. 450. The only differences between the facts in that case and the facts in the instant case are differences which make the owner of cargo on the Folmina more clearly entitled to redress than the owners of the cargo of the Booth. In the Booth case the carrier fully explained the entrance of the sea water; in the present case the carrier either cannot or will not explain how the sea water entered. In the Booth case the Circuit Court of Appeals certified as a fact that the steamer was actually seaworthy; in the present case it merely certified that there was an appearance of seaworthiness and that competent surveyors could not discover any defect. In the Booth case the facts certified by the Circuit Court of Appeals excluded the hypothesis of negligence on the part of the carrier or his crew; in the present case the Circuit Court of Appeals has only certified that the record contains no evidence showing negligence or fault on the part of the Folmina's crew.

No other point of difference between the two cases has been discovered.

It is just as certain in the case of the Folmina as in the case

Argument for Jahn et al.

212 U.S.

of the Booth that there must have been an efficient agency or cause, permitting the sea water to enter. So long as that efficient cause remains undisclosed, the courts cannot know whether the damage comes within the scope of the sea peril exception or not. As it is the obligation of the carrier, upon fundamental principles, to bring the case within some contractual exception or statutory exemption from liability in order to exonerate himself, it follows that the Folmina must be liable, and the questions certified must be answered in the negative. See also The Thrunscoe (1897), Prob. 301.

Carriers should not escape liability for cargo damage without establishing clearly and satisfactorily the cause of damage and their right to exoneration. See The Mohler, 21 Wall. 230, 233; Propeller Niagara v. Cordes, 21 How. 7, 25; The Caledonia, 157 U. S. 124, 144; Forward v. Pittard (1785), 1 Durnford & East, 27; The Edwin I. Morrison, 153 U. S. 214; The Mascot, 48 Fed. Rep. 119; S. C., 51 Fed. Rep. 605.

Once the carrier is able to show with the requisite degree of clearness that the damage is of an excepted character, the prevailing rule is that he need go no further to establish affirmatively that he was free from negligence in the premises; the shipper in this event having the burden of proving negligence. Clark v. Barnwell, 12 How. 272.

Nevertheless, there is a very respectable body of authority to the effect that even in this case it is contrary to public policy to impose upon the cargo owner a burden of proof which he is, from his inherent position, so ill adapted to bear. Pittsburg &c. R. Co. v. Racer, 5 Ind. App. 209; Tardos v. Toulon, 14 La. Ann. 429; J. Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121; Mitchell v. Carolina Cent. R. Co., 124 N. C. 236; Pennsylvania R. Co. v. Miller, 87 Pa. St. 395; Johnstone v. Richmond &c. R. Co., 39 S. C. 55; Alabama Gt. Southern R. Co. v. Little, 71 Alabama, 611; Central &c. Co. v. Hasselkus, 91 Georgia, 382; Adams Express Co. v. Stettaners, 61 Illinois, 184; Louisville &c. R. Co. v. Thompson, 13 Ky. L. Rep. 973; Mahon v. Steamer Olive Branch, 18 La. Ann. 107; Hinton v. Eastern R.

212 U.S.

Argument for the Folmina.

Co., 72 Minnesota, 337; Southern Express Co. v. Seide, 67 Mississippi, 609; Crow v. Chicago &c. R. Co., 57 Mo. App. 135; Union Express Co. v. Graham, 26 Ohio St. 595; Turney v. Wilson, 7 Yerg. (Tenn.) 339; Brown v. Adams Express Co., 15 W. Va. 812; Kirst v. Milwaukee &c. R. Co., 46 Wisconsin, 489; Texas &c. R. Co. v. Richmond, 94. Texas, 571.

Unexplained sea water damage to cargo is not of itself a sea peril, however seaworthy the vessel may appear. The Reeside, 2 Sumner, 567; S. C., Fed. Cas. No. 11,657; The Warren Adams, 74 Fed. Rep. 413, 415; Ins. Co. v. Easton & M. Transp. Co., 97 Fed. Rep. 653; The Henry B. Hyde, 90 Fed. Rep. 114, 116; The Lennox, 90 Fed. Rep. 308, 309; The Patria, 132 Fed. Rep. 971, 972; The Svend, 1 Fed. Rep. 54; Bearse v. Ropes, 1 Sprague, 331; S. C., Fed. Cas. No. 1192; The Zone, 2 Sprague, 19; S. C., Fed. Cas. No. 18,220; The Queen, 78 Fed. Rep. 155, 165, 168; affirmed 94 Fed. Rep. 180, 196; The Centennial, 7 Fed. Rep. 601; The Lydian Monarch, 23 Fed. Rep. 298; The Compta, 4 Sawyer, 375. To the same effect: The Sloga, 10 Ben. 315; S. C., Fed. Cas. 12,955; The Phoenicia, 90 Fed. Rep. 116, 119; S. C., 99 Fed. Rep. 1005; Ins. Co. v. Easton & M. Transp. Co., 97 Fed. Rep. 653; The Presque Isle, 140 Fed. Rep. 202, 205.

The only inference properly drawn from the facts certified is that sea water entered the Folmina, not owing to any sea peril, but owing to the steamer's latent unseaworthiness, or owing to some undiscovered internal mishap similar to that which occurred in the Booth case owing to some other cause for which the steamer is liable.

(

The carrier having the burden of explanation, the legal inference from failure to explain is that sea water found entrance to the hold of the Folmina owing to some cause for which the carrier is legally liable. Nelson v. Woodruff, 1 Black, 156, 160; The Warren Adams, 74 Fed. Rep. 413, 414.

Mr. J. Parker Kirlin, with whom Mr. John M. Woolsey and Mr. Charles R. Hickox were on the brief, for the Folmina: The questions certified are predicated on the assumption