287 F. 239 | S.D.N.Y. | 1921
(after stating the facts as above).
The skins could not have been damaged by sea water between New York and Gloversville, and the period of their possible injury is by that much limited. The burlap might have been wet and become stained, however, during that time, for the stains were not necessarily due to sea water. However,- it is to be remembered that the most badly stained side of the burlap was where the damaged skins lay. This justifies an inference that the stains came from sea water, to which, of course, there may have been added dirt and other causes, while wet.
However, a presumption might be enough in the case at har, if the admission in the bill of lading extended to the condition of the skins themselves. As I have said, it does not, for it does no further than what it says, “in apparent good order and condition,” “contents unknown,” and that only dispenses with evidence that the bales so far as external appearances went were in good condition. The Solveig (D. C.) 217 Fed. 805; Clark v. Barnwell, 12 How. 272, 284, 13 L. Ed. 985; Bradstreet v. Heran, 2 Blatchf. 116, Fed. Cas. No. 1792a.
Unless it follows as a reasonable conclusion from that admission that the contents was also in good condition, I do not understand that the shipper has established even a prima facie case. Indeed, were it
Normally, it would perhaps be fair to assume that burlaps, stained and dirty, would not be accepted as in good condition; but I think that' under the proof at bar any such interpretation of the language ''of the bill of lading must be qualified by the practise then common of using secondhand burlap to cover rough cargo. Such burlap might have exactly the stained and dirty appearance of that which covered the skins. If the practice had become prevalent a master would hardly feel called upon to note upon the bill of lading a condition which indicated nothing unusual. “Good condition” means, I take it, that condition in which sound cargo is commonly shipped. Burlap is a rough covering at best, and stains upon it did not mean at that time that it had suffered any damage while used to cover the cargo actually wrapped within it. If torn or ripped, the case would be different. Hence it seems to me that the admission must not be interpreted as meaning that the burlap was not stained when' delivered.
Now, it appears that there were damaged hides in every bale, and that the damaged hides in each bale were laid together on one side of the bale. Consider the damaged hides lying in those bales which were
There is reason enough to suppose that it happened between Barcelona and .Lisbon. That carriage was as likely — if I may guess, more likely — to have been by water than by land. If the bales were laid in single tiers on a wet deck, their bottoms would be wetted; or if in double tiers, open to spray, the bottom of the first and the top of the second tier would be wetted. A short time on lighters would alone have been enough. All these facts the libelants could prove, not the ship, and there is no evidence about it. I need only find that they have failed to carry the burden of showing that the goods were damaged while in the ship’s custody. In fact, it appears to me that the ship has shown the contrary.
Libel dismissed, with costs.