McNeely & Price Co. v. The Exchequer
| Decision Date | 28 September 1951 |
| Docket Number | No. 305 of 1947,305 of 1947 |
| Citation | 100 F. Supp. 343 |
| Parties | McNEELY & PRICE CO. v. THE EXCHEQUER et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Clark, Brown, McCown, Fortenbaugh & Young, Philadelphia, Pa., for libellant.
Krusen, Evans & Shaw, Philadelphia, Pa., for respondents.
This is a suit in admiralty for damage to a cargo of goatskins found, on arrival at Philadelphia on October 23, 1946, to have been injured by having been wet at some time. The skins were in bales covered with burlap and had been loaded at Djibouti on August 24, 1946, on which date three bills of lading acknowledging receipt in good order and condition had been issued.
In cargo damage cases where the goods are found to be damaged on arrival, proof of delivery to the carrier in good condition makes a prima facie case of liability and throws upon the carrier the burden of disproving negligence. Delivery in good condition (or, more accurately, delivery free of the damage complained of) is an essential part of the libellant's case, and the burden of proof is upon him to show it.
With shipments originating in distant ports, firsthand evidence of the condition of the goods, as well as evidence of their packaging, custody and transportation to the ship's side by the shipper, is often, as a practical matter, unobtainable. A receipt or bill of lading acknowledging that the goods were received in good order and condition, or apparent good order and condition, goes part way toward meeting the libellant's burden. However, in the case of packaged goods, it will not of itself be sufficient where the damage is of a kind which could have been present without showing anything wrong on the exterior of the packages when the goods were delivered to the carrier. Apparent good order and condition in the bills of lading furnishes "only prima facie proof of the external condition of the bags", The Niel Maersk, 2 Cir., 91 F.2d 932, 933, and tells "nothing of the inside", The Glasgow Maru, 2 Cir., 102 F.2d 450, 451. In such case further evidence is needed.
The Court, in addition to the good order receipt, "may consider the outturn itself as evidence", The Glasgow Maru, supra, 102 F.2d at page 451. Of course, this means more than just the fact that the goods are damaged. There must be something about the condition of the goods themselves or their stowage or other circumstances from which the Court can infer that the only damage appearing at discharge did not exist at the time the goods came into the possession of the carrier. Of course, if the damage is of a kind which could not in the nature of things have occurred before shipment, that will be enough. Fire damage of unmistakably recent origin and, in most cases, salt water damage would be examples. Expert opinion as to the earliest date when the damage could have occurred, based upon its nature and the extent to which it has progressed, may also be considered. In McNeely & Price Co. v. Ellerman v. Bucknall S.S. Co., Limited (The City of Windsor (a goatskin cargo case) D.C., 100 F.Supp. 339, Judge Kalodner relied strongly for his finding of liability upon expert testimony that the condition of the goods indicated that the damage was not over four months old, which would place its inception after shipment.
Applying the foregoing principles to the case now before the Court, I am of the opinion that the libellant has failed to meet its burden of showing that the goods, when delivered to the ship, were undamaged.
This shipment originated at Addis Ababa and consequently had to be transported some hundreds of miles to the dock. There is no evidence as to when the skins were packed, how long they had been en route or at the dock, or what protection they had prior to...
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British West Indies Produce, Inc. v. S/S ATLANTIC CLIPPER
...7 L.Ed.2d 77 (1961); The Glasgow Maru, 102 F.2d 450 (2d Cir.), modified on other grounds, 103 F.2d 430 (1939); McNeely & Price Co. v. The Exchequer, 100 F.Supp. 343 (E.D.Pa.1951); The Pocone, 91 F.Supp. 961 (E.D.N.Y. 3 46 U.S.C. §§ 190, 191. 4 Caterpillar Overseas, S. A. v. S. S. Expeditor,......
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...but more must be considered than just that part of the shipment outturned damaged and part in good condition. McNeeley & Price Co. v. The Exchequer, D.C.1951, 100 F.Supp. 343. Moreover, quite logically, most courts have used outturn condition as evidence in instances in which a high percent......
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