Dublin Company v. Ryder Truck Lines, Inc.
| Decision Date | 19 November 1969 |
| Docket Number | No. 28088 Summary Calendar.,28088 Summary Calendar. |
| Citation | 417 F.2d 777 |
| Parties | The DUBLIN COMPANY, Plaintiff-Appellant, v. RYDER TRUCK LINES, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Julian R. Benjamin, Cassel & Benjamin, Miami, Fla., for plaintiff-appellant.
Harold L. Ward, Miami, Fla., for defendant-appellee; Fowler, White, Collins, Gillen, Humkey & Trenam, Miami, Fla., of counsel.
Before THORNBERRY, MORGAN and CARSWELL, Circuit Judges.
Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I.
This is an appeal from the District Court denying plaintiff's petition for damages resulting from an alleged deficient interstate transportation of goods. Plaintiff Dublin Company is an air conditioning subcontractor, and during the time in question was engaged in installing air conditioning in a large commercial building in Miami Beach. Dublin purchased a number of fan coil units from International Manufacturing Company in Oklahoma City, Oklahoma, and International, as consignor-shipper, shipped the goods to Dublin in Miami. The initiating carrier was Jones Truck Lines, the defendant Ryder Truck Lines carrier having taken the goods from Jones in Memphis, Tennessee. The bill of lading issued by Jones contained the notation "S L & C" which means "shipper's load and count".
Dublin ordered three hundred five (305) units and only received two hundred ninety-three (293) units of which one was damaged. As a result, Dublin had to order thirteen (13) additional units to complete the job; and, because of the nature of the construction, additional costs resulted to the plaintiff.
The gravamen of this appeal appears to be whether Dublin may meet the burden of proving that 305 units were actually loaded in good condition at the start of the shipment by the introduction of the bill of lading, although the bill of lading has noted thereon "S L & C".
Title 49, U.S.C.A., § 101, states as follows:
"The carrier may also by inserting in the bill of lading the words `Shipper\'s weight, load and count\' or other words of like purport, indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods described in the bill of lading * * *."
Plaintiff Dublin argues that the phrase contained in 49 U.S.C.A. § 101, "if such statement be true," referring to "S L & C", places the burden on the carrier of establishing by competent evidence that the goods were loaded by the shipper. In that...
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