Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro (Patrimonio Nacional)

CourtNew York City Municipal Court
Writing for the CourtPATRICK PICARIELLO
Citation237 N.Y.S.2d 764,37 Misc.2d 1058
PartiesThe GREAT ATLANTIC & PACIFIC TEA COMPANY, Plaintiff, v. LLOYD BRASILEIRO (PATRIMONIO NACIONAL), Defendant.
Decision Date25 June 1962

Page 764

237 N.Y.S.2d 764
37 Misc.2d 1058
The GREAT ATLANTIC & PACIFIC TEA COMPANY, Plaintiff,
v.
LLOYD BRASILEIRO (PATRIMONIO NACIONAL), Defendant.
Municipal Court of City of New York, Borough of Manhattan,
First District.
June 25, 1962.

Page 765

Hill, Rivkins, Louis & Warburton, New York City, Martin B. Mulroy, New York City, of counsel, for plaintiff.

Purrington & McConnell, New York City, James D. Brown, New York City, of counsel, for defendant.

PATRICK PICARIELLO, Justice.

These six actions having common issues of law and fact and tried as one, were instituted by the [37 Misc.2d 1059] plaintiff to recover damages for losses arising out of and involving breach of contracts of carriage embodied in Bills of Lading of defendant common carrier issued to cover shipments of coffee from Brazilian to North American ports and consigned to the plaintiff.

The rights and liabilities of the parties to this litigation are regulated by and subject to the provisions of the Carriage of Goods by Sea Act (U.S.Code, tit. 46, § 1300 et seq.).

The testimony and proofs offered upon the trial indicate that the bags containing coffee beans were in apparent external good order when received by the defendant at its Brazilian ports for carriage to North

Page 766

American ports. It has been further established to the Court's satisfaction, and the evidence of the condition of the respective cargoes as reflected on the defendant's outturns clearly indicates, that the bags of coffee claimed to be short weight were 'torn and resewn,' 'recoopered' and/or 'slack' and 'stained.' Evidence was also adduced and proffered to establish that the bags used in these shipments were standard and customary 60 kilo bags and were the normal standard Brazilian bags regulated, as far as the weave and weight were concerned, by the Brazilian Government.

The plaintiff having established a prima facie case ('clean' Bills of Lading being prima facie evidence of good order and condition of the various cargoes at the time of delivery to defendant for transportation to plaintiff), the sole issue remaining is whether the defendant has the burden of showing exemption from liability (insufficiency of packing [Exception 'N' of Section 1304(2) of the United States Carriage of Goods by Sea Act of 1936, Title 46 U.S.Code 1300 et seq.]) or whether the plaintiff, as part of its prima facie case, must establish the adequacy of packing to overcome defendant's claim of exemption as a result of its...

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