Monnier v. United States

• Decision Date: 26 May 1925
• Docket Number: No. 3462.,3462.
• Citation: 16 F.2d 812
• Parties: MONNIER v. UNITED STATES.
• Court: U.S. District Court — Eastern District of New York

16 F.2d 812 (1925)

MONNIER v. UNITED STATES.

No. 3462.

District Court, E. D. New York.

May 26, 1925.

Matthew T. Abruzzo, of Brooklyn, N. Y. (Ralph Stout, of New York City, of counsel), for libelant.

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Edgar G. Wandless, William E. Collins, and Edwin H. Mead, all of New York City, of counsel), for the United States.

CAMPBELL, District Judge.

This is a suit to recover for alleged damages to cargo, consisting of 3,963 bags of quebracho extract, shipped from Buenos Aires, on July 12, 1920, on the steamship Lake Ellendale, owned by the respondent, to Boston, Mass., at which port it arrived on September 6, 1920; the voyage having consumed about seven weeks. The libel alleges that the steamship Lake Ellendale made delivery of said cargo "short and seriously injured and damaged."

On receipt of the cargo by the ship, a bill of lading was duly issued by authority of the captain, which recited that the 3,963 bags of quebracho extract were received "in apparent good order and condition," and the said bill of lading also contained a clause which provided among others the following exception: "Heat, * * * effects of climate, * * * change of character, * * * breakage, loss of contents or weight, * * * loss or damage age arising from the nature of the goods, * * * heat of holds." On the trial the libelant limited his claim for damages to 1,953 bags, it being conceded that 2,010 bags were delivered in good order and condition.

While no evidence was taken on the trial as to the amount of damages alleged, it does appear from the evidence that the price of quebracho extract was falling at the time that the libelant rejected the entire shipment of 1,953 bags, which were put in storage and about a year later purchased by libelant at public sale at a greatly reduced price, and even by his own testimony some of it was used by him.

The provision in the bill of lading that the bags of quebracho extract were received "in apparent good order and condition" is only prima facie evidence that, as to all circumstances which were open to inspection and visible, the goods were in good order, and does not preclude the carrier from showing, in case of loss or damage, that the loss proceeded from some cause which existed, but was not apparent, when it received the goods, and which, if shown satisfactorily, will discharge the carrier from liability. Nelson v. Woodruff, 66 U. S. (1 Black) 156, 17 L. Ed. 97; Clark v. Barnwell, 53 U. S. (12 How.) 272, 13 L. Ed. 985; The Dondo (D. C.) 287 F. 239, 1923 A. M. C. 19; The Aki Maru (C. C. A.) 255 F. 721; The Solveig (D. C.) 217 F. 805.

Quebracho extract is obtained in the interior of the Argentine Republic, and is treated to reduce the moisture inherent to the raw material. In the final stage of manufacture, the extract, while in a molten, hot state, is poured into bags, and upon cooling hardens; the bags of necessity sticking to the quebracho. The two objects desired in the finished product, and which determine its value, are an increase in the proportion of tannin and a decrease in the proportion of moisture.

Exposure to the air tends to reduce the danger of the bags sticking together because of moisture, and as the bags, after the manufacturing process is completed, are brought down to seaboard in open, shallow boats, piled in a few layers and exposed to the air, the actual condition of the extract as to moisture cannot be determined, simply because the bags do not then stick together.

The percentage of moisture and of tannin in the finished product of quebracho extract can only be determined by a chemical analysis, and cannot be determined from any examination which officers or men engaged in receiving cargo or loading it on a ship are able to make, no matter how diligent they may be. The percentage of tannin and moisture in quebracho extract at the time it starts from the interior toward seaboard are two of the most important elements in determining whether it is in proper condition for shipment.

That quebracho extract is subject to fusing and the sticking together of bags during the voyage, from the inherent vice of too much moisture, was not only shown by the evidence, but it seems to have been accepted by the trade, because, although, as testified by the witnesses both for libelant and respondent, many cargoes come in with the bags stuck together to a greater or lesser degree, yet diligent search has failed to reveal any case in which it has been sought to recover for damages to quebracho extract shipped in bags.

No evidence was offered in this case on behalf of the libelant that the quebracho extract was in good order and condition at the time of shipment, except the recital of the bill of lading of the receipt "in apparent good order and condition," which, as has been shown, relates only to the external condition, and, as quebracho extract is subject to inherent vice, proof that it was in good order and condition at the time of shipment should have been shown by the libelant. The M. C. Currie (D. C.) 132 F. 125; The Muskegon (D. C.) 10 F.(2d) 817, 1924 A. M. C. 1512; The Lyra (D. C.) 231 F. 250.

The respondent contends that, even if the quebracho extract, when shipped, was in good order and condition and proper for shipment, the damages alleged have not been shown by any competent evidence, and, if shown, the respondent was relieved from liability, as the cause of such damage was one of the other excepted...