Portland Fish Co. v. States S. S. Co., 73--1897
| Decision Date | 30 September 1974 |
| Docket Number | No. 73--1897,73--1897 |
| Citation | 510 F.2d 628,1975 A.M.C. 2373 |
| Parties | PORTLAND FISH COMPANY, a corporation, Plaintiff-Appellant, v. STATES STEAMSHIP COMPANY, a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before KOELSCH and KILKENNY, Circuit Judges, and McGOVERN, * District Judge.
Pursuant to its agreement to purchase frozen tuna from a seller in the Philippines, Portland Fish Company, the plaintiff, deposited an irrevocable letter of credit with a Manila bank, authorizing payment to seller of $562.50 per short ton of fish upon presentation of a bill of lading.
Thereafter, seller delivered some fish to States Steamship Company, the defendant (hereafter Carrier), for carriage and received from the latter its bill of lading. Carrier verified by piece count the number of fish received, but, having no facilities for weighing them, accepted seller's weight. This information was reflected in the bill as follows:
"SAID TO BE: SAID TO WEIGH
------------ --------------
IN BULK 30 SHORT TONS CLIPPER YELLOW 60000
FIN TUNA GILLED & Lbs
GUTTED 30 SHORT TONS
SAID TO CONTAIN
519 PIECES
Immediately underneath appeared this endorsement:
"One Lot frozen fish said to contain 519 pieces said to weigh 60,000 lbs., freight charges to be adjusted on basis of properly certified outturn weights when such outturn weights are found to be three (3%) percent or more in excess of or under Bill of Lading weights."
Seller then presented its sight draft with bill of lading and supporting documents to the Manila bank, which paid him for 30 short tons of tuna. However, Carrier, upon reaching its destination, outturned 580 fish, which weighed only 12.825 short tons. 1
Plaintiff commenced this suit in admiralty to recover from Carrier the amount of the difference between the sum paid to Seller against the letter of credit and the value of the cargo outturned. Plaintiff's theory was that Carrier was estopped to impeach the weight shown in its bill of lading. The district court rejected plaintiff's contention and ruled that, since the Carrier had outturned all of the fish received from shipper, plaintiff should take nothing on its claim against Carrier and that Carrier should recover (on its counterclaim) against plaintiff the value of the 61 fish delivered plaintiff by mistake. Plaintiff appeals from the ensuing judgment. We reverse.
Ocean bills of lading in foreign trade are given effect subject to the provisions of the Carriage of Goods by Sea Act (Cogsa), 46 U.S.C. §§ 1300--1315. 2 Carrier's primary contention, upheld by the district court, is that the provision in Section 3, subsection 4, of Cogsa, making a carrier's bill of lading 'prima facie evidence' of the receipt of the goods, connotes a rebuttable presumption merely, and thus precludes estoppel. We disagree.
This circuit, as well as others, has consistently held the doctrine of estoppel applicable in cases arising under Cogsa and its predecessor, the Harter Act. 3 Daido Line v. Thomas P. Gonzalez Corp., 299 F.2d 669, 673 n. 9 (9th Cir. 1962); Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1015 (2d Cir. 1972); 4 Cummins Sales & Service, Inc. v. London & Overseas Insurance Co., 476 F.2d 498, 500, 501 (5th Cir. 1973). A good discussion of the early development of the estoppel doctrine as it pertains to bills of lading is contained in District Judge Woolsey's opinion in The Carso, 43 F.2d 736 (S.D.N.Y.1930).
Cogsa was enacted against the backdrop of the Federal Bill of Lading (Pomerene) Act of 1916, 49 U.S.C. §§ 81--124. Section 22 of the Pomerene Act, 49 U.S.C. § 102, 5 amounts to a codification of the estoppel principle and would be dispositive here, 6 were it not for the inapplicability of the Pomerene Act to bills of lading issued in foreign ports. 7 Nevertheless, the proviso contained in section 3(4) of Cogsa, 46 U.S.C. § 1303(4), expressly prohibits a construction of Cogsa which would limit or repeal the effect of the Pomerene Act, and the legislative history of Cogsa evidences a congressional concern for the continued prevention of such abuses as the Pomerene Act was designed to eliminate. 8 We consider it highly unlikely that Congress intended that carriers be held to different standards of care in the issuance of bills of lading covered by the Act, depending solely on the location of the port of issuance, particularly where one of the primary purposes of Cogsa was the establishment of uniformity in bills of lading and the definition by law of the rights and duties of water carriers in foreign trade. 9
Moreover, it is well recognized that one of Congress' objectives in enacting Cogsa was generally to enhance the currency and negotiability of ocean bills of lading. See, e.g., Daido Line v. Thomas P. Gonzalez Corp., supra, at 673 n. 9; Spanish American Skin Co. v. The Ferngulf, 242 F.2d 551, 553 (2d Cir. 1957); Kupfermann v. United States, 227 F.2d 348, 350 (2d Cir. 1955); George F. Pettinos, Inc. v. American Export Lines, 68 F.Supp. 759, 764 (E.D.Pa.1947), aff'd, 159 F.2d 247 (3d Cir. 1947). 10 As stated in Gilmore & Black, The Law of Admiralty (1957), at 125--126:
(Emphasis in original.)
The continued vitality of the estoppel doctrine clearly serves this significant congressional objective.
It should perhaps be noted that Cogsa expressly provides the means by which carriers, in case of doubt concerning the goods, may protect themselves and avoid liability if they choose to do so. Thus (to reiterate) section 3 contains the provision '(t)hat no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.' Accordingly, under the Pomerene Act or, in the case of inbound bills, under the doctrine of estoppel, such statements as the carrier does make become conclusive as against a holder in due course. 11
Of course we recognize that the party urging estoppel against the carrier must demonstrate that he has relied on the description that appears in the bill, for it is elementary that, absent reliance, there can be no estoppel. Thus the doctrine is not applicable in a suit by a shipper against a carrier, 12 or where reliance on the description by a holder for value is not reasonable, 13 or where the holder does not rely on the description at all. 14 But here plaintiff's reliance is manifest and was fully justified. The bill was 'clean'--the qualification 'said to weigh' did not befoul it. 15
The judgment is reversed, and the cause is remanded with directions to enter judgment for plaintiff.
On rehearing, several ocean carriers have moved for leave to file briefs amicus curiae. However, it appears that the issues sought to be raised in such briefs concern the possible effect of our decision on the ocean transportation of containerized cargoes--those in sealed 'packages' not normally opened and inspected by the carrier at the time he issues a bill of lading. The motions are denied. Since the case before us involves solely a bulk shipment subject to piece count, the questions thus raised will have to wait another day for decision. We intimate no opinion on them. Appellee's petition contains nothing new; the points reiterated have all been covered--in our opinion, correctly--in our earlier opinion.
The petition for rehearing is denied.
KILKENNY, Circuit Judge, would grant the rehearing, recall the opinion and affirm the judgment of the lower court.
* The Honorable Walter T. McGovern, United States District Judge for the District of Western Washington, sitting by designation.
1 The overplus in number apparently resulted from the commingling of other fish with those received from seller.
2 All the provisions of Cogsa that are pertinent to this matter appear in Section 3 (46 U.S.C. § 1303) and read as follows:
'(1) * * *
'(2) * * *
'(3) After receiving the goods into his charge the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things--
'(a) * * *
'(b) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper.
'(c) The apparent order and condition of the goods: Provided, that no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
'(4) Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs (3)(a), (b), and (c), of this section: Provided, That nothing in this chapter shall be construed as repealing or limiting the application of any part of sections 81--124 of Title 49.
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