Rhinetubes, Inc. v. Norddeutscher Lloyd, 13198

• Decision Date: 14 April 1960
• Docket Number: No. 13198,13198
• Citation: 335 S.W.2d 269
• Parties: RHINETUBES, INC., Appellant, v. NORDDEUTSCHER LLOYD et al., Appellees.
• Court: Texas Court of Appeals

Page 269

335 S.W.2d 269

RHINETUBES, INC., Appellant, v. NORDDEUTSCHER LLOYD et al., Appellees.

No. 13198.

Court of Civil Appeals of Texas, Houston.

April 14, 1960.

Rehearing Denied May 5, 1960.

T. G. Schirmeyer, L. G. Kratochvil, Houston, for appellant.

Royston, Rayzor & Cook, George W. Renaudin, Houston, for appellee, Norddeutscher Lloyd.

Fulbright, Crooker, Freeman, Bates & Jaworski, Quentin Bates, Houston, for appellee, Houston Belt & Terminal Railway Co.

WERLEIN, Justice.

Appellant, Rhinetubes, Inc., brought this suit against Norddeutscher Lloyd, hereinafter called ship-carrier, and Houston Belt & Terminal Railway Co., hereinafter called railroad, to recover damages to a shipment of steel casing transported by appellee, ship-carrier, on the S. S. Adolf Vinnen from Antwerp, Belgium, to Houston, Texas and by appellee railroad, from shipside to Long Drive Team Track in Houston. Appellee ship-carrier issued a negotiable bill of lading and acknowledged receipt in apparent good order and condition of 177 pieces of 16" steel casing, at Antwerp, for shipment to Houston, Texas, to the order of appellant as consignee. The shipment was discharged as authorized directly into railway gondola cars switched alongside the Adolf Vinnen. The railroad issued a straight railroad bill of lading to appellant acknowledging that it received the shipment in apparent good order and condition and agreeing to transport it from shipside to Long Drive Team Track. After the railroad cars arrived and were spotted on Long Drive Team Track, appellant inspected the steel casing while it was still in the cars and at that time discovered that 115 joints out of the 177 joints were badly damaged. Thereupon written notice of the damage was given by appellant to both the ship-carrier and the railroad. The parties to the lawsuit stipulated that the damage amounted to $2,050.

The case was tried without a jury. Appellant introduced in evidence its bills of lading and proof of damage to the cargo, and rested. Appellee ship-carrier thereupon moved for judgment as to it, which was granted by the court.

Appellee railroad also moved for judgment, which was denied. The railroad thereupon introduced additional evidence, at the conclusion of which the court entered judgment in its favor.

The sole question presented as between appellant and the ship-carrier on this appeal is whether at the time appellant rested it had made out a prima facie case against ship-carrier.

Appellant, by its first Point, asserts that the trial court rendered judgment in favor of ship-carrier on the ground that appellant had failed to give written notice of cargo damage at the time of discharge of the shipment from the ship into the gondola cars, and that in so doing the court erred.

The obligations and liabilities as between appellant and ship-carrier are controlled by the bill of lading and the United States Carriage of Goods by Sea Act, 46 U.S.C.A. Sec. 1300 et seq. (hereinafter referred to as COGSA), and particularly Sec. 1303(6) thereof which reads:

'(6) Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. If the loss or damage is not apparent, the notice must be given within three days of the delivery.'

In this case appellant failed to give written notice of the damage to the shipment in question to ship-carrier or its agent at the port of discharge before or at the time of the removal of the goods into the custody of the railroad, and indeed did not give the required written notice until approximately six days after the shipment had been delivered by ship-carrier. Appellant did establish through the bill of lading that the shipment was in good condition when it was delivered to ship-carrier at Antwerp. It failed, however, to show that the shipment was in a damaged condition when it was delivered by ship-carrier. The railroad bill of lading indicated that it was in apparent good order at such time. At the time appellant rested, no evidence or proof had been offered by appellant as to the condition of the goods at the time they left the custody of the ship-carrier. Therefore, under COGSA the ship-carrier had established a prima facie defense by appellant's failure to give notice as required.

Appellant contends, however, that it was not given a reasonable opportunity to inspect the goods, and that the first time reasonable facilities were provided appellant to inspect such shipment was on the railroad's team track some days later. Sec. 1303(6) of COGSA also provides:

'In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.'

Appellant contends that the ship-carrier had the burden of proving that it gave reasonable facilities to appellant, and having failed to do so the court erred in sustaining ship-carrier's motion to enter judgment in its favor.

The evidence shows that the S. S. Adolf Vinnen arrived in Houston in the latter part of December, 1954, and the cargo in question was discharged at the dock directly into railway cars on or about December 22, 1954. Appellant was given notice of the arrival of the ship and knew that the cargo was being delivered by ship-carrier into gondolas at shipside. Appellant's district manager, Robert L. Horlander, testified that the first written notice of damage sent by appellant to ship-carrier's Houston agents, Biehl & Company, was his letter dated December 28, 1954.

We find no provision in COGSA which requires an ocean carrier to prove in defense of a claim for cargo damage that it provided reasonable facilities to the receiver of the goods for inspecting and tallying the shipment. There is no pleading and no evidence that appellant could not have had its agent at shipside when the cargo was being unloaded, and at such time made an inspection of the shipment of steel casing when or immediately after it was placed in the gondola cars, and then have given notice as required by COGSA. Upon its failure to do so, the removal of the shipment constituted prima facie evidence of the delivery by ship-carrier of the goods as described in the bill of lading.

We think that this case, insofar as the ship-carrier is concerned, is governed by Miami Structural Iron Corp. v. Cie Nacionale, etc., 5 Cir., 1955, 224 F.2d 566. In that case the libellant, appellant, entirely failed to prove that the goods were discharged from the vessel in damaged condition, and failed to give notice of the damage until six days after discharge of the cargo. The court, in dismissing the libel because of libellant's failure to make out a prima facie case, held that the failure to give notice at or near the time of delivery raised, in law, a presumption of delivery of the goods as described in the bill of lading. In the instant case, as in the Miami case, the presumption stood unrebutted at the time appellant rested its case and the trial court entered judgment for appellee ship-carrier.

Appellant has cited a number of cases which are inapplicable to the present suit. Some of such cases were decided prior to 1936 when COGSA was enacted. The case of Newport Rolling Mill Co. v. Mississippi Valley Barge Line Co., D.C., 50 F.Supp. 623 (1943 A.M.C. 793), deals with a 'through' bill of lading issued by a barge line to a shipper, under the terms of which the barge line agreed to transport certain goods to an ocean port and there transfer the cargo to a steamship for ocean carriage to another port. The point on which the court had to pass was the effect of the failure of the shipper to file a formal claim with the carrier and whether such failure barred suit. It had nothing to do with the evidentiary effect of plaintiff's failure to give notice of damage at the time the cargo left the custody of the carrier under the provisions of COGSA.

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