Stirnimann v. The San Diego

• Decision Date: 21 March 1945
• Docket Number: No. 217.,217.
• Citation: 148 F.2d 141
• Parties: STIRNIMANN v. THE SAN DIEGO et al.
• Court: U.S. Court of Appeals — Second Circuit

148 F.2d 141 (1945)

STIRNIMANN v. THE SAN DIEGO et al.

No. 217.

Circuit Court of Appeals, Second Circuit.

March 21, 1945.

Herbert M. Statt, of New York City (Haight, Griffin, Deming & Gardner and J. Ward O'Neill, all of New York City, on the brief), for respondents-appellants.

Thomas H. Middleton, of New York City (Hill, Rivkins & Middleton, of New York City, on the brief), for libelant-appellee.

Before EVANS, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This libel in admiralty was brought by Franz Stirnimann to recover damages to a giant amusement crane allegedly incurred in the course of its transportation from Le Havre, France, to San Francisco. Stirnimann shipped his crane on the S. S. "San Diego" on November 25, 1938. He received a clean bill of lading issued on behalf of respondents, which acknowledged receipt at Le Havre of "126 colis," or component parts, of the crane, "all in apparent good order and condition." But when respondents discharged the crane at San Francisco, January 4 and 5, 1939, twenty-two of the units comprising the shipment were receipted for as bent, kinked, and dented. After trial below the District Court entered an interlocutory decree in favor of libelant, with the usual reference to settle the damages. 55 F.Supp. 798.

This appeal followed.

There is here no dispute as to the damaged condition of the crane upon arrival at San Francisco. Respondents contend, however, that libelant failed to prove injury during the course of transportation. We cannot agree. Libelant did put the bill of lading in evidence; and the statement therein contained of the apparent good condition of the shipment, while not conclusive, does amount to initial proof of its freedom from open and visible damage prior to transportation. Nelson v. Woodruff, 1 Black 156, 66 U.S. 156, 17 L.Ed. 97; Rich v. Lambert & Bro., 12 How. 347, 53 U.S. 347, 13 L.Ed. 1017; Clark v. Barnwell, 12 How. 272, 53 U.S. 272, 13 L.Ed. 985; The Caterina Gerolimich, D. C. E. D. N. Y., 43 F.2d 248, affirmed 2 Cir., 54 F.2d 1080; The Vallescura, D. C. S. D. N. Y., 43 F.2d 247; Stiles v. Ocean S. S. Co., 2 Cir., 34 F.2d 627. Although there was some dispute whether the damage was discernible by the inexperienced eye, the court below found that it was; and we accept this finding, since the testimony on the point was at best contradictory.

In fact, the clean bill of lading is contradicted merely by the assertions of respondents' witnesses — all respondents' employees — of their impression from inspecting the damage that it must have originated prior to loading of the crane at Le Havre. Juvin, chief officer of the S. S. "San Diego," also testified that he made notes with regard to the parts which he found bent, twisted, and rusty at Le Havre, and that he sent these notes to respondents' agent at San Francisco. These notes were not produced at trial. This meager and uncertain evidence was not sufficient to overcome libelant's case. As the trial court well said, "If those defects were so obvious, I cannot reconcile that fact with the manner of receipt which was given." At any rate the court's determination is not to be held clearly erroneous. The proof as to amount of damage consisted of the lowest bid for the work finally done on the crane, without a showing as to whether or not this was merely for repairing the damage. While this would not justify a final decree in favor of libelant, it does afford ample basis for the interlocutory decree and the reference for computation of the damages.

Respondents further contend that under the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(5), libelant is limited to a recovery of $500. That...