The Dondo
| Decision Date | 03 December 1921 |
| Citation | 287 F. 239 |
| Parties | THE DONDO. |
| Court | U.S. District Court — Southern District of New York |
Henry B. Potter, of New York City, for libelants.
Herbert K. Stockton, of New York City, for claimant.
LEARNED HAND, District Judge (after stating the facts as above).
I think it proved that the damage was caused by sea water. The only alternative is bad dressing, and this could not account for the fact that in each bale examined there were damaged skins which all lay side by side on one side of the bale. Had the damaged skins been badly dressed, they would have been interspersed generally among the rest. As the ship has no exception in the bill of lading on which she may rely, she is liable if the goods were delivered in good order. The Folmina, 212 U.S. 354, 29 Sup.Ct. 363, 53 L.Ed. 545, 15 Ann.Cas. 748.
The skins could not have been damaged by sea water between New York and Gloversville, and the period of their possible injury is by that much limited. The burlap might have been wet and become stained, however, during that time, for the stains were not necessarily due to sea water. However, it is to be remembered that the most badly stained side of the burlap was where the damaged skins lay. This justifies an inference that the stains came from sea water, to which, of course, there may have been added dirt and other causes while wet.
And so the question is whether the libelants have proved that the goods were sound when delivered. Their only proof is the recital in the bill of lading. Now, while this does not especially when coupled with the phrase 'contents unknown,' constitute an admission that the goods are in good internal order, it makes a prima facie case that on the exterior there were no signs of damage. Nelson v Woodruff, 1 Black, 156, 160, 162, 169, 17 L.Ed. 97; Argo S.S. co. v. Seago, 101 F. 999, 42 C.C.A. 128; The Aki Maru, 255 F. 721, 167 C.C.A. 67.
These cases, indeed, go so far as to say that in such cases the burden of proof shifts from the shipper to the ship. I can hardly think that this is meant quite literally. The shipper must show damage while in the carrier's hands, and it is only an excuse, e.g., an exception in the bill of lading that the carrier must allege and prove. Though prima facie the admission of the bill of lading may be enough to show delivery in good order, I do not see how the burden of proof, which in general never shifts, can shift upon the ship to show that the goods were not sound when delivered. The phrase 'burden of proof' is often used somewhat loosely in place of presumption and that I think is what is intended in the cases cited.
However, a presumption might be enough in the case at bar, if the admission in the bill of lading extended to the condition of the skins themselves. As I have said, it does not, for it does no further than what it says, 'in apparent good order and condition,' 'contents unknown,' and that only dispenses with evidence that the bales so far as external appearances went were in good condition. The Solveig (D.C.) 217 F. 805; Clark v. Barnwell, 12 How. 272, 284, 13 L.Ed. 985; Bradstreet v. Heran, 2 Blatchf. 116, Fed. Cas. No. 1792a.
Unless it follows as a reasonable conclusion from that admission that the contents was also in good condition, I do not understand that the shipper has established even a prima facie case. Indeed, were it not so, the ship would be under an unfair disadvantage. There are many cases where the covering of the goods may be in good condition, and in which it does not follow that the contents are so as well. Suppose, for example, that cutlery is taken on board in clean boxes and discharged rusty. There would be no protection for the ship, which probably could not prove the condition upon delivery. While there is indeed language in the books which seems to impose upon the ship the duty of disproving good condition on delivery merely...
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