The Adriatic

1 F. Cas. 193, 16 Blatchf. 424, 1879 U.S. App. LEXIS 1686

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: June 23, 1879
• Status: Published

Opinion

WAITE, Circuit Justice.

The receipt in the bill of lading is an admission that the goods were, when received, in apparent good order, but it is not conclusive as to their actual condition. It makes a prima facie case against the ship, and gives the libellants a right to recover, unless this case is overcome by the evidence. The burden of the admission rests upon the ship, until it is shown that the condition and appearance of the goods at the time of their discharge are consistent with the actual existence, in the packages, of the cause of the damage when the shipment was made, without discovery by the ship's agents, acting in good faith,, and with ordinary care, while taking the cargo on board. There is, here, no question of estoppel. The bill of lading has not been assigned, and it does not appear that any advances have been made on the faith of it. The parties and their rights are precisely the same as they were when the receipt was signed. The evidence is, as I think, sufficient to shift the burden of proof from the ship to the libellants. The goods were received while “in transit,” and from another ship. They might have been exposed to sea water while on their way to Liverpool, and still the damage such as not necessarily to attract attention as the transfer was made from ship to ship. It was only about ten days from the time of the shipment in Liverpool to the discharge in New York. When the bales were discharged, there was no appearance of recent exposure. The wrappers were discolored and the yam was damp. No water dripped from any of the packages, and no attempt seems to have been made to ascertain whether any could be brought out by pressure. Certainly, it is to bo presumed that such an attempt would have been made, if the indications were such as to make it reasonable. No other goods were .wet, and there was no appearance of any leak in the ship. There was no water to be seen in the hold where the goods were stowed, and none of the other cargo appears to have been damp, even. Under these circumstances, it seems to me clear, that the libellants, before they can recover, must prove that their yam was actually free from wet or dampness when it went on board. The damaged appearance of the yam when it came out, is a circumstance to be taken into consideration in their favor, but it is not, of itself, sufficient, in my opinion, to overcome the effect of the other facts, which are clearly established by the evidence. The judgment of the district court was right, and a decree may be prepared, dismissing the libel.

[NOTE. In a suit against a common carrier, the libellant makes a prima facie case by producing the receipt of the carrier: “Received in good order.” But these words do not constitute an agreement; they are a mere admission, and may be explained or contradicted by the carrier. The Pacific, Case No. 12,644; The Howard, 59 U. S. (18 How.) 231. In case of loss, the presumption of law is that it was occasioned by the act or default of the carrier; and the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods, and for which he is not responsible. Nelson v. Woodruff, 1 Black, (66 U. S.) 156.]