The bills of lading issued by the carrier contain the weights and description of goods together with the number of packages and the description of the packages in a column under the broad heading 'Particulars Declared by Shipper.' The respondent contends that this is not such a statement of the weight as to constitute prima facie evidence of it. I think, however, that it is.
The Carriage of Goods by Sea Act provides that a carrier shall issue to the shipper a bill of lading showing among other things the weight or quantity of the merchandise received and that, if it has reasonable grounds to believe the weight furnished by the shipper to be inaccurate, he may issue the bill of lading without showing the weight. The Act further provides that the weight shown on the bill of lading shall be prima facie evidence of the receipt of such weight and if the information furnished by the shipper is inaccurate, then the shipper shall indemnify the carrier against loss. One purpose of the Carriage of Goods by Sea Act was to enable the consignee to rely on the facts stated in the bill of lading. The provisions mentioned give the carrier ample opportunity to protect itself against any obligation to deliver more cargo than it has received. Having accepted the goods, the carrier may not avoid the prima facies of the bill merely by entering weight and quantity as 'Particulars Declared by Shipper'.
The libellant has not proved its claim for shortage. On that issue it had the burden of showing that the cargo was short when it was discharged from the ship, and also the amount by which it was short. When the plumbago came to be weighed by the United States Customs inspector, 19,450 pounds less than the weight given on the bills of lading was found. The only evidence of the date of the weighing is the date of the Customs certificate, which is January 3. According to the log, the ship cleared and left Philadelphia on November 9, seven weeks earlier. However, the date of the certificate may not be (and probably is not) the true date, because the bill from the Philadelphia Pier Co. for rebagging and storage was paid December 12, 1941. The rebagging and weighing, then, would appear to have been completed by December 6, and the weighing may have been soon thereafter, unless the plumbago was weighed in some other place after it had been rebagged and removed from the pier -- a possibility not entirely excluded by the evidence. There is not sufficient evidence to resolve the question of the time of weighing, which may have been anywhere from four to seven weeks after the cargo was discharged.
It appears that the plumbago was dumped upon the pier, where it remained, about two-thirds of it in the form of dust and lumps mixed together, until removed. The testimony shows exactly how it was piled. The intact bags were piled to make a sort of U-shaped parapet and the dust and lump plumbago from the broken bags was simply shovelled into heaps, part between the arms of the U and part outside of it.
From that time on there is absolutely no evidence to show how it was protected, if at all, and there is nothing to show what might or might not have happened to it before it was rebagged and weighed. I can find no testimony to indicate whether the pile was under cover or in the open. Nor is there anything to show who might have had access to it. Obviously, the plumbago was not weighed until it had been rebagged and there is no evidence as to the manner in which the rebagging was done or that some of it was not lost in rebagging. A substantial amount of the dust had worked into the material of the bags and may have been lost with the torn bags. Certainly it was incumbent upon the libellant to establish by evidence that what was weighed was in fact the quantity which was removed from the ship and that the rebagged plumbago represented the entire outturn of the cargo. This it might have done by showing the conditions under which the plumbago remained upon the pier and the precautions, if any, taken to protect it. I do not think that a libellant can recover for a shortage merely by showing that some considerable time after the cargo has been discharged its weight was less than it should have been. To hold otherwise, would put a carrier at the mercy of a consignee who might feel free to leave a cargo where it was discharged until such time as was convenient for him to remove it, and in the meantime to let it remain under any conditions that best suited him, without regard to its preservation. The breaking of the bags, not being due to the fault of the ship, the libellant can not avail itself of that as an excuse for its failure to have the shipment promptly rebagged and weighed.
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