The opinion of the court was delivered by: KALODNER
This is a proceeding in admiralty to obtain requital for damage to a shipment of paprika which was carried from Alicante, Spain, to Philadelphia, Pa., on the 'S.S. Ciano.'
The Sociedad Metalurgica Duro Felguera, a Spanish corporation, entered its appearance as owner and operator of the 'Ciano' and it is chiefly against that company that the libellant presses his claim. Jacob A. Mauch and Joseph Klemm, individually and co-partners trading as Rice, Unruh & Co., in Philadelphia, are made respondents on the ground of agency, and also are garnishees, having credits of the Spanish company which are stipulated to amount to $ 5600. One Emilio Huart is also named as a respondent. Service was had on Rice, Unruh & Co. as agent for Huart, and also as garnishee, but Rice, Unruh & Co. denied the agency as well as the assertion that it held credits of Huart.
The issues for determination relate to when and how the shipment of paprika was damaged, and to the adequacy of certain proofs of loss. The law does not appear to be in dispute; rather a resolution of the evidence is necessary, and, of course, the application of the law of the facts will determine the outcome of the controversy.
The evidence may be summarized as follows. On a bill of lading of Emilio Huart, the captain of the 'Ciano,' on March 25, 1944, acknowledged the receipt in apparent good order and condition of 500 bags of pure Spanish paprika, to be carried from Alicante, Spain, to Philadelphia. The bill of lading had no bad order notations. When the paprika was discharged at Philadelphia, 235 of the 500 bags were found to have been damaged.
The evidence is clear that at Alicante, the bags of paprika were stowed over dunnage in the tween deck of No. 2 hold, occupying an area extending from the forward bulkhead aft for about three metres, being piled about seven or eight tiers high reaching to the top of the tween deck. Also loaded at Alicante were bags of thyme. At the starboard forward corner of the hold there was a ventilator.
The 'Ciano' sailed from Alicante on March 25, 1944, and on March 27, 1944, arrived at Seville where it remained until April 5, 1944; it arrived next at Cadiz on April 6, 1944, and remained there, according to the log, until April 14, 1944.
It was at Seville that barrels of olives were taken aboard, and at Cadiz, barrels and cases of wine. However, the testimony clearly establishes that at Seville, the cargo of paprika was shifted from the No. 2 tween deck to the No. 2 lower hold. When the vessel left Cadiz, the paprika was in the following position: Just aft of the center of No. 2 hold, below the tween deck and directly beneath the hatch opening except for the edge of the stow; aft of the bags of paprika, and on the sides or wings were bags of thyme, which thus surrounded the paprika on three sides and were between the paprika and the after ventilator; forward of the paprika was a temporary wooden bulkhead running; forward of of this bulkhead were cases of wine and bales of rabbit skins; below the paprika, under dunnage, were barrels of olives; above the paprika were the hatch boards on top of which were, in the tween deck, barrels of wine, barrels of olives and cases of wine; above these cork was stowed.
'Ciano' arrived at Gloucester, New Jersey, on May 4, 1944, where she discharged her cargo of cork; on May 15, 1944, she moved to Pier 24, Philadelphia, a covered pier, and on May 16, 1944, discharged her cargo of paprika.
The log of the 'Ciano' contains incomplete entries with respect to the weather during the trip from Alicante to Sevilee. Both the Captain and the Chief Officer testified that it did not rain at Alicante. They could not recall, however, whether it rained on the trip from Alicante to Cadiz, or whether it rained at Seville or at Cadiz. The weather during the voyage across the Atlantic was usual, there being squalls and rain. At Seville and Cadiz, the hatches were open during the day, and on the voyage from Cadiz to Philadelphia they were open for about ten days. The ventilators were closed with wood when it rained.
The respondents' cargo surveyor, Bryant, was present when the paprika was discharged at Philadelphia. He testified that when he first observed the paprika in the lower hold, before any was removed, he saw only three or four stained bags in the top tier of the stow. As the paprika was discharged he observed that the greater number of stained bags appeared among the lower tiers of the stow. The inference from this fact is that these bags were originally in the top tiers of the stow in the tween deck prior to the shifting to the lower hold which took place at Seville, previously mentioned. Some of the bags were stained and discolored on the flat sides, some on the sides and others on the ends.
Bryant also testified he examined several of the damaged bags and concluded that the stains and discolorations were due to a 'general wetting'; on touching some of the stains he found them to be dry, and concluded that the stains were old and had dried. He found no evidence in the hold of condensation or sweat. The tween deck hatch boards were dry, and the temporary wooden bulkhead forward of the paprika was also dry. However, his notes reveal the statement 'Bales rabbit skins, CEWHH. Some wet wood in evidence.'
On May 18, 1944, the libellant personally examined the paprika at the pier. He found that about half the bags were stained and discolored, and that some stained areas were wet.
The paprika was removed to New York City in bond and placed in a warehouse. Of the 500 bags, 235 were set aside as being stained and discolored. On June 5, 1944, an examination was made by two surveyors, Frank Gunn, for the respondents, and James Naylor, for the libellant. Several facts are clearly established according to their testimony: the paprika was packed in double bags made of burlap, and the burlap was new; the damage was external and evident; it was caused by fresh, as distinguished from salt, water; the paprika immediately beneath the stains was bleached and hardened or caked and this could be felt from the outside of the bags; beneath the caked paprika, in some cases, there was bleached and 'mushy' or damp paprika, caused by excessive moisture and resulting from the wetting which also produced the stains. The testimony further supports the conclusion that the damage was not the result of ship's sweat or condensation in the lower hold.
There could be no doubt that the burlap bags were new, although it was testified that where there were stains and discolorations the characteristic sheen of new burlap was lost and from a distance, on seeing the stained portions of the bags, particularly the ends, one might conclude that the bags had had prior use. In this connection, it should be noted that the Chief Officer of the 'Ciano,' who saw some of the bags of paprika during the loading at Alicante, and the Master, who saw the paprika in the hold, testified by deposition, that the bags appeared to have been used previously. Nevertheless, the Master also saw the paprika after its discharge at Philadelphia, and he testified that the bags then were stained and discolored.
Finally, the time element with respect to the damage was not settled by the surveyors. Naylor testified that it was comparatively recent. Gunn could say, at most, that it probably occurred prior to the stowage in No. 2 lower hold. The evidence further indicated that the time required to dry the wet bags would vary with atmospheric conditions in the hold and with the weather. Without knowing these factors, it was impossible to determine the issue.
The instant case falls within the scope of the Carriage of Goods by Sea Act, 49 Stat. 1207 et seq. (1936), 46 U.S.C.A. § 1300 et seq., even though the bill of lading was issued in Spain, 46 U.S.C.A. § 1312. That act provides that the bill of lading shall show, among other things, the apparent order and condition of the goods, and that the bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described. Sections 3(3)(c) and 3(4), 46 U.S.C.A. §§ 1303(3)(c) and 1303(4). Further, the carrier and the ship are relieved of responsibility for losses arising from certain enumerated causes of damage and from any causes arising without actual fault and privity of the carrier or without the fault of its agents or servants, but the burden of proof is on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage. Section 4(2), 46 U.S.C.A.Section 1304(2).
By introducing in evidence the bill of lading with the recitation of receipt for shipment in good order and condition, the libellant has thus prima facie established such condition. However, respondents correctly point out that such recitation in the bill of lading admits, only, that insofar as inspection of the outside of the cargo could indicate, it was in such condition: it relates to external or apparent order. Albers Bros. Milling Co. v. Hauptman, 9 Cir., 1938, 95 F.2d 286; Niel Maersk, 2 Cir., 1937, 91 F.2d 932; Roberts & Co. v. Calmar S.S. Corp., D.C.E.D. Pa., 1945, 59 F.Supp. 203. Having this in mind, they seek to cast upon the libellant the obligation of showing the actual condition of the cargo at the time of delivery to the 'Ciano'. Niel Maersk, supra; Roberts & Co. v. Calmar S.S. Corp., supra. It is asserted that the stains on the bags do not in themselves show that the contents were in other than apparent good order and condition. Citing the experience of their surveyor, Bryant, who testified that he had seen a whole shipment of bran in stained bags without damage to the contents, and relying on the evidence that the dampness in the paprika was found beneath the dried out caked areas, it is contended that the damage herein was not apparent from outside inspection, that is, it was internal damage; hence, bad order notations on the bill of lading were uncalled for.
This position, in my opinion, is unattainable. The condition of the container, it is true, is not always coincident with the actual condition of the contents. Doubtlessly, an experienced surveyor may be able to recall instances where damaged containers held undamaged goods. So also, the damage to the container may be wholly unconnected with the damage to the contents. Cf. The Carso, 2 Cir., 53 F.2d 374, 1931 A.M.C. 1497, 1500, where boxes of cheese were broken, but the cheese was infected with vermin. Nevertheless, the external condition of the cargo is a silent, but patent, testimonial to its apparent good order and to say otherwise would effectively destroy the value of the required acknowledgment in the bill of lading. If the containers, on external inspection, revealed nothing, the carrier would be safe in its ...