(D.C. Civil Action Nos. 70-1699, 70-1744, 70-1880 and 70-2661) Appeal from the United States District Court for the Eastern District of Pennsylvania. Resubmitted under 3rd Cir. Rule 12(6) on November 20, 1972, as a result of Orders of July 19, 1972, July 28 1972 and October 30, 1972.
Biggs, Van Dusen and Aldisert, Circuit Judges. Aldisert, Circuit Judge (dissenting).
VAN DUSEN, Circuit Judge.
Blue Bird Food Products Co. ("Blue Bird") appeals from the district court's entry of judgment for the Baltimore & Ohio Railroad Company ("B & O") with respect to four actions filed by Blue Bird against B & O.*fn1 Blue Bird claimed damages from B & O under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), in connection with four carloads of fresh hams shipped to it from a midwest packing company via the B & O.*fn2 After a non-jury trial extending through three days, the district court entered judgment in favor of B & O, apparently on the ground that Blue Bird had not made out a prima facie case. For the reasons to be stated, we will vacate the judgment and remand the case to the district court for further proceedings consistent with this opinion.
In Missouri Pacific Railroad Company v. Elmore & Stahl, 377 U.S. 134, 12 L. Ed. 2d 194, 84 S. Ct. 1142 (1964), the Court set forth the circumstances in which a carrier may be held liable for damages pursuant to 49 U.S.C. § 20(11):
"Under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability." 377 U.S. at 138. (Emphasis added.)
The disagreement between the parties to the instant appeal revolves around the first requirement for a prima facie case set forth in Elmore & Stahl, supra, that is, whether the hams were in good condition when delivered from the shipper to the initial carrier.
Blue Bird introduced no direct testimony before the district court that the hams involved in these suits were delivered to the carrier in good condition. Instead, Blue Bird proposed to satisfy this requirement by the introduction into evidence of the bill of lading for each of the four ham shipments. The following language appeared in each of the four bills of lading:
"RECEIVED, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading, . . . the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown) . . . ." (Emphasis added.)
The "property" referred to in this language was variously described in the body of each bill of lading as "4 LONG HOOKS 58 RACKS" weighing 40046 pounds,*fn3 "2527 pea Fresh Meats" weighing 36047 pounds,*fn4 "1 LOT GRN MT PK CUTS" weighing 39712 pounds,*fn5 and "loose fresh pork picnics" weighing 39478 pounds.*fn6 None of the bills of lading listed an exception to the "apparent good order" of the hams when delivered to the initial carrier. Three of the four bills of lading indicated that the hams were being shipped pursuant to "Plan 2-1/4"; the fourth did not indicate a routing plan.*fn7
In Tuschman v. Pennsylvania Railroad, 230 F.2d 787 (3d Cir. 1956), this court held that a representation in a bill of lading that goods were received "in apparent good order" establishes a prima facie case of delivery in good order with respect to all aspects of the goods which were open to inspection and visible, but that the carrier may show that the alleged damage was caused in whole or in part by a condition which was not apparent when it received the goods:
"The acknowledgment by the bill of lading of the crane's apparent good order was prima facie evidence that, as to all parts which were open to inspection and visible, the crane was in good order at the point of origin. This did not preclude the railroad from showing that the alleged damage in whole or part proceeded from some cause or causes which existed, but which were not apparent when it received the crane." 230 F.2d at 791.
See also Nelson v. Woodruff, 66 U.S. (1 Black) 156, 160, 162, 17 L. Ed. 97 (1861). This evidentiary rule set forth in Tuschman is consistent with the language contained in the bill of lading, since this language represents only that the goods were received from the shipper in "apparent" good order; any defects in those parts of the goods which were not open to inspection and visible would ...