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Osias KUPFERMANN and Tobias Kupfermann, co-partners doing business under the firm name and style of O. Kupfermann & Sons, Libelants-Appellees, v. UNITED STATES of America, Respondent-Appellant; Azad B. KARABAGUI and Azad B. Karabagui Rug Corporation et al., Libelants-Appellees, v. UNITED STATES of America, Respondent-Appellant; S. B. PENICK & COMPANY et al., Libelants-Appellees, v. UNITED STATES of America, Respondent-Appellant; AVAKIAN BROTHERS, Inc., Libelant-Appellee, v. UNITED STATES of America, Respondent-Appellant; BALFOUR GUTHRIE & COMPANY, LIMITED, a Corporation, Libelant-Appellee, v. UNITED STATES of America, Respondent-Appellant

United States Court of Appeals for the Second Circuit1955-11-07No. Nos. 56-60, Dockets 23535-23539
227 F.2d 348

Summary

Holding. The court affirmed the district court's judgment, holding that the carrier was liable for water damage despite the clean bills of lading, as the statutory presumption of good delivery was not rebutted by evidence of invisible water damage on goods that could have been inspected at the loading ports.

Five shippers brought admiralty claims against the United States for cargo damage aboard the S.S. Shickshinny during a March–April 1946 voyage from the Persian Gulf to New York. The cargo included rugs, wool, skins, gum, seeds, and walnuts. The district court found the carrier liable for certain water damage and hook-hole damage while denying recovery for other claimed losses. On appeal, the only disputed issues were whether the carrier bore responsibility for water damage (both fresh and salt) and minor hook-hole damage. The appellate court upheld the district judge's factual findings regarding the source and extent of water damage, finding them reasonable and supported by evidence.

The government argued that water damage should be treated as an inherent or invisible defect that the clean bills of lading could not address, thus shifting the burden back to the shippers. The court rejected this position, holding that the statutory policy underlying the Carriage of Goods by Sea Act—permitting reliance on clean bills of lading—should not be undermined in cases involving goods of the type shipped here, which presented obvious opportunities for inspection at loading ports. The circumstances, including the timing of rainfall, the failure to repair a damaged sounding pipe, and the mixing of wet and dry cargo, all supported liability.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether clean bills of lading shift the burden of proof for water damage to the shipper under the Carriage of Goods by Sea Act
  • Whether water damage constitutes an inherent or invisible defect excusing the carrier from liability
  • Whether the carrier was responsible for damage caused by wet dunnage loaded at the first port affecting cargo loaded at the second port
  • The effect of a carrier's failure to repair damaged cargo-handling equipment

Procedural posture

The district court consolidated five admiralty libels for trial, issued findings against and in favor of various shippers on different damage claims, and the government appealed the water damage and hook-hole damage awards.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

These are five surviving libels in admiralty out of a substantial additional number brought for loss or damage to cargo by various shippers of goods consisting of rugs, wool, sheep and goatskins, gum, seeds, walnuts, etc., from the Persian Gulf to New York on the Government’s S. S. Shickshinny in March and April, 1946. Judge Murphy heard the libels as consolidated for trial and, in a reasoned opinion, D.C.S.D.N.Y., 123 F.Supp. 99, made judicious and discriminating findings against the shippers in certain cases and in their favor in others. The shippers have not appealed, and respondent does not here question liability for various losses involving nondelivery and oil damage. Hence the only questions now remaining are as to recovery allowed for hook-hole damage — a minor item of approximately $1,000, adequately supported in the evidence — and the more substantial claims for water damage, both fresh and salt. Involved here were important and contested issues of fact, such as whether the rain falling at the first port of loading, Khorramshahr, damaged cargo there, whether this affected the cargo taken on some days later at the second port, Basra, whether wet dunnage was taken aboard at the first port and affected ’ the later shipments, the respective portions of the cargo affected, and so on. Judge Murphy made a careful choice among the conflicting versions for reasons which he has set out, in substance refusing recovery for the wet cargo taken on at the first port, but holding the vessel responsible for wet dunnage which affected adversely the cargo received at the second port. His holdings in all these regards seem quite reasonable and supported in the evidence; at any rate, since they are not “clearly erroneous,” we have no occasion to question them here. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6.

The district court also held that, since no exceptions covering these matters were noted in the bills of lading, the prima facie evidence of delivery and apparent good order and condition of the goods provided in the Carriage of Goods by Sea Act, 46 U.S.C. § 1303(3) (e) and (4), had not been rebutted by convincing proof to the contrary. Respondent contends that the water damage was not an apparent defect, but an inherent one or at least invisible on inspection, and that hence a clean bill of lading should not be sufficient to shift the burden of proof to the carrier. See The Niel Maersk, 2 Cir., 91 F.2d 932, certiorari denied 302 U.S. 753, 58 S.Ct. 281, 82 L.Ed. 582; Copco Steel & Engineering Co. v. The Alwaki, D.C.S.D.N.Y., 131 F.Supp. 332. The statutory policy permitting a reliance upon bills of lading is an important one and should not be undermined for the reasons advanced. Here the many bills of lading involved contain a large variety of exceptions relating largely to poor packaging and the like and, in certain instances not here involved, to water damage. The present bills are bereft of any indication of the damage here found when the cargo was outturned in New York. Where the goods themselves contain some basic, inherent, and hidden defect there may well be occasion to require proof of good condition upon delivery, but here with the type of goods involved there seems so obvious an opportunity for inspection that a possible rainfall on the goods five or six days earlier should not be an excuse to the carrier to avoid the normal effect of its bill of lading. See The Ciano, D.C.E.D.Pa., 69 F.Supp. 35. Moreover, the testimony as to the time of the rainstorm, the nature of the damage, including salt as well as fresh water, the various circumstances as to the loading of wet and dry cargo together, the effect of the wet dunnage, and the failure to renew a damaged sounding pipe so as to prevent leakage of water — all justify the holding which Judge Murphy made.

Affirmed.