The opinion of the court was delivered by: BYERS
This is a cargo damage case involving 5,759 wooden cases containing sardines in cans carried on respondent's ship Pero de Alenquer to be called Pero, from Portimao, Portugal, to New York. The date of departure was December 24, 1948, and of arrival, was January 17, 1949.
There was a conceded shortage of two cases, and respondent consents to a decree for libelant in the sum of $ 125 and costs to October 14, 1955.
The question for decision is whether the proof shows that the carrier is to be held liable by reason of the condition of roughly two-thirds of the cases and the tins of sardines therein contained, at discharge.
The bills of lading recited apparent good order and condition; on arrival it was found that approximately 3,871 cases were water-stained, and 1,886 were not stained to any observable degree. The former number were divided into two groups, of which 407 were wet-stained (moist to the touch) and 3,464 were less obviously water-stained, namely to an extent that might be overlooked by a casual observer, as to a portion of them.
When the cases were opened and the contents examined, it was found that a considerable number of the cans were so seriously rusted as to render them unmarketable in that condition.
It was agreed that fresh water caused the damage.
The libelant relies upon the unconditional character of the bills of lading, and urges that the respondent has not met the former's prima facie case. The respondent's contention is that within the purview of Section 4(2) of the Carriage of Goods by Sea Act, Tit. 46 U.S.C.A. 1304, subd. (2), clauses (i) -- act or omission of shipper -- (m) -- inherent defect -- and (q) -- any other cause not fault of carrier, the evidence must result in a decree in its favor, except as previously stated.
The controversy turns upon whether the conditions so discovered on discharge are shown to have resulted from a breach of the carrier's obligations, or to the presence of moisture within the wooden cases when they were laden, although that condition, if then existing, had not caused any discoloration on the cases themselves.
All of the cargo here involved was laden at Portimao, on December 24, 1948, as to which eight clean bills of lading were issued on that day:
No. 5 307 cases
" 6 111 "
" 7 145 "
" 8 98 "
" 22 736 "
" 23 242 "
" 24 254 "
" 25 3,866 "
The cases were not of uniform content as to the number of tins.
The cargo plan does not identify these cases completely, but it shows that 6,036 cases of canned goods were stowed in lower No. 2 and 6,145 in lower No. 3. The manifest indicates that 12,181 cases of canned goods were laden at Portimao and that 5,759 of them were the property of Alianca Exportadora, the libelant's purchasing agent.
Thus it is clear that the cargo in contorversy was laden partly in hold No. 2 forward of 322 drums of ore and beneath bundles of wicker goods and a case of embroidery; and in hold No. 3 forward of 987 bundles of corkwood, and directly beneath cases of wine, which in turn were under about 1,000 cases of canned goods.
Departure was had from Portimao as stated, and the other ports of call in order were: Leixoes (Portugal), Funchal (Madeira) and Ponta Delgada (Azores). The weather was good to Funchal, bad, fair and good to Ponta Delgada; and from the ...