The opinion of the court was delivered by: DAWSON
This is an action by a consignee of a shipment of skins against the ocean carrier for failure to outturn a shipment of the weight set forth in the bill of lading issued by the carrier. The order bill of lading recited the number of packages received and indicated a weight noted as 'Shipper's Weight'. The bill was also stamped with this legend: 'Steamer not responsible for weight, quality or condition of contents'.
The principal issue in the case is whether the carrier is prima facie liable for failure to deliver to the consignee a shipment of the weight set forth in the bill of lading, even though the weight was described as 'Shipper's Weight' and even though the stamp on the bill of lading stated that the steamer was not responsible for the weight.
By consent, the action was dismissed against the respondents Fearnley & Eger, Barber-West African Line, Inc. and American-West African Line, Inc. The remaining respondents are M/S Ferngulf and the owner of the ship, A/S Glittre.
Libelant, the Spanish-American Skin Company of Gloversville, New York, negotiated by correspondence a contract to buy 500 dozen sheepskins, weighing between 12,000 and 15,000 pounds, from Adeakisanya & Sons of Lagos, Nigeria. Payment for the shipment was to be made by letter of credit negotiated by libelant through Manufacturers Trust Company and payable through the British and French Bank, Lagos, which was agent of Midland Bank, Ltd. of London, England. Payment on the letter of credit was contingent upon the shipper presenting commercial and consular invoices and full sets of 'on board bills of lading' together with a government certified weight list showing that the average weight per skin was from two to two and one half pounds.
On March 28, 1952, the seller delivered a quantity of sheepskins in bundles to the M/S Ferngulf. The shipper was given an on board order bill of lading describing the cargo as follows:
'Received, in apparent good order and condition, from Messrs. Adeakinsanya and Sons * * *
Shipper's Description of Goods: Shipper's Weight
Marks Packages Description Gross Weight
SASCO 60 Bags Genuine Sokoto Gross T18.104.22.168
1/60 Origin Sheepskins Tare -- 2.-
New York 1st Quality Nett 22.214.171.124"
The bill of lading also bore on it a statement, apparently imprinted by a rubber stamp, reading 'Steamer not responsible for weight, quality or condition of contents'.
The evidence indicated that the carrier's employees who issued the bill of lading did so without actually seeing the cargo or seeing it loaded on the ship. The bill of lading showed that freight and other charges had been prepaid and showed that the ocean freight was based upon a shipment of 6.4535 tons. The shipper took the bill of lading, his invoice and a consular invoice, and a government weight certificate to its bank and received payment against the letter of credit of 2880 for which libelant's account was charged $ 8,092.80.
When the ship arrived at New York, this cargo was discharged and transported by freight to Gloversville, New York, where it was discovered that the cargo consisted of sixty loosely tied bundles of sheepskins weighing only 2,305 pounds. This would amount to somewhat over one ton rather than the six tons plus which was supposed to have been shipped. It was conceded that the shipment as delivered at Gloversville, New York, was the amount outturned by the ship on its arrival in New York.
The consignee made claim against the vendor, apparently without success. There is some indication in the testimony that the government weight certificate delivered by the vendor to the bank may have been a forgery. The consignee has now brought this action against the carrier basing its claim on the bill of lading and the provisions of the United States Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315.
Respondent takes the position that the bill of lading acknowledged only the receipt of sixty packages of sheepskins and that it outturned sixty packages of sheepskins, and that it is not responsible if the weight of these packages was less than the amount described in the bill of lading since that weight was therein described as 'Shipper's Weight' and the bill of lading indicated on its face that the steamer was not responsible for the weight.
The Carriage of Goods by Sea Act, which was enacted in 1936, provides, in ...