The opinion of the court was delivered by: LEIBELL
This is an action for damages for breach of a contract for the carriage of goods by sea, evidenced by two bills of lading. The contract was made subject to the provisions of the Carriage of Goods by Sea Act [T. 46 U.S.C.A. § 1300 et seq.]. The action was commenced in the City Court of the City of New York by the service of a summons and complaint on October 5, 1954. It was removed to this Court on petition of the defendant on October 15, 1954. The plaintiff served an amended complaint on October 20, 1954.
The plaintiff shipper alleged in its amended complaint the delivery of a shipment of approximately 1,000 cases of plums in good and sound condition to the defendant's vessel, M/S Helena, at the Borough of Brooklyn, New York City, on September 30, 1953, consigned to ports in South America (LaGuaira, Venezuela), specifying that the fruit was to be maintained under refrigerated stowage. The complaint also alleged that the defendant failed to properly and carefully load, handle, stow, carry, keep, care for and discharge the shipment, and that when the plums arrived in port (at LaGuaira, Venezuela) they had become in part spoiled, rotten and unfit for human consumption to plaintiff's damage in the sum of $ 5,000.
The answer of defendant denied the allegations of the amended complaint that the plums were in good condition at the time of their delivery to defendant; that defendant failed to carry them safely; that they were outturned in a damaged condition; and that plaintiff had suffered any damage. Defendant's answer also pleaded certain special defenses: the failure of plaintiff to file a written notice of loss or damage within three days after delivery of the plums at LaGuaira (T. 46 U.S.C.A. § 1303(6)); an allegation that the damage to the plums was due to an inherent vice ( § 1304(2)(m)); and certain other provisions of the Carriage of Goods by Sea Act ( § 1304(2)(c), (i), (n), and (q)).
At the trial the defendant's contention was that the plums deteriorated during the voyage due to an inherent vice; that they were so far advanced in ripening when shipped that they had already reached their marketability; also that when the plums were discharged from the ship at the end of the pier at LaGuaira they were not removed promptly to the Customs shed and they remained too long in the sun.
Failure to give the written notice of damage gives rise only to a presumption that the goods as delivered at the port of discharge were as described in the bill of lading. But the presumption is rebuttable and 'does not survive proof to the contrary'. Teneria 'El Pope' v. Home Ins. Co., 207 Misc. 84, 136 N.Y.S.2d 574. And it does not, after proof of the real condition of the goods at their port of discharge, relieve the carrier from showing how it cared for the goods on the voyage.
Although no formal written notice of claim was filed with defendant or its agents before the plums were removed from the Customs shed on the pier, under an arrangement with defendant's agent hereinafter discussed, the plaintiff and its ultimate consignees orally notified defendant's agent at LaGuaira on October 13th, the date the plums were discharged, when the damage was discovered at the Customs shed on the dock. Three of the ship's officers, the captain, the chief officer and the engineer, on the request of two representatives of defendant's agent at LaGuaira, examined great quantities of damaged fruit of various shippers on the evening of October 13th while the fruit was in the Customs shed at the shore end of the pier. The damage was discovered when some consignees and purchasers found that their shipment of fruit had arrived in damaged condition. 'Contents of a good amount of cases although not condemned and received by consignees' customs brokers without taking any exceptions showed signs of advanced spoilage so that additional damage might have been observed upon receipt at ultimate consignees' warehouses', according to the statement of defendant's Caracas agent, in a letter of November 12, 1953 (Ex. 22).
By arrangement between plaintiff's officer Krupnick, who was in LaGuaira at the time, and defendant's local agent, plaintiff's customers, Rodriguez and Berardini, to whom the plums had been sold September 23rd, salvaged what they could of plaintiff's shipment after they removed it to Caracas, seven miles away. They forwarded to plaintiff's agent, Perez y Perez, in LaGuaira about October 20, 1953, statements showing what they realized from the sale of the salvageable plums. Perez y Perez forwarded the statements to plaintiff in New York. On March 9, 1954, plaintiff filed a written claim with defendant's agents in New York, as defendant had been advised plaintiff would do, and annexed thereto the various documents, which plaintiff received through its agent in LaGuaira, relating to the damaged condition of plaintiff's plums and the salvage of about half of the original shipment. Defendant rejected the claim, on the grounds that there was no liability, by letter dated June 2, 1954, although keeping the documents until August 1954. This suit was filed in October of that year.
At the trial the defendant contended that the damage to plaintiff's plums was due to an inherent vice in the plums, and that the deterioration of the plums during the voyage was due to that and not to any fault of the defendant. The shipper was required to present some evidence beyond the bills of lading, which acknowledge receipt in 'apparent good order and condition', the show the good condition of the plums and that they were fit for the voyage upon their delivery to the carrier. Hecht, Levis & Kahn, Inc. v. The S.S. President Buchanan, 2 Cir., 236 F.2d 627, 631. This the plaintiff shipper did through the testimony of three witnesses (Beach, Stackpole and Fichera) and certain records.
The evidence shows that plaintiff's plums were in good condition and fit to make the voyage to LaGuaira when they were loaded aboard the M/S Helena from an Erie refrigerated barge alongside the ship at a pier in Brooklyn, N.Y. on September 31, 1953. Plaintiff's plums were President Plums and were shipped from Auburn, California, in a refrigerated car on September 12. 1953. The car had a bunker capacity of 1,000 pounds of ice and with a fan that operated by an attachment to the car wheels. The car arrived at the Erie's north yards at Jersey City on September 21st. The contents were examined by Mr. Beach, a fruit products inspector for the Department of Agriculture on September 22nd at 11:45 A.M. He testified to the temperature as about 40 degrees F at the top layers of the boxes, where is would be at its highest. The railroad notice of arrival was for a shipment of 1,000 boxes of plums, but one box was completely empty, another was broken and some of its contents were scattered on the floor when delivery was made at Seaboard Terminal and Refrigeration Company. Mr. Beach examined the boxes of plums in the top layer and reported their condition in an official document as follows:
'Generally hard to firm, few firm ripe and generally dark purple with deep bloom, few full color. No decay.' (Ex. 1)
Beach had been inspecting fruit for over twelve years at the time. In his opinion the plums, under proper storage conditions, would be good for six or eight weeks. He did not claim to be an 'expert', but he had the knowledge gained by long experience as an inspector of fruit.
On September 24th the car was delivered to the siding of the refrigerated warehouse of Seaboard Terminal and Refrigeration Company in Jersey City and was unloaded; and the plums were stored in room 73 of the warehouse where a temperature of 31 to 32 degrees F was maintained. Mr. Stackpole, who at that time had been inspecting fruits for about eleven years, examined the contents of some of the boxes of the shipment. As a witness at the trial he expressed the opinion that the plums then could be stored for six weeks without any trouble. He too did not claim to be an 'expert' but he had the knowledge based on long experience in examining and storing plums and other fruits.
Plaintiff's 998 crates of plums were removed from the Seaboard refrigerator warehouse late in the evening of September 28th in an Erie Railroad refrigerated car and were taken to a refrigerated lighter of the Erie Railroad at Dock 8, Jersey City, located about a mile away. There they were stencil marked and inspected by Mr. Joseph Fichera on September 29th. He was paid five cents a case by the plaintiff for stenciling and inspecting. His inspection was to see whether the plums were bad or sound, and to see that they were properly crated. He saw no signs of any damage to the plums. If he had, he would have reported it to plaintiff.
The plums were moved in the refrigerated Erie lighter from the Jersey City dock to a position alongside the M/S Helena, a trip of about 2 1/2 hours late on the 29th or early on the 30th. They were loaded aboard the ship about 8 A.M. on September 30th and stowed in reefer compartment 4, 'tween decks, starboard side. Two bills of lading and dock receipts, each for 500 boxes of plums (a total of 1,000) were given by defendant's agents, the master and dock superintendent, showing the delivery of the plums in apparent good order and condition. The documents bore a stamped legend that the shipment was to be carried as refrigerator cargo in a refrigerating compartment in which the air temperature was to be maintained between 35 degrees and 41 degrees Fahrenheit. Plaintiff paid defendant $ 2,030 as freight in advance and had paid $ 1,000 railroad freight to have the plums brought here from California. Presumably there was a market for plums in the populous metropolitan area of New York. Plaintiff's president had been in the business of exporting fruit to the Carribean for many years. He too must have firmly believed the plums were in good condition and fit for the voyage, or he would not have shipped them.
The defendant called as a witness Mr. Pascal P. Pirone, an expert on flowers and fruits. In answer to a hypothetical question he expressed the opinion that the plums as described in the report of Mr. Beach were 'within a week of marketing time, ten days at the outside'. I prefer the opinion of the men whose business it had been, for over ten years, to inspect plums and other fruits, as many as twenty carloads a month. They saw the plaintiff's plums. The defendant's expert did not. He testified that plums could be properly stowed only under a temperature of 31 to 32 degrees Fahrenheit and that plums that came from California by rail could not be successfully shipped abroad. But it is a practice in the fruit selling and shipping business to make such shipments. If defendant's expert is correct as to the required ...