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May 4, 1979

C. ITOH & CO. (AMERICA), INC., Plaintiff,
HELLENIC LINES, LTD., Universal Cargo Carrier, Inc. and S/S Hellenic Star, her engines, boilers, etc., Defendants

The opinion of the court was delivered by: WEINFELD


Plaintiff, C. Itoh & Co. (America), Inc., the consignee of a shipment of 247 cartons of leather cowboy boots, seeks recovery of damages for their outturn in damaged condition from the carrier, Hellenic Lines Ltd., under the Carriage of Goods by Sea Act ("COGSA"). *fn1" On August 18, 1974, at Calcutta, India, the cargo was loaded on board the S.S. Hellenic Star for delivery to New York. A clean bill of lading noting apparent good order and condition was issued by the carrier and the cargo was stowed in the No. 1 Hatch. The vessel arrived at a pier in New York City on October 4, 1974; plaintiff's trucker picked up the goods at the pier on October 10-11 against the following exceptions noted in Hellenic Lines' delivery book:

101 cartons wet stain
28 cartons wet stain and recoopered intact
61 cartons recoopered intact
1 carton No. 1833 recoopered 17 pair in.

 The goods were delivered to a warehouse where they were inspected by a surveyor designated by plaintiff. Although defendant was invited to attend and participate in a joint survey, it failed to do so. *fn2" The contents of the 129 wet-stained cartons were eventually sold for salvage and the instant suit followed.

 Plaintiff establishes a prima facie case under COGSA by proof of delivery of the cargo to the carrier in good condition and its outturn at destination in damaged condition. *fn3" The burden then shifts to the carrier to prove "(1) that the harm resulted from an "excepted cause' for which the carrier was not liable, or (2) that it exercised due diligence to avoid and prevent the harm." *fn4"

 Plaintiff relies on the clean bill of lading "(as) prima facie evidence of the receipt by the carrier of the goods as therein described." *fn5" To prove bad order on outturn, plaintiff offers the exceptions noted in the delivery book at defendant's pier and the survey report and testimony of Albert Cameron, its designated surveyor. Cameron, who inspected the goods on October 18, December 11, and January 10, testified that he found a representative sampling of the boots to be wet-stained and mildewed to varying degrees; that in his opinion, the damage was caused by a moderate, fresh-water wetting.

 Defendant, rather than attempting to prove due care, challenges the sufficiency of plaintiff's prima facie case. It contends that the clean bill of lading only attests to the external condition of the cargo and that plaintiff must prove the actual good order of the contents of the cartons on delivery to the carrier. It is true that in the case of perishable property or when the "goods themselves contain some basic, inherent, and hidden defect," a clean bill alone will not suffice. *fn6" But defendant points to no such properties in the goods at issue. Moreover, even with respect to perishable cargo, a plaintiff may satisfy its burden of proof by showing "from the condition of the cargo as delivered or otherwise, that the damage was caused by the carrier's negligence and not by any inherent vice in the cargo." *fn7"

 Here leather boots, packed one pair per single-wall cardboard box and eighteen pairs to a multi-wall corrugated cardboard carton, were delivered to the vessel for loading on August 18. According to the ship's log, it rained in Calcutta on all but one day from August 7-14 and again on August 19. If the wetting had occurred prior to delivery of the cargo to the carrier, the corrugated cartons would have been wetted and water stained as they were on outturn. *fn8" But the clean bill of lading negates this theory of the cause of damage. Defendant's suggestion at trial that the boots were packed wet and, because of their hygroscopic nature, transmitted moisture outward staining the cartons, is sheer speculation. *fn9" Apart from the fact that it is without the slightest evidentiary support, this theory is rebutted by Cameron's testimony, which the Court finds credible, that the pattern of staining indicates the source of the wetting was external.

 Defendant also contests plaintiff's proof of outturn in damaged condition. Here defendant claims entitlement to a "presumption" of delivery in good order because the trucker's exceptions were to the master cartons only with no notations as to the condition of their contents and because Cameron's initial survey of the boots themselves did not occur until October 18, beyond the three-day period allowed by COGSA for notifying the carrier of damage not apparent at delivery. *fn10" Defendant's formalistic reading of the COGSA notice provision must yield to the facts. Within a day after discharge of the cargo to the trucker, defendant had written notice of plaintiff's intent to enter a claim for approximately "90 cases crushed and damaged and wet"; shortly thereafter it was invited to participate in a joint survey of the cargo but failed to do so.

 Moreover, lack of notification of loss or damage is only prima facie evidence of good order on outturn and may be rebutted. *fn11" Plaintiff has provided ample proof that the cargo was discharged damaged. The trucker's exceptions, identifying water damage to 129 master cartons, were confirmed by Cameron's survey of the contents. In this instance too, defendant's theory that the cargo was wetted after it relinquished control of the shipment and before the survey is sheer speculation and fails to explain the change in the external appearance of the cartons between loading in Calcutta and discharge in New York. In short, plaintiff has established a prima facie case of liability. Defendant has offered no explanation for the damage that occurred, but "the law casts upon him the burden of the loss which he cannot explain or, explaining, bring within the exceptional case in which he is relieved from liability." *fn12"

 We next consider the question of damages. The usual measure is the difference between the fair market value of the goods at the port of destination in the condition they were in when shipped and their value as damaged. *fn13" Plaintiff, in support of its burden of proof on this issue, *fn14" offers the deposition testimony of Ray Levine, its Vice-President in the footwear department, as to the fair market value of sound leather boots in infant, child, and youth sizes in the fall of 1974. The proceeds of the salvage sale, $ 1,741.50, are offered as evidence of their ...

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