Harry Meyers Co. v. Cunard Steamship Co.

Keller, J. This is a case tried before the court without a jury. Plaintiff claims damages amounting to $2,448.19 arising out of the receipt of a crate of antique furniture in a damaged condition. The furniture was shipped by steamship Caronia from plaintiff’s consignor in London in a sealed wooden case and was accepted by the shipper without examination or knowledge of contents. The bill of lading, however, contained the following printed clause: “ Received * * * in apparent good order and condition.” Neither party offered any proof of condition when received by the shipper. Two questions of law are involved: (1) Does the recital in the bill of lading that the crate was received in “ apparent good order ” create any presumption in favor of plaintiff or relieve him from the burden of establishing that the contents of the crate were in good order when delivered to the shipper? (2) Is the limitation of damages to £100 per package or crate enforcible under the terms of the contract of carriage, said limitation being provided by the English Carriage of Goods by Sea Act and incorporated in the bill of lading? The law is well settled in this State that there is no presumption created in favor of the plaintiff by the existence of a clause in the bill of lading stating that the package is received in apparent good order. 876 He nevertheless has the burden of proof to show that the contents of the package were in good order when delivered to the shipper. (Jean, Garrison & Co. v. Flagg, 45 Misc. 421; Orunsten v. New York Central R. Co., 179 App. Div. 465; The Dondo, [D. C.] 287 F. 239.) Having failed to establish a prima facie case the complaint must be dismissed. This disposition makes it unnecessary to consider the second question of law involved. Exception is allowed to the plaintiff, who is also given ten days’ stay and thirty days to make a case. Submit findings.