PLANTERS' FERTILIZER MFG. CO., Limited, v. ELDER et al., 101 F. 1001

PARDEE, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

The main contention of the appellant is to the effect that, as the evidence shows that there was a short delivery of cargo, the libelants were estopped by the recitation of the weights as given in the bills of lading as to the amount actually received by the ships to be delivered; and the more so as the bills of lading, as issued by the ships’ agents, were handed over to the shipper, who used them to draw on the consignee for the full amount of the cargo recited to have been received and shipped, and as the consignee, relying upon the verity of the bills of lading and in advance of the arrival of the cargo, paid bills of exchange drawn for the full value of the goods as recited.

A bill of lading is of a twofold character. It is a receipt for goods, and a contract to carry. As a receipt, it makes a prima facie case only, and is undoubtedly open to explanation. See The Lady Franklin, 8 Wall. 325, 19 L. Ed. 455; The Delaware, 14 Wall. 579, 20 L. Ed. 779; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998; Friedlander v. Railway Co., 130 U. S. 416, 9 Sup. Ct. 570, 32 L. Ed. 991.

As the bills of lading in the present case, although containing formal recitals of specific weights, which were made, probably, for the purpose of determining the amount of freight to be paid, were indorsed in one case, “Weight and quantity unknown,” and in the other, “Weight unknown,” there can be no question that the same are open to explanation in regard to the exact amount of goods delivered to the ship; and, as the bills of lading accompanied the drafts drawn by the shippers and paid by the consignee, the consignee was undoubtedly charged with notice that the recitals of weights contained in the bills of lading were purely formal.

The bills of lading in this case being open to explanation, the only practical question is as to the burden of proof. It may well be that in the first instance this would be upon the owners of the ships. In the present case it has been met, so far as to show, by undisputed evidence, that all of the cargo actually received was fully delivered. The conclusion, of course, is that where the bill of lading is indefinite as to the amount of goods received, and the proof shows that all the goods received were actually delivered, the ship must be relieved in reg’ard to alleged short delivery.

This conclusion is in accord with adjudged cases called to our attention. In Campart v. The Prior (D.

C.) 2 Fed. 819, it was held: “Where wheat was shipped to France by several parties under bills of lading specifying that the quantity and quality of the wheat was unknown, and suit was brought for nondelivery of the whole amount, held, that the burden of proof was on the libelants to show the quantity of wheat delivered in Havre, and their case must fall for lack of evidence; the claimants of the ship showing that all the wheat shipped was delivered, and the bills of lading surrendered by the consignees.” In The Ismaele (D.

C.) 14 Fed. 491, it was held: “A cargo of sulphur, on being weighed as delivered, proved to be 28 tons short of the amount stated in the bill of lading, which also contained a memorandum, Weight and quality unknown.’ Three officers of the vessel testified that all the sulphur taken in was delivered, except what escaped through the pumps.

Held, that the burden was upon the consignee to prove that the difference arose from the abstraction of the missing quantity on the voyage.” There is also some contention on the part of the appellant that the decree of the district court is erroneous in that it allows freight upon the amount of cargo recited in the bills of lading, when in fact there was a less amount, by some 80 tons, actually received and carried.

On the face there appears to be some merit in this contention, but an examination of the record shows that the evidence is silent as to the actual contract for carriage, except as contained in the bills of lading; and as in the bills of lading the shipments are recited in bulk as so many tons, at so much per ton, we are inclined to hold with the lower court, and allow for the freight as a contract of carriage in bulk. The appellant also contends that the decree of the court below is erroneous for not allowing interest upon the credit of $1,874.98 from the date of deposit.

As we interpret the decree, while interest is allowed upon the amount of freight from the time of the delivery of the goods, the whole is subject to a credit of $1,874.93 from the date of April 14, 1896, and that, we take it, was the date at which the money paid into court by the respondent was withdrawn by the libelants. If we are correct in this, there is no error in the decree in the matter of interest. The decree appealed from is affirmed.