Societe Metallurgica Italiana v. Grace Line Inc. , 9 Misc. 2d 358 ( 1957 )

Per Curiam.

The judgment dismissing the complaint against the defendant Grace Line Inc. and dismissing the cross complaint of defendant American Export Lines, Inc., against Grace Line, Inc. is supported by the record and is therefore affirmed. However the stipulation upon which defendant American Export Lines, Inc., relies to relieve it of liability to the plaintiff is not broad enough to accomplish such a result. Plaintiff proved that American Export finally delivered 3,976 cathodes or 13 short of the number delivered by plaintiffs to Grace, the initial carrier.

Pursuant to subdivision (2) of section 3 of the United States Carriage of Goods by Sea Act (U. S. Code, tit. 28, § 1303, subd. [2]) the last carrier is required to prove that it discharged the same quantity of goods at destination as originally received by it. Having admitted short delivery, American Export was obliged to overcome the presumption that it was responsible for the loss and it offered no proof that it received only 3,976 cathodes from Grace in New York.

Consequently the judgment dismissing the complaint against American Export Lines, Inc., was improper and should be reversed and a new trial had between plaintiff and defendant American Export Lines, Inc.

The judgment should be modified by reversing judgment in favor of American Export Lines, Inc. against plaintiff and a new trial ordered between said parties, with $25 costs to plaintiff, and as modified affirmed, with $25 costs to respondent Grace Line Inc.

Hofstadter, Stbuer and Hecht, JJ., concur.

Judgment modified, etc.