(dissenting).
The plain, unambiguous words of Section 20(11) of.the Interstate Commerce Act, as amended, 49 U.S.C.A. § 20(11) uphold this suit. The applicable words are: “Any common carrier, railroad, or transportation company subject to the provisions of this Act receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country, shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property, caused by it .or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading * * The Missouri-Pacific Railroad Co. is a railroad subject to the Interstate Commerce Act. It received this property at New Orleans, a point within a State, for transportation to Boston, a point in another State; it issued its receipt or bill of lading as it was bound to do, and incurred liability for any damage to such property caused by it .or any other common carrier to which it delivered the property on the way to Boston, the destination named in its bill of lading. H. P. Lambert and Co. Inc. is named as consignor and consignee, but the allegation is that plaintiff was at the time the owner. The necessary implication is that Lambert and Co., Inc., was acting for plaintiff. The case is squarely within the words of the Act. There is no federal case to the contrary.
The goods,- it appears from the ship’s bill of lading introduced by stipulation, came to New Orleans by the ship Parana from Buenos Aires, Argentina. The ship’s bill of lading named Emilio Rosier as shipper, the port of shipment Buenos Aires, the port of discharge New Orleans, .and stated the freight was paid at Buenos Aires. The consignee was stated in- these words: “Shipped to the order of The First National Bank of Boston: Notice of arrival should be addressed to (if consigned to shipper’s order) Rudolf Reider, 39 South Street, Boston, Mass.” The ship issued no through bill of lading to Boston. It agreed only to deliver to the order of the Bank at New Orleans, giving notice of arrival to Reider. There is no privity between the ship and Railroad. Most likely the ship’s bill of lading was sent by Rosier to the Bank with a draft on Reider for the purchase money of the hides, and Reider, on being notified of arrival, paid the draft and took up the ship’s bill of lading and sent it to- Lambert and Co., Inc. at New Orleans, who in Reider’s behalf received the goods and arranged to ship them to Boston in bond to the Collector of Customs there. Reider’s allegation that he was owner must be accepted as true on this motion to dismiss, the ship’s bill of lading not being irreconcilable therewith. The only point argued about it is that it shows an intention that the goods should move in uninterrupted transit to Boston as final destination, so that its movement was 'foreign and not domestic -commerce. The cited cases, Texas and N. O. R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442; Railroad Commission of Louisiana v. Texas and Pacific Ry. Co., 229 U.S. 336, 33 S.Ct. 837, 57 L.Ed. 1215; Illinois Cent. R. Co. v. De Fuentes, 236 U.S. 157, 35 S.Ct. 275, 59 L.Ed. 517; Western Oil Refining Co. v. Lipscomb, 244 U.S. 346, 37 S.Ct. 623, 61 L.Ed. 1181; Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672; and United States v. Erie Ry. Co., 280 U.S. 98, 50 S.Ct. 51, *1774 L.Ed. 187, establish that. But that the commerce is foreign as well as interstate merely confirms the exclusive right of Congress to regulate it. No one of these cases construes or applies the regulation made by Section 20(11). Mexican Light and Power Co. v. Texas Mexican Ry. Co., 331 U.S. 731, 67 S.Ct. 1440, 91 L.Ed. 1779, applies the section to a through bill of lading from Sharon, Pennsylvania, to Laredo, Texas, “for export into Mexico”, issued by Pennsylvania Railroad Co., where the goods were injured in Mexico. The suit was brought against the Texas Mexican Railway Co., the last carrier which handled the shipment in the United States. The latter had issued a new bill of lading at Laredo, without any new consideration, to facilitate carriage across the Mexican border. The court held the shipment originated under Section 20(11), Mexico being an adjacent foreign country. So that the liability for the damage done in Mexico was on the Pennsylvania Railroad Co. as the receiving carrier, and not on Texas Mexican Railway Co., notwithstanding the latter’s bill of lading, which was held to be without consideration and void. That case rules nothing as to a reverse shipment originating in Mexico or any other foreign country for which Texas Mexican Ry. Co. might at Laredo give its bill of lading for transportation to a point in Pennsylvania. The State court cases of Aldrich v. Atlantic Coast Line R. Co., 104 S.C. 364, 89 S.E. 315; Best v. Great Northern Ry. Co., 159 Wis. 429, 150 N.W. 484; and Chicago, M. and St. P. Ry. Co. v. Jewett, 169 Wis. 102, 171 N.W. 757, relate to shipments moving out of the United States, and apparently at a time when an adjacent foreign country as destination was not named in the Section. Alwine v. Pennsylvania R. Co., 141 Pa.Super. 558, 15 A.2d 507, was probably correctly decided, for as it insists Sect. 20(11) is not ambiguous and means what it says, and it says nothing about a shipment coming into the United States “on a through bill of lading” (emphasis by the court). A. Russo and Co. v. United States, 5 Cir., 40 F.2d 39, was in admiralty for sea damage, the ship and the Missouri Pacific R. Co., having both issued bills of lading in Italy for transportation into the United States. Section 20(11) is not mentioned. The decision was that the Railroad was acting only as agent in respect of the ocean voyage and was not liable for what happened at sea.
In the present case there is no liability assumed for what happened at sea by this Railroad accepting the property at New Orleans and issuing its bill -of lading. The sea voyage was over. Congress has not by Section 20(11) made liability to relate back to cover it. Neither the receiving nor delivering carrier, under Section 20(11), has any concern with that. The damage to the hides may have occurred by the fault of the ship, but the complaint alleges no such, for it alleges that the shipment was received by the Railroad in good condition and delivered in Boston in bad condition. The plaintiff has the burder of proving good condition at New Orleans, and must lose his case if he cannot prove it. There is no presumption of good condition because the hides are recited to-be in casks and cases, contents and condition unknown, and such words relieve from any presumption. 9 Am.Jur.Carriers, § 422; St. Louis and Iron Mountain & S. Ry. Co. v. Knight, 122 U.S. 79, 7 S.Ct. 1132, 30 L.Ed. 1077, and under the Bills of Lading Act, 49 U.S.C.A. § 101. Application of Sec. 20(11) here cannot give rise to the hardship suggested -of making the domestic carriers subject to the Act responsible for the fault of an importing foreign vessel.
Section 20(11) does not say “initial carrier”, nor does it except goods which may have begun their travel in a foreign country. Its words are "Any common carrier” subject to the Interstate Commerce Act "receiving property for transportation” as stated shall issue the bill of lading and assume the liability for damage "canned by it” or other carriers who transport under that bill of lading. There is no language in the Section, no reason nor authority to the contrary. This case falls within the words Congress used. • .