(dissenting).
Being in substantial agreement with the carefully considered opinions of the learned district court,1 I respectfully dissent.
It is elementary that the burden rests-on the shipper to prove delivery to the-carrier in good condition before he can recover for the damaged condition of the shipment upon its arrival at destination. To meet that burden as to each of the 1462 carloads of cantaloupes, the shippers relied on the bills of lading issued' by the carrier at Laredo, Texas. Those-bills of lading acknowledged receipt “in apparent good order and condition” of each of the cars, described by initial and number, loaded with a specified number of “Jumbo crates cantaloupes origin in Mexico SL&C”. “SL&C” means shipper’s load and count.
The district court held “that the bills of lading here created a presumption that the crates and cantaloupes were in good condition, at least so far as could be determined by ordinary inspection, when received by defendant at Laredo and defendant has the burden of going forward with proof to overcome the presumption.” 165 F.Supp. 204, 207. After hearing the-evidence, examining a small model car with removable top showing the manner of loading the crates and the limited opportunity for inspection, and making, upon the invitation of the parties, personal inspection of a number of cars of Mexican cantaloupes in Laredo, especially as to packing and loading, the district court made detailed findings of the evidence which it thought sufficient to overcome any presumption or prima facie case:
“ * * * that the type of inspection made at Nuevo Laredo, Mexico, or Laredo, Texas, is not such that any witness can look at a loaded *795car and tell that there is no breakage damage in it; indeed, the court believes from all the evidence that it would be possible for considerable damage to exist, not visible or apparent from such inspection; that the only way of establishing definitely that the cantaloupes were delivered in good condition and in undamaged crates is to unload in Nuevo Laredo, inspect and re-load, which can be done without too great an expense. The court further finds that generally there is more damage in Laredo in cars which are not unloaded than is visible; and, circumstantially, from the fact that this is true with reference to shipments generally, the court finds that there was more damage in the cars in question than was visible or apparent at the times the bills of lading were issued; at least that plaintiff has failed to show that there was not more damage than was apparent or visible at the time of the inspection. Damage from crate breakage is progressive and, even though there may be damage to the crates only at Laredo, and not always the melons, if the transportation is continued, damage to the cantaloupes will result. The court further finds that the presumption relied upon by plaintiffs disappeared in view of the evidence here and, circumstantially, that there is as much reason to believe that at least a proportionate part of all crate damage, and consequent damage to the cantaloupes, occurred in the transportation by Mexican railroads to Nuevo Laredo as occurred after receipt of the cantaloupes by defendant at Laredo.” 165 F.Supp. at page 210.
The shippers knew that they, or their consignors, had loaded the cars at a point in Mexico approximately 850 miles from Laredo. The loaded cars were tendered by the shippers to the defendant carrier at Laredo. It was then physically impossible to look at a loaded car and tell whether the car contained no damaged crates. The carrier was authorized to insert in the bill of lading “SL&C”, meaning shipper’s load and count, and thereby to relieve itself from liability for damages caused by improper loading.3 There was no testimony as to the condition of the crates or of the cars at the time they were loaded in the interior of Mexico.4 When the defendant carrier acknowledged receipt of the shipments in Laredo “in apparent good order and condition,” its admission extended no further than it said, namely, to the external appearance of the shipments; that is, from a reasonable inspection of the cars as loaded, they appeared to be in good order and condition. That seems to me to be the concensus of the holdings in nearly all of the cases which are collected in the annotation in 33 A.L.R.2d 867-879.
There was no proof of anything peculiar about the handling of the 141 carloads of cantaloupes involved in this action. The evidence showed that the cost of an investigation to determine the cause of breakage damage in each particular car would probably be greater than the amount of damage. Accordingly, the American railroads, as a matter of expediency and business practice, have adopted a policy of prorating between themselves on a mileage basis the amount of the damage. The National Railways of Mexico will not participate in any such proration. The defendant carrier in this case paid to the shipper that part of the breakage so allocated to the American line without prejudice to the right to sue for the part so allocated to the Mexican railroads and deducted from the breakage. To me that seems to be acting in a spirit of fairness. Further, I think the district court properly considered the methods of loading, packing and handling, the kind of inspection possible at Laredo, and the studies showing that in nearly all cases there was more breakage *796to the crates when the cars arrived in Laredo than could be ascertained by an ordinary inspection.
It was competent, I think, for the shipper and the carrier to contract upon the basis of the shipper’s load in the interior of Mexico and the condition of the shipments apparent in the loaded cars when they arrived at Laredo. The carrier was under no duty either to require the shipper to unload and reload the cars before acceptance, or itself to do so after acceptance, in order to make a more complete inspection.
Under all of the circumstances of this case, I cannot say that the district court erred in holding that the presumption of good order and condition at the time of delivery to the carrier was a limited presumption, nor that its finding that that presumption had been overcome by the evidence was clearly erroneous.
I therefore respectfully dissent. .
Rehearing denied; RIVES, Circuit Judge, dissenting.
. Reported in 165 F.Supp. 204 to 210.
. Actually 141 ears because it developed that five of the 146 did not move by the defendant carrier, and they -were eliminated by agreement.
. 49 U.S.C.A. § 101.
. Compare Chicago & N. W. Ry. Co. v. C. C. Whitnack Produce Co., 1922, 258 U.S. 369, 372, 42 S.Ct. 328, 66 L.Ed. 665.