
    WARNER BARNES & CO., Limited et al. v. KOKOSAI KISEN KABUSHIKI KAISHA. COMPANIA GENERALE DE TOBACOS DE FILIPINAS v. SAME.
    Nos. 222, 223.
    Circuit Court of Appeals, Second Circuit.
    April 25, 1939.
    For former opinion, see 102 F.2d 450, reversing decree in 19 F.Supp. 530.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

The respondents upon the original argument did not raise the question whether the libellants had given the notice required by the bills of lading before removing the damaged sugars. Having lost upon the main appeal, they now ask us to decide that the libellants had not done so in the case of the two parcels of sugar delivered at the Franklin Sugar Refinery on May 10th, 1934. That issue had been raised in the answers and some at least of the facts were developed at the trial; moreover, the respondents could not raise the point by assignments of error, because they had succeeded below on all points. On the whole and in spite of the delay, we are disposed to overlook their failure to argue the question; but we will not decide it on this record. The cause must in any event go. to a commissioner, before whom the facts touching the notice can be more fully developed. Under the law as settled in this circuit, the shipper has the burden of proof. The General George W. Goethals, 2 Cir., 298 F. 935; Cudahy Packing Co. v. Munson S. S. Line, 2 Cir., 22 F.2d 898; United States Industrial Alcohol Co. v. Calmar S. S. Corp., 2 Cir., 57 F.2d 182; Bank of California N. A. v. International Mercantile Marine Co., 2 Cir., 64 F.2d 97. We need not consider whether the Carriage of Goods by Sea Act has changed it, because all the contracts of carriage in suit, i. e. the “sugar freight engagements”, were made before April 16, 1936, and the final decrees were entered on April 13, 1937. Therefore under § 15 of that act, 46 U.S.C. A. § 1314, none of its provisions applied to the bills of lading issued under those contracts. The commissioner, as part of the calculation of damages, will, therefore, determine whether the libellants complied with the provisions of the bills of lading, in the case of the two deliveries to the Franklin Sugar Refinery.  