A cargo of tartar was shipped from Alicante, Spain, to New York, USA, under bills of lading issued by Cia Trasatlantica (Trasatlantica). According to the bills of lading, the cargo was to be carried from Alicante to Vigo, Spain, on the steamer Monte Ayala, and from Vigo to New York on the steamer Marques de Comillas.

The Monte Ayala went aground during a violent storm and remained aground there for approximately three months. Part of the cargo was lost, and that which remained arrived at Vigo too late for the sailing of the Marques de Comillas, but was transhipped to New York on the steamer Magallanes.

The cargo was delivered to the consignee in exchange for guarantees of payment of the freight and miscellaneous charges, as well as proper contributions in general average.

The bills of lading provided that 'in cases of general average, liquidation will be made in Barcelona extrajudicially by experts appointed by the shipowner, and it will be made up according to the provisions of the York-Antwerp rules of 1924, numbers one to fifteen (1 to 15) inclusive, and numbers seventeen to twenty-two (17 to 22) inclusive'.

The shipowners brought an action against the consignee and its guarantor for general average contributions. The shipowner contended that the consignee, by virtue of cl 14 of the bills of lading, bound itself unconditionally to pay the general average expenses found chargeable to its goods by the general average adjusters, and consequently, it and its guarantor were foreclosed from questioning the adjustment.

The respondents contended that the general average statement was prepared without their consent or knowledge and by adjusters unknown to them. It was in conflict with the specific provisions of cl 14 of the bills of lading in that the adjustment was prepared and stated in Bilbao rather than Barcelona, as required by cl 14, and the adjustment was made in accordance with all the numbered and lettered rules of the York-Antwerp Rules 1924 rather than only those rules specifically set forth in cl 14. The respondent also claimed that the vessel went aground due to negligence.

Held: Claim dismissed.

A careful consideration of all the evidence indicated that the grounding was due to the unusually violent storm and was not due to the negligence of those in control of the vessel.

The contention that the statement was not made in accordance with the rules specifically set forth in cl 14 was correct and was sufficient to preclude recovery by the claimants. As conceded by the claimants, it was clear from the depositions of the adjusters that they prepared their adjustment in accordance with r 16 of the York-Antwerp Rules 1924. It was impossible to determine from the depositions that the application of r 16 did not, in fact, affect the amount of the award charged to the consignee's cargo. The burden of proof was on the claimants to prove by a fair preponderance of the evidence that they were entitled to the amount claimed in accordance with the exact provisions of cl 14. Since one of the rules excluded explicitly from cl 14 was in fact applied by the adjusters, the burden was on the claimants to show that it did not affect the amount they claimed. Any findings on this issue would be a matter of speculation, so it must be concluded that the claimants had not sustained their burden of proof, and accordingly, the claim must be dismissed.