Commodities Reserve Corporation; Royal Insurance Company Ofamerica; Klein Brothers, Inc.; Highlandsinsurance Company, Appellants, v. M/s Roumania, Her Engines, Tackle, Boilers, Etc.; G.p.calliminopulos; Atlantic & Gulf Stevedores, Inc.,defendants,hellenic Lines, Ltd., Defendant, v. Atlantic & Gulf Stevedores, Inc., Third-party Defendant,belt's Wharf Warehouses, Inc., Appellee, v. Atlantic & Gulf Stevedores, Inc., Third-party Defendant,ajc International, Inc., Appellee, v. Orkin Exterminating, Inc., Appellee,b & H Associates, Inc., Third-party Defendant.commodities Reserve Corporation; Royal Insurance Company Ofamerica; Klein Brothers, Inc.; Highlandsinsurance Company, Plaintiffs, v. M/s Roumania, Her Engines, Tackle, Boilers, Etc.; G.p.calliminopulos; Atlantic & Gulf Stevedores, Inc.,defendants,hellenic Lines, Ltd., Defendant, v. Atlantic & Gulf Stevedores, Inc., Third-party Defendant,belt's Wharf Warehouses, Inc., Appellee, v. Atlantic & Gulf Stevedores, Inc., Third-party Defendant,ajc International, Inc., Appellant, v. Orkin Exterminating, Inc., Appellee,b & H Associates, Inc., Third-party Defendant, 838 F.2d 465 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 838 F.2d 465 (4th Cir. 1987)

Dec. 23, 1987


David W. Skeen (James D. Skeen, Wright, Parks, Constable & Skeen), for appellants.

Scott A. Hunsicker (Prem & Dumbler, on brief), for Belt's Wharf Warehouses, Inc., for appellee/cross-appellee.

Michael J. Jack (Howard G. Goldberg, Smith, Somerville & Case), for appellee/cross appellant AJC International, Inc.

Andrea T. Shandell (Joel M. Savits, Jordan, Coyne, Savits & Lopata), for appellee/cross appellee Orkin Exterminating Co., Inc.

Before DONALD RUSSELL, WIDENER, and CHAPMAN, Circuit Judges.

WIDENER, Circuit Judge:


In an order reported in 806 F.2d 501 (4th Cir. 1986), we referred this case to the Court of Appeals of Maryland under Md.Ann.Code, Courts & Jud.Proc. Secs. 12-601 and 12-603, following which referral the Court of Appeals promptly responded in its opinion reported in 320 Md. 365, 529 A.2d 822 (1987). It held that, under Maryland law, because the plaintiff had failed to satisfy the trier of fact that the infestation originated solely in the Mexican garbonzo beans, that was a failure to satisfy the trier of fact that the Turkish beans had been delivered in good condition and were not the source of the weevils. Because of this, any presumption of negligence which might operate in favor of the plaintiff bailor upon establishment of delivery of the beans in good condition to the warehouseman was held not to apply.

On the whole case, without, of course, taking into account any such presumption, the Maryland Court decided that under Maryland law the burden of persuasion remained on the plaintiff bailor.

Because the district court found that the evidence as to the source of infestation was in equipoise, the plaintiff bailor has failed to carry its burden of persuasion.

The judgment of the district court is accordingly

AFFIRMED.