*

Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4556.

PLASTIQUE TAGS, INC., Plaintiff-Appellant,

v.

ASIA TRANS LINE, INC., Cho Yang Line and DSR Senator Lines,

Defendants-Appellees.

May 28, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-2236-CIV-LCN), Lenore Carrero Nesbitt,

Judge.

Before EDMONDSON, Circuit Judge, and FAY and GIBSON*

, Senior

Circuit Judges.

FAY, Senior Circuit Judge:

This appeal arises from the District Court's order of summary

judgment in favor of the defendants. The plaintiff, Plastique

Tags, Inc., brought suit under the Carriage of Goods by Sea Act

(COGSA), alleging that the defendant carriers were liable for the

shortfall in a shipment of goods ordered by Plastique and

transported by the defendants. Because Plastique's evidence is

insufficient as a matter of law, we affirm.

I. BACKGROUND

In October, 1992, Defendant Asia Trans Line, Inc. contracted

to transport one sealed container from Inter-Korea Corporation in

Korea to Plastique in New York. Inter-Korea represented that the

container held 4,437,500 plastic bags. Asia Trans then issued a

bill of lading for the cargo, which stated: " "SHIPPER'S LOAD &
COUNT' SAID TO CONTAIN: 5,600 boxes/4,437,500 ... plastic bags."

Asia then contracted with DSR Senator Lines to ship the

container aboard the M/V Cho Yang World. Inter-Korea delivered the

sealed container directly to Senator. Senator then issued another

bill of lading, identical in all material terms to the Asia Trans

bill of lading.

The M/V Cho Yang World delivered the container to New York,

and Senator released the container with its seal intact to a

trucking company. The trucking company transported the container

to Gift Box Corporation of America, Plastique's client. Gift Box

broke the seal, inventoried the container, and found 2,618,500 bags

missing. Gift Box refused to pay Plastique for the shipment.

Approximately one year later, in October of 1993, Plastique sent

notice of the missing bags to an agent of Cho Yang.

Plastique subsequently brought suit against the carriers (but

not Inter-Korea, the shipper). The District Court granted summary

judgment for all the defendants, ruling as a matter of law that

Plastique could not establish a claim under COGSA.

II. STANDARD OF REVIEW

Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.

Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the

light most favorable to the non-moving party. Augusta Iron and

Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,

856 (11th Cir.1988).
III. ANALYSIS

 To hold a carrier liable for missing or damaged goods under

COGSA, a shipper must prove that the goods were damaged or lost

while in the carrier's custody. See Sony Magnetic Products Inc. v.

Merivienti O/Y, 863 F.2d 1537, 1539 (11th Cir.1989). The shipper

can meet this burden by showing: 1) full delivery of the goods in

good condition to the carrier, and 2) outturn by the carrier of the

cargo with damaged or missing goods. Id.

Under COGSA, "a bill of lading shall be prima facie evidence

of the receipt by the carrier of the goods as therein described

..." 46 U.S.C.App. § 1303(4) (1994). COGSA reflects the reality in

international commerce that a buyer must often pay for goods sight

unseen, relying only on the carrier's bill of lading. A clean bill

of lading:

is a fundamental and vital pillar of international trade and

commerce, indispensable to the conduct and financing of

business involving the sale and transportation of goods

between parties located at a distance from one another. It

constitutes an acknowledgment by a carrier that it has

received the described goods for shipment.

Berisford Metals Corp. v. S/S Salvador, 779 F.2d 841, 845 (2d

Cir.1985), cert. denied, 476 U.S. 1188, 106 S.Ct. 2928, 91 L.Ed.2d

556 (1986). As far back as 1895, the First Circuit recognized that

the bill of lading had

become so universal and necessary a factor in mercantile

credits that the law should make good what the bill of lading

thus holds out.

Pollard v. Reardon, 65 F. 848, 852 (1st Cir.1895).

 Thus Plastique argues that the bills of lading issued in this

case constitute prima facie proof that the defendants received full

delivery of the goods, and that any other result would not only
 1

The growth in shipping through the use of sealed containers

has highlighted the importance of clarifying the difference

between a clean bill of lading and a conditional or restricted

bill of lading. When sealed containers are used it is normally

impossible for the carrier to verify the stated contents. In

this case, the parties have stipulated that the container was

sealed when delivered to the carrier, and that the seal was

intact when the container was delivered to Gift Box. 

violate COGSA but also threaten the stability of international

commerce. However, we must conclude that under the facts of this

case, the bills of lading at issue are not clean.1

 In order for a

bill of lading to constitute prima facie proof that the carrier

received cargo consistent with the terms of the bill, it must

either be without limiting language such as "shipper's load and

count" or it must contain terms that the carrier can verify.

 If a bill of lading contains no limiting language such as

"shipper's load and count" then the bill of lading constitutes

prima facie proof for each term. See Nitram, Inc. v. Cretan Life,

599 F.2d 1359 (5th Cir.1979) (though it was not possible for the

carrier to actually count the goods loaded because of the rapidity

of the loading process, where the carrier issued a bill of lading

with no limiting language, the carrier was liable for a shortfall).

If the bill of lading does contain limiting language, but the

terms at issue in the bill of lading are verifiable by the carrier,

then the bill of lading may constitute prima facie proof for those

terms. Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30 (2d

Cir.1982) (the weight of a sealed container is verifiable by a

carrier and so the bill of lading constituted prima facie proof of

the weight at delivery to the carrier, despite limiting language in

the bill of lading).
 However, we agree with the conclusion of the Third Circuit

that if the bill of lading contains limiting language, it does not

constitute prima facie proof of terms not verifiable by the

carrier. See Bally, Inc. v. M.V. Zim America, 22 F.3d 65 (2d

Cir.1994) (while a bill of lading with limiting language

constituted prima facie proof of the weight of a sealed container,

it did not constitute prima facie proof of the number of items

inside the sealed container).

 These distinctions are based on COGSA. COGSA expressly

states that a carrier shall not be bound to include in the bill of

lading a term which he has no reasonable means of checking. 46

U.S.C.App. § 1303(3)(c) (1994). If the carrier includes such a

term without limiting language, he is bound by the bill of lading

whether or not he can verify the term. See Nitram, 599 F.2d at

1369-71 & n. 27. However, if the bill of lading does contain

limiting language stating that a term was supplied by the shipper

and not checked by the carrier, then the carrier is generally not

bound. See Bally, 22 F.3d at 69. The only exception to this

second rule is when the term is easily verifiable by the carrier;

in that case he cannot avoid liability by simply including limiting

language. See Westway, 675 F.2d at 32. This exception is

necessary to prevent carriers from loading obviously empty

containers or obviously inferior goods and avoiding liability by

merely including limiting language.

 In the instant case, 1) the bills of lading contained

limiting language and 2) the amount of goods in the sealed

container was not verifiable by the carrier. Thus the bills of
lading do not constitute prima facie proof of delivery to the

carrier of the full amount. Because Plastique presents no other

proof of good delivery, it cannot show that the loss occurred while

the cargo was in the carrier's custody, and its claim must fail.

IV. CONCLUSION

Because Plastique's proof is insufficient as a matter of law,

the judgment of the District Court is hereby AFFIRMED.