Krawill Machinery Corp. v. Robert C. Herd & Co.

• Citation: 145 F. Supp. 554
• Decision Date: 24 October 1956
• Docket Number: No. 8117.,8117.
• Court: U.S. District Court — District of Maryland
• Parties: KRAWILL MACHINERY CORPORATION, a Michigan corporation, Kraus Manufacturing Corporation, a Michigan corporation, Engineering Industries International, S.A., a corporation, v. ROBERT C. HERD & COMPANY, Inc., a Maryland corporation, Bethlehem Steel Company, a Delaware corporation.

145 F. Supp. 554

KRAWILL MACHINERY CORPORATION, a Michigan corporation, Kraus Manufacturing Corporation, a Michigan corporation, Engineering Industries International, S.A., a corporation, v. ROBERT C. HERD & COMPANY, Inc., a Maryland corporation, Bethlehem Steel Company, a Delaware corporation.

No. 8117.

United States District Court D. Maryland, Civil Division.

October 24, 1956.

Ober, Williams, Grimes & Stinson, Baltimore, Md., Fildew, DeGree, Fleming & Gilbride, Detroit, Mich. (William A. Grimes, Baltimore, Md., Leslie W. Fleming, Detroit, Mich., of counsel), for plaintiffs.

Lord, Whip & Coughlan, Baltimore, Md. (George W. P. Whip and Robert E. Coughlan, Jr., Baltimore, Md., of counsel), for Robert C. Herd & Co., Inc.

Semmes, Bowen & Semmes, Baltimore, Md. (William D. Macmillan and William A. Fisher, Jr., Baltimore, Md., of counsel), for Bethlehem Steel Co.

THOMSEN, Chief Judge.

This is a suit by a shipper against a stevedore and the owner of a floating crane to recover for damage to a heavy press sustained when the case in which it was enclosed fell into Baltimore harbor while it was being loaded from a railroad car onto a ship. The issues are: (I) which defendant was negligent; (II) whether, as defendants contend, either (A) the contract between the plaintiff shippers and the carrier, or (B) the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., commonly called Cogsa, limits the liability of either or both defendants in this suit to $500; and, if not, (III) the amount of the damages.¹ Plaintiffs contend (A) that there was no contract between the shipper and the carrier which extended any such limitation of liability to either defendant, and (B) that Cogsa does not apply so to limit their liability (1) because no bill of lading covering the press was ever issued, (2) because the damage did not occur within the period "from the time the goods are loaded on to the time when they are discharged from the ship", 46 U.S.C.A. § 1301(e), and (3) because neither defendant is a "carrier" or a "ship", and is therefore not entitled to the benefit of the Act.

Findings of Fact.

Plaintiffs, in fulfillment of a contract with a Spanish company, Comercio, Industria y Transportes, S. A., shipped various items of machinery and equipment from Detroit to Spain via Baltimore. Plaintiff, Krawill Machinery Corporation (Krawill), has succeeded to the rights of the other plaintiffs.

The shipment consisted of 62 cases, which moved by rail and truck from Detroit to Baltimore, where they were to be loaded onto the S. S. Castillo Ampudia for carriage to Valencia, Spain. One case, which contained a large press, weighed 19 tons.

John H. Faunce, Inc. (Faunce), freight forwarders who handled Krawill's shipment, prepared all bills of lading involved in the shipment and delivered them to Garcia & Diaz, Inc. (Garcia), general agents in New York for the owner of the S. S. Castillo Ampudia, for signature. The bills of lading were on the printed forms of Compania Transatlantica Espanola, S. A., Garcia & Diaz, Inc., agents.

After each original bill of lading had been signed by the carrier's Baltimore agent, the original and several copies were delivered in New York by Garcia to Faunce. Faunce in turn delivered the original bill of lading and copies to Graul, a representative of Krawill.

One of the bills of lading was drawn by Faunce to cover eleven cases, including the heavy case involved in this action. After that bill of lading had been signed by the carrier's Baltimore agent, but before its delivery to Faunce, Garcia informed Faunce that one case had been dropped and that the bill of lading would be changed to read ten cases instead of eleven. When delivered by Garcia to Faunce the bill of lading had been so changed, and the figures stating "shipper's gross weight" in kilos and in pounds had been correspondingly reduced. Garcia neither asked for nor received the consent of Faunce or of any one else representing Krawill to make the change in the bill of lading, but it does not appear that any one ever made any objection to the change.

Each of the bills of lading contained, among others, the following printed provisions:

"7. The Carrier's responsibility in respect of the Goods as a Carrier shall not attach until the Goods are actually loaded for transportation upon the Vessel, and shall terminate, without notice, as soon as the Goods leave the Vessel's tackles at destination or other place where the Carrier is authorized to make delivery or end its responsibility. Any responsibility of the Carrier in respect of the Goods attaching prior to such loading or continuing after leaving the Vessel's tackles as aforesaid, whether the Goods are in course of lighterage by the Carrier or however else the same may be situated, shall be the same only as that of a Warehouseman, without liability on the part of the Carrier, except for want of ordinary care; and all conditions, exemptions, exceptions and limitations of the liability of the Carrier, contained in this contract shall be deemed to apply also to such Warehouseman's Liability as well as to liability as a Carrier. * * *

"30. In consideration of a choice of freight rates having been offered to the shipper by the Carrier, it is agreed that in case of loss of, or damage to * * * goods of an actual value exceeding $500 * * * per package or, in case of goods not shipped in packages, per customary freight unit, the value of such goods, shall be deemed to be $500 per package or per said unit and the Carrier's liability, if any, shall be determined on the basis of a value of $500 per package or per said unit and pro rata in case of partial loss or damage, unless the nature of such goods and a value higher than $500 per package or per said unit shall have been declared in writing by the shipper upon delivery to the Carrier and noted on the face hereof and unless payment of the extra freight charge incident thereto shall have been made or promised * * *, in which case such declared value, or the actual value if less, shall be the basis for computing damages and any partial loss or damage shall be adjusted pro rata. * * *

"37. This bill of lading shall have effect subject to the Carriage of Goods by Sea Act of the U. S. A. and the carrier and the ship shall be entitled to all of the rights and immunities set forth in said Act. To the extent that any term of this bill of lading is repugnant to or inconsistent with anything in such Act, it shall be void."

Robert C. Herd & Co., Inc. (Herd), the stevedore, had no written contract with Garcia or with the owner of the ship. Herd has been doing business with Garcia for many years, but never on the basis of a written contract. In the course of their dealings there had been no suggestion that Herd's charges for stevedoring should vary with any declared value of the cargo. Herd's charges are not based on any declared value, but are in accordance with its usual tariff, which provides different rates for different commodities. Such rates are predicated upon weight, density, difficulty of handling and other factors affecting the cost of doing the stevedoring work. This is in accordance with the custom in the port of Baltimore.

The case enclosing the heavy press and other equipment was 8 feet wide, 5 feet long, and 11 feet high. It was loaded onto a flat car, with the press bottom end up. The case rested on two wooden skids, 4 × 4's, 8 ft. long, to which it was bolted. The skid ran across the car. The railroad company carried the case onto the Canton Railroad Pier, on a track which ran about 4 ft. from the side of the pier to which the S. S. Castillo Ampudia was moored, and released the case to Herd. Herd's operating manager realized that the case was too heavy for the ship's gear, and arranged with Bethlehem Steel Company to have a floating derrick, owned by Bethlehem and operated by its employees, come alongside the ship to assist in loading the case.

The derrick arrived about 1 p. m. on April 14, 1954, the day of the accident, and tied up on the offshore side of the ship opposite the No. 2 hold, into which the case was to be loaded. The crane operator was told that the case was not to be loaded until about 2 p. m., so he left the barge which carried the crane, went onto the deck of the ship, and looked at the case. He then returned to his barge and swung the boom of the crane over the ship so that the hook and the gear were over the flat car.

The floor of the operator's control room was about level with the main (weather) deck of the ship; the crane operator could not see the flat car or the crate from where he stood to operate the crane, and it was necessary for Herd's deckman to relay to the crane operator the signals he received from Herd's gang carrier on the pier.

Herd's operating manager was on the pier, but did not concern himself with the loading of the case after the floating derrick had been ordered. A gang carrier, Wilkerson, who had worked for Herd for twenty years, was in charge of the loading operation. Of his gang of fifteen men, four were on the pier with him, one was on the deck, and the rest were in the hold.

Wilkerson found that he could not get the regular wire sling under the crate on the flat car because the wire was too thick. He therefore decided to work a thinner wire under the shore end of the skids, attach this thinner wire to the hook of the crane, and have the crane lift or tilt the case sufficiently high for him to slide the regular sling under the skids, or to place one or more chocks under the skids so that the regular sling could be placed around the case.

Such an operation is not unusual when stevedores are loading heavy machinery with the aid of a derrick. The crane operator knew that the first lift he would be called upon to make would be a relatively short one, but he did not know and was not told how short it was to be.

Wilkerson, the gang leader and responsible representative of Herd at the time, did...