McNeely & Price Co. v. Ellerman & Bucknall SS Co., 381 of 1947

• Citation: 100 F. Supp. 339
• Decision Date: 26 June 1951
• Docket Number: No. 381 of 1947,381 of 1947
• Parties: McNEELY & PRICE CO. v. ELLERMAN & BUCKNALL S. S. CO., Limited, et al. The CITY OF WINDSOR.
• Court: U.S. District Court — Eastern District of Pennsylvania

100 F. Supp. 339

McNEELY & PRICE CO. v. ELLERMAN & BUCKNALL S. S. CO., Limited, et al.

The CITY OF WINDSOR.

No. 381 of 1947, Admiralty.

United States District Court, E. D. Pennsylvania.

June 26, 1951.

Clark, Brown, McCown, Fortenbaugh & Young, Philadelphia, Pa., for libellant.

Rawle & Henderson, Philadelphia, Pa., for respondents.

KALODNER, Circuit Judge.

This is an action in admiralty to recover cargo damage. The cargo involved is three out of a total shipment of thirty-two bales of goatskins.

I find the facts as follows:

The thirty-two bales of goatskins were, for the purposes here, the property of the libellant. They had been properly cured and packed, and were shipped aboard the respondent's vessel, "City of Windsor", on August 26, 1946, at Karachi, India and stowed in the No. 2 'tween deck. About sixteen days later, when the vessel was at Calcutta, India, the bales were moved to the No. 1 shelter deck, and properly stowed. The vessel arrived at Pier 98, Philadelphia, Pa., on December 13, 1946, and discharged the bales some time prior to December 19, 1946, on which date they were taken by the libellant to its warehouse. The libellant set aside three bales as damaged. On December 27, 1946, and in January, 1947, the damaged bales were examined by surveyors, and the damage found to be one-third their value. The particular nature of the damage was deterioration of the skins or putrefaction, caused by wetting. The bales were varyingly wet on December 27, 1946, and water stains on the burlap coverings corresponded to the internal damage to a great degree. The bill of lading for the shipment of thirty-two bales acknowledged receipt in apparent good order and condition, except for rusty hoops; the bales in fact were not bound by metal hoops. The damage to the skins occurred after the bales were taken aboard the vessel at Karachi, and before they were discharged at Philadelphia. The total damage amounted to $1,238.61, which represents the loss to the libellant.

The contested issue in this case is whether the damage occurred while the goatskins were within the care and custody of the respondent. I have found, in effect, that it did. The legal liability of the respondent is well settled, and I need not reiterate here the discussion contained in Roberts & Co. v. Calmar S. S. Corp., D.C. E.D.Pa.1945, 59 F.Supp. 203, and The Ciano, D.C.E.D.Pa.1946, 69 F.Supp. 35. The respondent here attempted, by way of exculpation, to show that it properly cared for and handled the cargo, and that the damage must have occurred before or after the skins were on board the vessel; and to put the libellant to proof that the skins were in fact in good order and condition when the vessel took them at Karachi, or the extent of the damage, if any, at the very date of discharge. See The Niel Maersk, 2 Cir., 1937, 91 F.2d 932; also George F. Pettinos, Inc., v. American Export Lines, Inc., D.C.Pa. 1947, 68 F.Supp. 759, affirmed 3 Cir., 1947, 159 F.2d 247. In my opinion it has not succeeded.

Mr. Meinell, an expert surveyor in whom I repose confidence, put the damage clearly within the vessel's responsibility to explain. Captain Robertson, another surveyor, who began as the respondent's witness and had represented the respondent at the surveys of December 27, 1946, and January, 1947, was somewhat wider in his opinion of the dates on which the damage could have been initiated. On the whole record, I am convinced that the damage could not have occurred after the skins left the vessel, not only because of Mr. Meinell's testimony, but also because Captain Robertson believed that in view of the degree of external rotting he had observed, it must have been earlier than two or three weeks before he examined the skins on December 27th, and that would put it before the skins left the vessel. Captain Robertson was uncertain whether the internal wetting was old or not.

As to the earliest date on which the damage could have been initiated, Mr. Meinell believed that it was a month or five weeks prior to December 27th, when he first saw the skins. Captain Robertson estimated it at three to four months prior to December 27th, which is at best about the time the skins were taken aboard the "City of Windsor", or a month after, and I think the four month estimate is too extreme. The suggestion was made that the bales had been wet before being put aboard the vessel, had dried out, and were wet again. I do not believe this to have been the case: As I have found, the internal damage corresponded with the external wetting as manifested by the stains on the burlap, and yet the bill of lading acknowledged receipt in apparent good order and condition. While Captain Robertson, it is true, was inclined toward a low opinion of those who do the examining, Mr. Rigg, the Chief Mate of the "City of Windsor", said he looked at this shipment himself; that it had been passed by two checkers and the third officer, and that if the burlap had appeared used or stained a notation to that effect would have been placed on the bill of lading.¹ The laxity of those whose responsibility it is, on the ship's behalf, to examine the cargo received may explain how damaged cargo is accepted, but it does not...