Kelly, Weber & Co. v. Franklin Fire Ins. Co., 18330.
| Decision Date | 26 September 1930 |
| Docket Number | No. 18330.,18330. |
| Citation | 43 F.2d 361 |
| Parties | KELLY, WEBER & CO., Limited, v. FRANKLIN FIRE INS. CO. |
| Court | U.S. District Court — Eastern District of Louisiana |
Montgomery & Montgomery, of New Orleans, La. (Richard B. Montgomery, Jr., of New Orleans, La.), for libelant.
J. C. Hollingsworth, of New Orleans, La., for respondent.
This is an action to recover on a contract of marine insurance against the Franklin Fire Insurance Company for the loss and damage to a cargo of acid phosphate fertilizer which was shipped on the steamship Redman. The libelant alleges that this damage was caused by perils of the sea and that such loss is covered by the policy of insurance issued by the respondent.
The cargo in question was shipped to the libelant by the Standard Wholesale Phosphate & Acid Works of Baltimore, Md. The shipper chartered the full cargo space of the steamship Redman, furnished the labor, and loaded about 5,000 long tons of acid phosphate fertilizer on board. The fertilizer was packed in jute or burlap bags, each containing 200 pounds of 16 per cent. or more acid phosphate, and same was laden in the bottom of the vessel and against the skin of the ship and piled up one above another in tiers at least 20 feet high. The cargo was received on board in apparent good order and was shipped under a bill of lading which bears the notation across its face, "Shippers load and count all on board to be delivered," and same was covered under a policy of insurance which the shipper had previously taken out for the benefit of the libelant insuring this cargo against perils of the sea.
When about seventy miles out from Baltimore, the Redman during a heavy fog went hard and fast aground on an uncharted mud flat in Chesapeake Bay. In my opinion this was an extraordinary occurrence and must be understood to be one of the "perils of the seas" referred to in the policy. Hazard v. New England Marine Insurance Co., 8 Pet. 557, 584, 8 L. Ed. 1043. Because of the grounding it was necessary to lighter the vessel; accordingly, after assistance had been procured from Baltimore, 400 tons of the fertilizer, constituting the topmost tiers of the upper stowage, was taken out of the No. 1 hold of the vessel and loaded into a covered lighter. To further lighten the vessel, 130 tons of the ship's water was jettisoned from her ballast tank forward, and thus buoyed up the Redman was able to extricate herself with the assistance of two tugs and a revenue cutter. After she came off into deep water the cargo was reloaded on the ship. Into the same No. 1 hold was placed 270 tons of the fertilizer that had been removed to the lighter and the remaining 130 tons was laden in the bridge deck, No. 3 hatch, separate from the other cargo. During the lightering the sea was rough and it rained intermittently; however, the weather was not extraordinary and operations were not carried on during the rain, and while spray undoubtedly did reach some of the outside bags in the slings, it is apparent that no damage resulted therefrom.
The Redman then put into Newport News for a survey to determine whether she was in a safe and fit condition to proceed with her voyage. The surveyor to Lloyd's Registry of Shipping found no apparent defect in the vessel's machinery, no evidence of water or sign of any leakage, and she was issued a certificate recommending that she be continued in Class 100-A-1. With this assurance of safety she proceeded on to New Orleans, at which port she finally arrived after having been delayed about five days as a result of the grounding. There she was met by representatives of libelant and a marine surveyor on cargo who witnessed the cargo being unloaded. The bags that were removed from the bridge deck were found to be in good condition and their contents apparently sound; those from the forward part of the vessel that had been discharged to the lighter in Chesapeake Bay were in like condition, and though a few of the bags showed some evidence of water contact, the contents did not appear in any way to be affected. Undoubtedly a few of the bags were torn, but this presented no unusual condition, and the evidence clearly justifies the conclusion that all of the...
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