Thomas Roberts & Co. v. Calmar SS Corporation

• Decision Date: 22 February 1945
• Docket Number: No. 45 of 1942.,45 of 1942.
• Citation: 59 F. Supp. 203
• Parties: THOMAS ROBERTS & CO. v. CALMAR S. S. CORPORATION et al.
• Court: U.S. District Court — Western District of Pennsylvania

59 F. Supp. 203

THOMAS ROBERTS & CO. v. CALMAR S. S. CORPORATION et al.

No. 45 of 1942.

District Court, E. D. Pennsylvania.

February 22, 1945.

COPYRIGHT MATERIAL OMITTED

Shields, Clark, Brown & McCown, of Philadelphia, Pa., for libellant.

Krusen, Evans & Shaw, of Philadelphia, Pa., for respondent Calmar Steamship Corporation.

Rawle & Henderson, of Philadelphia, Pa., for respondent St. Paul Fire & Marine Ins. Co.

KALODNER, District Judge.

This is a libel for cargo damage against the Calmar Steamship Corporation wherein the libellant cargo owner, Thomas Roberts & Company, has joined the St. Paul Fire & Marine Insurance Company as a respondent.

The legal status of the libellant, its ownership of the goods, the fact of the shipment and issuance to libellant of the bill of lading and certificates of insurance, the fact of damages and the amount of libellant's net expense in reconditioning the goods are admitted by respondents by stipulation. Although there are collateral issues, there are two broad questions for determination: Whether the Calmar Steamship Corporation is answerable for the damage, and whether the damage comes within the risks insured against by the St. Paul Fire & Marine Insurance Company.

On the basis of the pleadings and the testimony, I make the following

Findings of Fact

1. At all times involved in this case, the libellant was and now is a partnership consisting of W. W. Thrasher, L. A. Thrasher, W. J. Rothrock, and J. H. Rothrock, general partners, and Wainright Churchill, special partner, trading as Thomas Roberts & Company, with a place of business at No. 135 South Second Street, Philadelphia, Pa.

2. Respondent, Calmar Steamship Corporation, at all times involved in this case was and still is a corporation duly organized and existing under the laws of the State of Delaware, owning and operating the steamships "Oakmar", "Flomar", and "Calmar" as general ships in the common carriage of merchandise between Baltimore, Maryland, and Seattle, Washington, and other ports.

3. At all times involved, respondent St. Paul Fire & Marine Insurance Company was a corporation duly authorized to issue insurance within the Commonwealth of Pennsylvania.

4. In November and December, 1940, respondent Calmar Steamship Corporation agreed to carry for libellant from Baltimore, Maryland, to Seattle, Washington, 6,398 cases of No. 10 tin cans of beets under Government form bill of lading.

5. Said agreement was initiated by libellant in two letters dated respectively November 25 and December 9, 1940, each referring to a part of said total of 6,398 cases, and in each of which letters libellant stated as follows:

"These goods are for shipment on Government B/L.

"Under no consideration, are you to load any of these beets on your steamer unless you can furnish the Government with a clean B/L. Please have no misunderstanding regarding this."

6. Respondent Calmar Steamship Corporation accepted the orders of libellant in said two letters and subsequently did issue a clean Government form bill of lading covering the cases hereinafter referred to.

7. Libellant's canned beets were packed at Ontario, New York, and shipped from there in six railroad cars to Baltimore, Maryland.

8. The first two cars, containing 2,000 cases of said canned beets, were shipped from Ontario on November 30 and December 3, 1940. They were loaded onto the S/S "Oakmar", which left Baltimore on December 8, 1940, and arrived at Seattle on January 17, 1941.

9. A third car, containing 1,000 cases, left Ontario, on December 4 and the cases were unloaded from said car at Baltimore on December 14, 1940. Respondent Calmar Steamship Corporation rejected 14 of said cases for the stated reason that they were damaged, and the remaining 986 cases were loaded onto the S/S "Flomar", which left Baltimore on December 15, 1940, and arrived at Seattle on January 20, 1941.

10. The remaining three cars, containing 3,398 cases, left Ontario on December 12, 13 and 14 and were unloaded at Baltimore on December 20, 1940, where respondent Calmar Steamship Corporation rejected 19 cases for the stated reason that they were damaged. The remaining 3,379 cases were loaded onto the S/S "Calmar", which left Baltimore on December 21, 1940 and arrived at Seattle on February 2, 1941.

11. On each of the said three vessels the canned beets were stowed in the wings of No. 4 hold, which is as good a place for stowage of cargo of this nature as could be found on said steamships.

12. Respondent Calmar Steamship Corporation, as required by the instructions of libellant, issued one bill of lading on Government form, dated December 21, 1940, covering the total of 6,365 cases which went forward on said three steamships, and receipting for the cases as in "apparent good order and condition."

13. Said bill of lading contained the following provision:

"Unless otherwise specifically provided or otherwise stated hereon, this bill of lading is subject to the same rules and conditions as govern commercial shipments made on the usual forms provided therefor by the carrier."

There was nothing "otherwise specifically provided or otherwise stated" on said bill of lading.

14. The usual form bill of lading provided by respondent Calmar Steamship Corporation in connection with commercial shipments at said time contained the following clause:

"16. Neither carrier nor vessel shall be liable for any loss, damage or delay * * * arising from any of the following causes: * * * causes beyond the carrier's control; * * * mildew, mould * * * inherent defect or vice propre; * * * insufficiency of package, in strength or otherwise * * * rust, stain, discoloration, * * * or for injuries or soiling of wrappers or containers; * * *".

15. Respondent, Calmar Steamship Corporation, arranged for libellant's cargo to be insured with respondent, St. Paul Fire & Marine Insurance Company, which accordingly issued its three several certificates of insurance covering the shipments of canned beets belonging to libellant.

16. Said insurance covered, among other risks not pertinent here, "loss or damage caused by sweat, fresh water, steam of hold, contact with oil and/or with other cargo and theft, pilferage and nondelivery, all irrespective of percentage."

17. On discharge at Seattle, some cases and cans from each of the three steamships were damaged; cases were found mouldy, cans were found rusted, and labels were found soiled.

18. The rust on the cans and the stain or soiling of the wrappers appeared where the cans were in contact with the wood of the cases.

19. There was no rust, stain or discoloration on the parts of the cans not facing the wood of the cases.

20. The mould on the cases was not uniform, but some panels were mouldy whereas other panels immediately adjacent to them were not. The mould was due to excess moisture in the wood.

21. There was no damage to the beets, but the mould, rust, stain and soiling caused libellant damage to the extent of the cost of reconditioning the shipments because the consignee would not accept them until reconditioned.

22. As the result of the damage it was necessary for libellant to expend the sum of $4,129.21 in reconditioning its property.

23. The wooden cases involved in this libel were purchased by libellant from a manufacturer in Brewton, Alabama. They were constructed of gum veneer and may be described as "four in one boxes" and as wire strapped wooden cases. The manufacturer shipped these boxes in two carload lots, on November 14 and November 30, 1940, to the cannery at Ontario, New York, which stored them in their warehouse on the second floor of the cannery until they were packed and shipped in six carloads on November 30, December 2, 4, 12, 13 and 14, 1940, consigned to Calmar Steamship Corporation at Baltimore.

24. The only damage to the cans came from mould caused by excessive moisture inherent in the gum veneer of the wood from which the boxes were made and there was no wetting from external sources.

Discussion

As against the respondent carrier, Calmar Steamship Corporation, libellant takes the position that it has established a prima facie case: That having shown receipt of the merchandise in good order and delivery in damaged condition, the burden is on the carrier to prove that the cause of the damage was one for which it is not responsible, either by law or under exception in the contract of carriage; the carrier having failed to outweigh the burden by its evidence, it is liable. Clark v. Barnwell, 12 How. 272, 280, 53 U.S. 272, 280, 13 L.Ed. 985; The Propeller Niagara v. Cordes, 1858, 21 How. 7, 21, 62 U.S. 7, 21, 16 L.Ed. 41; Schnell v. The Vallescura, 1934, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373.

The carrier contends, however, that the damage claimed arose from a cause excepted in the bill of lading and therefore libellant cannot recover, having failed to prove negligence. The Isla De Panay, 2 Cir., 1923, 292 F. 723, affirmed 1925, 267 U. S. 260, 45 S.Ct. 269, 69 L.Ed. 603; The Malcolm Baxter, Jr., 1928, 277 U.S. 323, 334, 48 S.Ct. 516, 72 L.Ed. 901. It is asserted, on the contrary, that the damage arose out of the nature of the wooden cases, for which the carrier is not liable. 27 Stat. 445 (1893), 46 U.S.C.A. § 192.

A recital in the bill of lading that the shipment is in apparent good order and condition is only prima facie evidence of the fact. 27 Stat. 445 (1893), 46 U.S.C.A. § 193. As a receipt, it is not contractual nor does it constitute a warranty as between the immediate parties. Amerlux Steel Corporation v. Johnson Line, 9 Cir., 1929, 33 F.2d 70. Hence the carrier is free to prove the contrary. The Delaware, 1871, 14 Wall. 579, 81 U.S. 579, 601, 20 L. Ed. 779; Amerlux Steel Corporation v. Johnson Line, supra; The Georgian, S.D. Fla., 1933, 4 F.Supp. 718, affirmed, 5 Cir., 1935, 76 F.2d 550. Moreover such recital refers to external condition only. The Niel Maersk, 2 Cir., 1937, 91 F.2d 932, 933; Albers Bros. Milling Co....