SL Shepard & Co. v. Agwilines, Inc.
| Decision Date | 13 June 1941 |
| Docket Number | No. 160.,160. |
| Citation | 39 F. Supp. 528 |
| Court | U.S. District Court — District of South Carolina |
| Parties | S. L. SHEPARD & CO. v. AGWILINES, Inc. |
S. L. Einhorn, of Philadelphia, Pa., and Jefferies & McLeod, of Walterboro, S. C., for plaintiffs.
A. T. Smythe, of Charleston, S. C., for defendant.
This case is based upon loss suffered by the plaintiffs, who are partners, by reason of deterioration in a shipment of four thousand, two hundred and eighty-six (4,286) crates of watermelons made by the plaintiffs on one of the vessels of the defendant from Charleston, South Carolina, to New York City, on July 8, 1939. Plaintiffs allege in their amended complaint that the defendant orally represented and agreed that if the plaintiffs allowed it to transport the watermelons to the New York market, that the watermelons would be placed in pre-cooled compartments and carefully handled and refrigerated until delivered at destination, and that as a consequence of and in compliance with defendant's representation and agreements, the melons were delivered by the plaintiffs to the defendant for carriage. They further allege that the defendant failed to use reasonable care, due diligence and exertion in transporting the shipment, but that it negligently and wrongfully handled the melons so that upon their arrival in New York, they had been bumped, bruised, battered, cut, gouged and broken, and were decayed and suffering from rot, that the melons were mishandled and wrongfully handled on the Charleston dock by the defendant, its agents and servants, were negligently exposed to rain and sun and roughly handled and treated by defendant's agents and servants, were placed in the hold of defendant's vessel, which had not been pre-cooled, as the defendant had agreed to do, were negligently and carelessly stacked and packed in the said vessel, that the hold of the vessel was not refrigerated in transit, as the defendant had agreed to do, and as it knew or should have known was necessary to keep the melons in good condition, that the part of the vessel in which the melons were stored and transported was kept at an unreasonably high temperature, which defendant knew or should have known would cause said watermelons to decay and rot, and that as a result of the defendant's wrongful handling, the melons arrived in New York in a generally damaged and decayed condition, and were there further negligently mishandled by the defendant's agents and servants in unloading.
The defendant in its answer set up among other defenses: (a) That any arrangement between the defendant and the plaintiffs for refrigeration or pre-cooling in connection with the shipment of melons was without charge by the defendant, gratuitous, without consideration and, therefore, not enforceable. (b) That any such arrangement between the defendant and the plaintiffs was not in accordance with the published tariffs applicable to such shipments and the bills of lading issued by the defendant to the plaintiffs covering the said shipment, constituted a gratuitous departure from the terms of said bills of lading and said tariffs and is, therefore, unenforceable. (c) That any lack of condition in the melons upon their arrival in New York was due to inherent defects in them at the time of their delivery to the defendant, and to the fact that they were infected with certain plant diseases and to their having been too ripe for shipment and to their not having received proper and adequate disease prevention treatment and to the fact that some of the melons had been picked several days before their delivery at Charleston, and had been exposed to the summer heat during that time, and were delivered to defendant at Charleston three days before the vessel was scheduled to sail, and remained on defendant's dock for said period without refrigeration, defendant having no refrigeration facilities on its dock, all of which was well known to plaintiffs at the time of such delivery.
At the conclusion of all the evidence defendant moved for a directed verdict upon the following grounds:
1. There is no substantial evidence to support recovery by the plaintiffs.
2. The evidence is so overwhelmingly against the plaintiffs as to leave no room to doubt what the fact is.
3. Under the Harter Act, 46 U.S.C.A. § 190 et seq., if the defendant in this case exercised due diligence to make its vessel in all respects seaworthy and properly manned, equipped and supplied, the defendant is not responsible for loss resulting from inherent defect, quality or vice of the thing carried, or from any act or omission of the shipper or owner of the goods.
4. There is no charge in the complaint in this case nor in the testimony that the defendant did not use due diligence in the particulars referred to above, and that question is, therefore, not in the case.
5. The uncontradicted testimony under the certificates of Caldwell and Clark, and under the expert testimony of Nusbaum is that these melons were infected with stem end rot and anthracnose before delivery to defendant since there was no way in which they could have contracted either of these diseases after such delivery. The inspection certificates of the inspectors in New York show that certain of the melons were infected with anthracnose and stem end rot upon arrival in New York, and that such of the melons as were not so affected were sound. There is total lack of proof as to any broken or cracked melons or as to there being anything wrong with the melons except these diseases.
Upon the opening of plaintiffs' case, and before the bills of lading were offered in evidence, one of the plaintiffs undertook to testify as to an oral agreement between her and George J. Horner, one of the officials of the defendant, to the effect that the defendant had agreed to pre-cool space on the vessel in which to put the melons and to transport them under refrigeration in accordance with the allegations of the complaint. I admitted the testimony tentatively, but after further argument, I concluded that the testimony should have been excluded and instructed the jury to disregard it. My reason for reaching this conclusion is that by the Act of Congress known as the Shipping Act, 46 U.S. C.A. § 815, it is made unlawful for a common carrier by water subject to the Act (and the defendant is subject to that Act) to make or give any undue or unreasonable preference or advantage to any particular person, locality or description of traffic in any respect whatsoever or to subject any particular person, locality or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. It has further been held that the Shipping Act is a comprehensive measure bearing a relation to common carriers by water substantially the same as that borne by the Interstate Commerce Act to interstate common carriers by land, and that the settled construction in respect of the earlier Act must be applied to the later one. United States Navigation Co. v. Cunard S. S. Co., 284 U.S. 474, at page 481, 52 S.Ct. 247, 76 L.Ed. 408. It has been held in numerous cases brought under the Shipping Act and under the Interstate Commerce Act that any special arrangement between a common carrier and a shipper calling for service other than that provided for in the published tariffs and bills of lading is unlawful and not enforceable, as violative of the express provisions of these statutes. The cases in support of this proposition are too numerous for comprehensive citation, but among them are the following: Swayne & Hoyt v. United States, 300 U.S. 297, at page 303, 57 S.Ct. 478, 81 L.Ed. 659; Armour Packing Co. v. United States, 209 U. S. 56, at page 72, 28 S.Ct. 428, 52 L.Ed. 681; Chicago & A. R. Co. v. Kirby, 225 U.S. 155, at page 162, et seq., 32 S.Ct. 648, 56 L.Ed. 1033, Ann.Cas.1914A, 501; Atchison, T. & S. F. Co. v. Robinson, 233 U.S. 173, at page 177, 34 S.Ct. 556, 58 L.Ed. 901; Southern Railway Co. v. Prescott, 240 U.S. 632, at pages 637, 638, 36 S.Ct. 469, 60 L.Ed. 836; Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190, at page 197, 36 S.Ct. 541, 60 L.Ed. 948; Missouri, K. & T. R. Co. v. Ward, 244 U.S. 383, at page 388, 37 S.Ct. 617, 61 L.Ed. 1213; Davis v. Cornwell, 264 U.S. 560, 44 S.Ct. 410, 68 L.Ed. 848; Davis v. Henderson, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182; Chesapeake & O. R. R. Co. v. Westinghouse, Church, Kerr & Co., 270 U.S. 260, 46 S.Ct. 220, 70 L.Ed. 576, and many other cases.
The testimony was also, in my opinion, inadmissible in view of defendant's objection that testimony as to such an oral agreement would tend to alter the terms of the bills of lading issued by the defendant to the plaintiffs and constituting the contract between the parties. This proposition is also sound law and is supported inter alia by the following authorities: South Carolina Asparagus Growers' Ass'n v. Southern Railway Co., 4 Cir., 46 F.2d 452; The Arpillao, 2 Cir., 270 F. 426; John Vittuci Co. v. Canadial Pac. Railway, D.C.Washington, 238 F. 1005; Vanderbilt v. Ocean Steamship Co., 2 Cir., 215 F. 886; Inman & Co. v. S. A. L. Ry. Co., C.C.Georgia, 159 F. 960, and other cases. The allegations of plaintiffs' amended complaint are that the alleged contract was oral and the undisputed evidence was that nothing had been paid or agreed to be paid for the extra service, that the shipment had moved under certain specified tariffs which were introduced in evidence and which contained no provision as to refrigeration, that the defendant company had no published tariffs providing for refrigerating shipments from Charleston to New York, and the bills of lading which were put in evidence contained no provision for refrigeration.
Plaintiffs relied upon the Act of Congress known as the Harter Act, 46 U.S.C.A. §§ 190 and 192, and took the position that the defendant, under those sections, could not stipulate against liability for loss arising by reason of negligence, fault or failure...
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