DELAWARE STEEL COMPANY v. Calmar Steamship Corporation

• Decision Date: 08 May 1967
• Docket Number: No. 16185.,16185.
• Citation: 378 F.2d 386
• Parties: DELAWARE STEEL COMPANY, Appellant, v. CALMAR STEAMSHIP CORPORATION and SS SEAMAR, Her Engines, Boilers, Tackle, Apparel, etc.
• Court: U.S. Court of Appeals — Third Circuit

378 F.2d 386 (1967)

DELAWARE STEEL COMPANY, Appellant, v. CALMAR STEAMSHIP CORPORATION and SS SEAMAR, Her Engines, Boilers, Tackle, Apparel, etc.

No. 16185.

United States Court of Appeals Third Circuit.

Argued February 9, 1967.

Decided May 8, 1967.

Joseph G. Manta, Philadelphia, Pa. (Ronald C. Scott, LaBrum & Doak, Philadelphia, Pa., on the brief), for appellant.

James F. Young, Philadelphia, Pa. (Krusen, Evans & Byrne, Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, HASTIE and FORMAN, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

The libellant, Delaware Steel Co., shipped a quantity of steel from Philadelphia to Long Beach, California, via the respondent's steamship Seamar. Claiming that this shipment had been damaged in transit, Delaware instituted this libel against the ocean carrier. The defense was failure of the libellant to comply with clause 22 of the bill of lading, which reads in part as follows:

"22. Written notice of claim for loss of damage must be given to this carrier or its agent at the port of discharge, or to the delivering carrier or its agent at the port of ultimate destination, before removal of the goods, except in case of concealed loss or damage, in which case written notice of claim must be so given within 10 days after removal of the goods. All claims for loss or damage or delay in delivery must be presented in writing to the carrier liable therefor or his agent at the port of discharge or at the port of ultimate destination within 15 days after delivery of the cargo, and unless such claim is presented as above provided, it shall be deemed to have been abandoned and no suit shall thereafter be maintainable to recover the same. * * *"

Because it appeared and was conceded that the libellant had not complied literally with these requirements, the trial court granted a motion by the respondent carrier for summary judgment. The libellant has appealed claiming that the record discloses such substantial compliance with the requirements of notice and claim that this suit should not be barred under clause 22.

More particularly, the respondent has asserted and the libellant has admitted that "libellant through its agents, Carey Trucking Co., took delivery of the entire cargo of 12 lifts of rolled steel on or before January 30, 1964". The respondent admits that "Carey Trucking Company, its agents or employees, made written exceptions to the condition of libellant's cargo on the respondents' delivery record * * * with respect to ten bundles on January 21, 1964 and with respect to the remaining two bundles on January 30, 1964". The respondent also admits that its surveyor examined libellant's cargo "prior to the end of January, 1964"; that it "was aware of damage to Libellant's cargo at or before the time of its discharge from SS Seamar", and that "Libellant's cargo surveyor advised Respondent's cargo surveyor within ten (10) days after unloading of the damaged cargo from SS Seamar of the damage and invited participation by Respondent's surveyor in a survey of the damage". In addition, answering the respondent's motion for summary judgment, the libellant has averred that "within ten days after the unloading of libellant's cargo, libellant's surveyor orally advised respondent that a claim for the damage would be made". However, in the same pleading the libellant admitted "that libellant will be unable to prove a writing sent within fifteen days of delivery of the cargo making claim for the damage". Finally, the parties agree that written claim was submitted on February 26, 1964, 26 days after completion of the delivery of the damaged cargo.

Thus, chronologically, we have (1) the carrier's knowledge of cargo damage at or before the time of delivery, (2) the shipper's written exceptions to the condition of the cargo at the time of delivery, (3) the libellant's oral notice of claim¹ and invitation to the carrier to participate in a survey during the course of and within ten days after the beginning of delivery, (4) actual examination of the damaged cargo by the carrier's surveyor, and (5) written notice of claim twenty-six days after delivery was completed.

Early decisions of this court strictly enforced the then familiar and approved provisions of bills of lading that the shipper or consignee must give notice — not necessarily in writing — of his damage claim before removing his goods from the dock. The St. Hubert, 3d Cir., 1901, 107 F. 727, cert. denied 181 U.S. 621, 21 S.Ct. 925, 45 L.Ed. 1032; The Westminster, 3d Cir., 1904, 127 F. 680, cert. denied 194 U.S. 637, 24 S.Ct. 860, 48 L.Ed. 1161. Accord, Anchor Line v. Jackson, 2d Cir., 1925, 9...