Globe Solvents Co. v. The California, 9221.

• Decision Date: 21 April 1948
• Docket Number: No. 9221.,9221.
• Citation: 167 F.2d 859
• Parties: GLOBE SOLVENTS CO. v. THE CALIFORNIA.
• Court: U.S. Court of Appeals — Third Circuit

167 F.2d 859 (1948)

GLOBE SOLVENTS CO. v. THE CALIFORNIA.

No. 9221.

Circuit Court of Appeals, Third Circuit.

Argued February 18, 1947.

Reargued December 17, 1947.

Decided April 21, 1948.

Thomas E. Byrne, Jr., and Krusen, Evans & Shaw, all of Philadelphia, Pa., for appellant.

Edwyn H. Silberberg, Albert H. Friedman and Peter P. Zion, all of Philadelphia, Pa., for appellee.

Before BIGGS, GOODRICH, McLAUGHLIN, O'CONNELL, and KALODNER, Circuit Judges, and FOLLMER, District Judge.

FOLLMER, District Judge.

Appellee instituted a Libel in Rem in the Court below seeking to recover for damages to a cargo of lacquer solvent shipped from Philadelphia, Pennsylvania, to San Diego, California. The portion of the shipment here involved¹ consisted of seven hundred seven cases, each containing two five gallon cans. Appellee shipped the seven hundred seven cases of solvent, having first attached thereto a "Red Label" thus automatically classifying the same as inflammable. The Dock Receipt shows same received for shipment as a "Red Label" cargo.² Appellee made no special arrangements concerning, and exacted no specific requirements as to this shipment. It was unquestionably a deck cargo.³

The Appellant issued a non-negotiable bill of lading containing the provision "Loaded on Deck Owners Risk of Damage or Loss." Appellee concedes that "the placing of cargo on deck was in accordance with Federal regulations."⁴ and was not a negligent act per se. Moreover, by attaching the "Red Label" and making no special arrangements it assented to its being so carried.

The cases were stowed three high on both sides of the deck between the drums and the after bulkhead of the midship house on dunnage consisting of three layers of one inch dunnage boards. The first layer of dunnage was laid athwartships, spaced about ten inches apart so that in case there was water there it would run off.⁵ The second and third layers of dunnage were laid fore and aft solid. It covered the entire area on which the cases were stowed. The outboard side was protected by two by twelve inch planks, on end, three high, supported by four by four's and shored to the gunwale bars. On the inboard side one inch boards were used. This cribbing formed a protective wall "from the deck * * * as high as the cases."⁶ At Philadelphia, when stowed, this was covered all over with good tarpaulins with a layer of dunnage across them and the entire shipment lashed securely with chains. Two days later upon arriving at Norfolk, as an additional precaution, the chains and top dunnage were removed, twelve rolls of tar paper were procured and laid over the top of the tarpaulin, "first layer 'thwartships and the second layer laid fore and aft," and three layers of dunnage boards over the tar paper and the entire cargo was again securely lashed with chains. The Master also testified he had found this "the best protection for any cargo, either in cargo holds or on deck."⁷

The ship ran into some heavy weather in the Carribbean and in the Gulf of Tehuantepec and shipped considerable water on deck to a depth of two to seven inches.

Upon delivery it was found that a great many of the cans were leaking due to "pinholing" from rust and corrosion. This was not confined to cans in the bottom tier. There was evidence that some of the cases were stained. Appellee's surveyor expressed the opinion that the staining was due to salt water wetting. Of the total shipment, eight cases (sixteen cans) plus one can or a total of eighty-five gallons were found sound. Six hundred ninety-eight cases (six thousand nine hundred eighty gallons) plus one can required transfer to new cans. The loss in leakage and in transferring to new cans was six hundred thirty-two and one-half gallons with a salvaged gallonage of six thousand four hundred thirty-seven and one-half gallons; it does not appear how this loss was distributed as to leakage or transfer.

The court below made certain findings⁸ of which the most pertinent is "23. Respondent during the course of the voyage, despite knowledge that the seas washed the cargo, failed and neglected to provide dunnage of a height sufficient to raise cargo above the depth of the sea wash." On the basis of this finding the trial court concluded that there was negligence consisting of the failure of the carrier to provide adequate dunnage under the circumstances.⁹ This was the sole negligence upon which the judgment for Appellee was predicated. The court referred to the fact that the vessel, a flush deck ship, was "deep loaded," but there is nothing to show that this was improper.¹⁰

This shipment being between ports of the United States.¹¹ and, as we have already indicated, being properly on deck,¹² the Carriage of Goods by Sea Act, 46 U.S. C.A. § 1300 et seq., for both reasons, would ordinarily not apply. The appeal briefs of both parties so considered it.¹³ Only one side of the bill of lading had been printed in the appendix to the Appellant's brief.¹⁴ Because of a statement in Appellant's brief indicating an incorporation of the Carriage of Goods by Sea Act in the bill of lading by reference,¹⁵ it was agreed at the time of the hearing that the remaining portion of the exhibit might be submitted, which has been done. Clause 1 of the printed conditions¹⁶ does state that the Carriage of Goods by Sea Act, "shall be deemed to be incorporated herein." It provides further that "nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act." It also specifically provides that where the provisions govern, it shall include "before the goods are loaded on and after they are discharged from the vessel" and to that extent includes under the coverage of this Act¹⁷ what would have otherwise been within the provisions of the Harter Act.¹⁸ However, the Act as incorporated in the bill of lading specifically excepts on deck shipments.¹⁹ Furthermore, Clause 1 of the bill of lading with reference to the Act governing states: "except as may be otherwise specifically provided herein" (the bill of lading); such exception was made in the instant case by placing on the face of the bill of lading the terms "Loaded on Deck Owners Risk of Damage or Loss."

A provision for carriage on deck at shipper's risk of damage or loss is proper.²⁰ A greater risk of loss to goods "on deck" has always been recognized.²¹ Even as to goods below deck in the holds "perils of the sea" are specifically excepted by both the Harter Act²² and the Carriage of Goods by Sea Act.²³ But here we are concerned with a cargo of dangerous goods properly carried on deck with the consent of the owner at shipper's risk of damage or loss. The term "shipped on deck at shipper's risk" has been discussed in numerous decisions and is an exemption clause long employed in maritime contracts.²⁴ It is conceded by Appellant, and correctly so, that even though a shipper assumes the risk of cargo damage by the elements "it would be liable for damage to the goods of the Libellant which were, under the proofs in the case, caused by the negligence of the Respondent."²⁵

Of course the shipper accepted the risk of losses from carriage on deck only so far as they occurred under proper stowage. This is an element of seaworthiness²⁶ and proper dunnage is an element of proper stowage.²⁷ In The Idefjord, supra, bales of wool, goods particularly susceptible to damage by sea water wetting, were placed three feet above the deck on dunnage hatch covers and casks of orange peels, whereas there is nothing here to indicate, and Appellee does not contend, that cans of highly inflammable liquid could have been so placed. In fact such stowage has been held to constitute negligence.²⁸ As in the Idefjord case, supra, Appellant's witnesses testified that the cases were stowed in the customary manner and that it was good stowage. There was no evidence whatsoever to contradict this. The Appellant offered evidence of due diligence in caring for the cargo. Appellee offered no evidence whatsoever to show that the leakage and corrosion of cans was due to a want of diligence on the part of the carrier. The burden of proof under such circumstances is fully discussed by this Court in The Monte Iciar, 3 Cir., 167 F.2d 334, where it is pointed out that while exceptive provisions do not relieve a carrier from liability for negligence, the Libellant must adduce evidence to support such a finding of negligence.²⁹

The sole negligence found by the court below was a failure to stow on dunnage of at least eight to ten inches in height since the seas washed the deck to a depth of two to seven inches. There was no evidence whatsoever to sustain such a finding. But the court also found that "It would not require much of a sea to wash water on deck * * * to a depth of 2-7 inches,"³⁰ and on the theory thereby adopted it would have been negligence to have had less dunnage than would have raised the cargo above any sea which might reasonably be expected to wash the deck without rising to such violence as to be of a catastrophic nature.³¹ Neither is such a finding consistent with the fact that six hundred ninety-nine of seven hundred seven cases were involved, which would necessarily include all three tiers of an approximate height of three feet. In the absence of any affirmative proof that it constituted negligence, and with the direct and uncontradicted testimony adduced by Appellant that the stowage was proper, the conclusion reached below is a mere speculation which, as we have indicated, might lead to absurd results. Appellee has not contended that there was any other negligence.³²

We therefore find that the Appellee has failed to sustain the burden of proof incumbent upon it of establishing that the placing of this cargo on three inches of dunnage constituted negligence.

In view of our holding on this question, the other issue with respect to interest and costs...