Pioneer Import Corporation v. The Lafcomo

• Decision Date: 31 January 1944
• Docket Number: No. 102.,102.
• Citation: 138 F.2d 907
• Parties: PIONEER IMPORT CORPORATION v. THE LAFCOMO et al.
• Court: U.S. Court of Appeals — Second Circuit

138 F.2d 907 (1943)

PIONEER IMPORT CORPORATION v. THE LAFCOMO et al.

No. 102.

Circuit Court of Appeals, Second Circuit.

November 16, 1943.

Writ of Certiorari Denied January 31, 1944.

Arthur M. Boal, of New York City (Tompkins, Boal & Tompkins, of New York City, on the brief), for claimant-appellant.

John W. Crandall, of New York City (Hunt, Hill & Betts, of New York City, on the brief), for respondent-appellant.

George C. Sprague, of New York City (Iselin, Riggs, Ferris & Mygatt, Morris Douw Ferris, and H. C. Archibald, all of New York City, on the brief), for libellant-appellee.

Before SWAN, CLARK, and FRANK, Circuit Judges.

Writ of Certiorari Denied January 31, 1944. See 64 S.Ct. 523.

CLARK, Circuit Judge.

This is a libel in rem against the S. S. "Lafcomo," owned by claimant, and in personam against respondent, operator of the vessel under a time charter, for damages to a shipment of lily of the valley pips due to their negligent stowage without tarpaulin covering on the foredeck of the vessel during its passage from Rotterdam to New York in November-December, 1939. The court below found for libellant.

Lily of the valley pips, or rootstocks, before the present war were commonly grown in Germany, and, being dug in the fall, were shipped under refrigeration for commercial forcing in this country during the winter. This shipment was originally booked for carriage in refrigerated space of a vessel of the Holland-American line; but the booking was cancelled because of an impending British embargo on goods of German origin. Then libellant arranged for shipment by respondent with the notation on the bill of lading, "Shipped on deck at shipper's risk." When the shipment arrived at New York the pips were so badly damaged by sea water that they were worthless commercially. Respondent and claimant contend that libellant by providing for ondeck stowage had assumed the risk of damage to the pips through exposure to the elements; respondent asserts further that at most the damages should be divided because libellant assumed at least part of the risk; and each claim that in any event the other should bear the burden of the loss. The District Court, however, resolved the most seriously disputed issue of fact— whether libellant's original demand for the covering of the pips with tarpaulins was withdrawn — in favor of libellant, and found negligence in the stowage because the boxes of pips were not covered by tarpaulins and because they were placed in the wings of the hatches, rather than on the hatch covers, where they would have been above the water on deck and would have allowed the sea to drain off through freeing ports, mooring rings and scuppers. It therefore found both claimant and respondent liable to libellant for the loss, but held that as between the two, respondent must bear the entire loss.

The well-reasoned opinion of Leibell, J., below, 49 F.Supp. 559, leaves little for us to add. There is ample evidence to sustain his findings. Upon the finding that there was no agreement by the shipper that the deck cargo need not be covered, the vessel is liable, as well as the common carrier. Salt water is obviously harmful to plant life, and the finding of negligence in stowage was justified. The shipper accepted the risk of losses from carriage on deck only so far as they occurred under...