THE MARGARET LYKES, 503.

• Decision Date: 10 August 1944
• Docket Number: No. 503.,503.
• Citation: 57 F. Supp. 466
• Parties: THE MARGARET LYKES. THE ULUA.
• Court: U.S. District Court — Eastern District of Louisiana

57 F. Supp. 466

THE MARGARET LYKES.

THE ULUA.

No. 503.

District Court, E. D. Louisiana, New Orleans Division.

July 31, 1944.

Findings of Fact, etc., August 10, 1944.

Deutsch, Kerrigan & Stiles, of New Orleans, La., for plaintiff.

Terriberry, Young, Rault and Carroll, of New Orleans, La., for defendant.

Phelps, Dunbar, Marks & Claverie, of New Orleans, La., for United Fruit Co.

CAILLOUET, District Judge.

Libelant Texas Petroleum Corporation brought this suit against the vessels SS Ulua and S.S. Margaret Lykes and their respective owners, United Fruit Company and Lykes Bros. Steamship Company, Inc., alleging that its certain described truck that it sought to ship via said vessels from New Orleans, La., to Barranquilla, Colombia, was damaged in transit with the proximate result that, by reason of the injury and necessary expenses occasioned thereby, libelant sustained damages to the aggregate amount of $1,500, for which it seeks indemnification.

A stipulation entered into by the parties makes it appear that on or about March 21, 1940, libelant, through its agents, delivered, in good order and condition, to the S.S. Ulua and United Fruit Company, its owner, on the Port of New Orleans docks, one shipment of goods comprising nine boxes of seismographic equipment and a "1940 Norman Herrington 1½ ton Ford 4-wheel drive conversion Kelly-type seismograph shot hole drill truck," transfer of custody having been effected by the medium of two deliveries, for each of which a dock receipt was thereupon issued in due course—one covering the truck and one box of parts loaded thereon, and the other covering the remaining eight boxes of parts. The first mentioned dock receipt specifically called for "on deck" stowage of the truck and accompanying one box of parts, but no mention of this appeared in the subsequently issued bill of lading, covering the entire shipment of nine boxes and one truck. This bill of lading was never negotiated by the libelant, which was sole owner of all interest therein, and it is agreed that all of its terms and conditions are made part of the stipulation.

In its originally prepared form the bill of lading specifically provided, in part, as follows:

"21. Unless a higher value be stated herein, the value of the Goods does not exceed $100.00 per package, and the freight thereon has been adjusted on such valuation, and no oral declaration or agreement shall be evidence of a different valuation. In computing any liability of the Carrier in respect of the Goods, no value shall be placed thereon higher than the invoice cost (including freight prepaid hereunder) not exceeding $100.00 per package (or such other value as may be stated herein), nor shall the Carrier be held liable for any damages for delay exceeding twenty per cent. of said cost not exceeding said value nor for any profits or increase of price or value over such cost not exceeding said value, nor for any special or consequential damage and the Carrier shall always have the option of replacing any lost or damaged Goods."

Imprinted on the face of said bill of lading there appeared, however these controlling additional provisions, to-wit:

"This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its right or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this bill of lading is repugnant to said Act to any extent, such term shall be void to that extent, but no further."

Furthermore, under Section 4, subsection 5, of said Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315, it is provided as follows, viz.:

"Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. * * *"

The freight charges agreed to and thereafter actually paid by the libelant were based on the regular rate called for by the United Fruit Company's tariffs, duly filed and approved, and were not calculated at such rate as would have been charged by the carrier if libelant had declared a valuation in excess of $500 per package, which it did not.

In due course the S.S. Ulua carried the whole of said shipment (all under deck except the truck) from New Orleans to Cristobal, Canal Zone, to then and there deliver the same for transshipment and carriage from Cristobal to Barranquilla, Colombia, via the S.S. Margaret Lykes of Lykes Bros. Steamship Company, Inc., as stipulated for in the bill of lading.

Delivery, in good order and condition, of all goods comprising the shipment took place at Cristobal and the nine boxes of parts were thereupon transshipped and carried therefrom, in and by the S.S. Margaret Lykes, to Barranquilla, where delivery of said nine boxes was duly effected in like good order and condition; and libelant's claim of damages, therefore, refers to none of said nine boxes of parts.

However, whilst the Lykes Bros. Steamship Company, Inc., was attempting to load libelant's truck (which was then in said company's exclusive care and custody) onto the S.S. Margaret Lykes at Cristobal, for transshipment and carriage to Barranquilla, substantial damage was done to said truck, which was thereupon transshipped to its final destination, at a later date, in the S.S. Velma Lqkes; and delivery was effected by said carrier at Barranquilla, with the truck in no different damaged condition than it was when it was loaded for carriage, at Cristobal.

It is stipulated, particularly, that the damage sustained by the truck in no wise resulted from its having been stowed on deck and that no liability arose from the fact that it was the S.S. Velma Lykes, rather than the S.S. Margaret Lykes named in the bill of lading, that carried the damaged truck from Cristobal to Barranquilla.

Lykes Bros. Steamship Company, Inc., while admitting responsibility and its liability in damages for the aforerecited physical damaging of the libelant's truck, nevertheless insists that libelant should be indemnified in no greater principal sum than $500, although it is stipulated that $1500 does represent the physical damage sustained by the truck and all expenses connected with or relating thereto.

In relation to the amount of damages actually due, it is stipulated by the parties that the question of interest and costs shall be determined as if either or both of the shipping companies and/or the proctors of either or both of the S.S. Margaret Lykes and the S.S. Ulua did, as of the date of such stipulation, i. e., January 31, 1944, formally tender to the libelant the sum of $500, "plus interest, if any, and all costs," and such tender was formally declined by libelant.

Libelant first contends that the carrying of the damaged truck on deck after issuance of a clean bill of lading constituted "deviation," which displaced the bill of lading contract and made each vessel liable as insurer; and that, consequently, the formerly existing limitation of liability to $500 per "package" or "customary freight unit" has been abrogated.

The dock receipt covering the subsequently damaged truck specifically called for on-deck stowage and furthermore expressly stipulated as follows, viz.: "The United Fruit Company's regular bill of lading in use by it for similar shipments (upon the basis of which freight rates are fixed) shall be issued for said goods to the above named shippers * * *. If the value of any of the goods exceeds $500.00 per package, a rate of freight, based thereon must be arranged before tender of the goods for shipment and the value of the goods be declared on delivery at the dock and inserted herein, failing which, the goods shall be conclusively deemed received subject to the bill of lading limitation of value and liability to the invoice cost not exceeding $500.00 per package."

It is true that, in attempted compliance with the dock receipt requirement that there should duly issue to libelant the carrier's regular bill of lading for similar shipments such as the tendered one, which involved the stipulated stowage on deck of libelant's truck, a clean bill of lading covering nine boxes of parts and the one truck was actually issued. The bill's failure to specify that the truck was to be carried on deck, as had been so previously stipulated for in the dock receipt, made libelant immediately cognizant of the fact that it was erroneous to that extent,—not that the carrier had breached its contract of carriage because of the truck's stowage on deck, rather than under with the nine boxes of parts.

Undoubtedly, it is well settled that, ordinarily, the stowage of cargo on deck, when accepted for shipment under a clean bill of lading, operates a technical deviation and renders the vessel liable "as for a deviation," if the cargo at issue sustains loss or damage by reason of its having been so stowed on, rather than under, the deck. But such is not the case when the shipper holding a clean bill of lading nevertheless consents to and approves of the stowage on deck. The Delaware, 1872, 14 Wall. 579, 605, 81 U.S. 579, 605, 20 L.Ed. 779, 784.

In the case of The Southlands, D.C., 1928, 27 F.2d 1010, decided by then District Judge Joseph C. Hutcheson, Jr., and, on appeal to the Circuit Court of Appeals, Fifth Circuit, 1930, 37 F.2d 474, the stowage on deck, despite issuance of a clean bill of lading, was, admittedly, without the knowledge of the shipper. A similar situation obtained in the case of St. Johns N. F. Shipping...