THE MONTE ICIAR, 69 of 1945.

• Decision Date: 15 August 1946
• Docket Number: No. 69 of 1945.,69 of 1945.
• Citation: 67 F. Supp. 201
• Parties: THE MONTE ICIAR
• Court: U.S. District Court — Western District of Pennsylvania

67 F. Supp. 201

THE MONTE ICIAR

No. 69 of 1945.

District Court, E. D. Pennsylvania.

August 15, 1946.

George E. Beechwood, of Conlen, LaBrum & Beechwood, all of Philadelphia, Pa., for libellant.

Harrison G. Kildare, of Rawle & Henderson, all of Philadelphia, Pa., for respondents.

BARD, District Judge.

This is a libel for cargo loss against the steamship "Monte Iciar" and her owners, Naviera Aznar S. A. On the basis of the pleadings and the testimony, I make the following special

Findings of Fact.

1. At all times involved in this case, the libellant was, and now is, a corporation duly organized and existing under the laws of the District of Columbia, with its principal place of business at 2410 Eighth Place, N.E., Washington, D. C.

2. Respondent, Naviera Aznar S. A., was at all times involved in this case, and still is, a corporation duly organized and existing under the laws of Spain, owning and operating as a common carrier several steam vessels engaged in the carriage of cargo upon the high seas. Among the vessels owned and operated by respondent is the steamship "Monte Iciar," which is within the jurisdiction of this court.

3. During the month of February, 1944, A. Deleyto delivered to respondent Naviera Aznar S. A. at the port of Cadiz, Spain, a shipment of seventy wooden barrels containing dry sherry wine consigned to "Order — Notify: Messrs. Park Benziger & Co. Inc. — 24 State Street — New York."

4. On February 28, 1944, respondent's duly authorized agent, the captain of the "Monte Iciar," issued a bill of lading covering this shipment of wine, acknowledging receipt of seventy barrels of wine, gross weight 48,349 kilograms, net weight 41,774 kilograms. The bill of lading provided for shipment to Philadelphia, Pennsylvania. The face of the bill of lading bore a stamped notation, "Not Responsible for Leakage, Breakage or Spigoting." This notation had been applied prior to the time that the captain of the "Monte Iciar" signed the document.

5. In February 1944 the United States Consul at Seville, Spain, issued a Consular Invoice of Merchandise covering this shipment, which stated that the shipment consisted of 11,200 gallons.

6. Libellant purchased this shipment from Park, Benziger & Co., Inc. prior to the date of shipment of the wine.

7. The barrels were the usual type of container used for transporting wine. They were not new, but appeared to be in sound condition when loaded aboard the vessel. At the time of loading there was no evidence of loss of contents from the barrels.

8. Libellant's shipment of seventy barrels comprised a portion of a total of 391 barrels of wine of three different sizes, which were stowed in number 3 and number 4 'tween decks. There is no evidence as to the exact location of libellant's shipment within this general area. A floor of dunnage wood was laid over the entire 'tween deck, with the exception of the portions over the wooden covers above the opening to the hold. The barrels were stowed head up in a single tier, except for those in the square of number 3 hatch, which were laid in three tiers, fore and aft, arranged bung-up in bilge and cantline fashion, extending to the top of the hatch coaming. A layer of dunnage wood was placed on top of the single tier of barrels stowed head up, with three to five tiers of cases of brandy placed on top of the dunnage wood. The barrels were protected from the skin of the ship by a wall of dunnage wood. The portion of the shipment placed in the square of number 3 hatch, which was arranged in bilge and cantline fashion, was well braced with chocks and quoins.

9. The 'tween decks of the "Monte Iciar" are approximately eight feet high, except under the hatch cover, where the height is approximately eleven feet. Although the recommended practice of stowing barrels, where multiple tiering is involved, is bilge and cantline, it is regular and customary to stow barrels in the 'tween decks of Spanish vessels in a single tier, head up, because of the low ceiling in 'tween decks.

10. The "Monte Iciar" arrived at Philadelphia, Pennsylvania, on April 9, 1944. She was berthed at Pier 55 South on April 10, 1944, and discharged the cargo in number 3 and number 4 'tween decks on April 12 and 13, 1944. The barrels were discharged from the vessel by the ship's tackle in the customary and accepted manner.

11. Inspection of number 3 and number 4 'tween decks prior to discharge did not reveal any indication that the cargo therein had shifted during the course of the voyage. After the cargo had been discharged, the dunnage wood and the floor of number 3 and number 4 'tween decks were found to be clean and dry.

12. None of the barrels was observed to be leaking during discharge of the cargo.

13. A day or two after discharge, when the entire shipment of barrels was on the pier, the ship's Second Officer observed one barrel leaking, and thereafter the Captain observed "some" barrels leaking, from the joints of the barrel staves. The observations of the Captain and the Second Officer were made with respect to the entire cargo of barrels in general, and neither identified the leaking barrels as ones which formed a part of libellant's shipment.

14. When libellant's shipment arrived at Philadelphia, a Customs in Bond Transportation Application was filed with and accepted by the Collector of Customs at Philadelphia for transportation of the shipment in bond to the Collector of Customs at Baltimore, Maryland, with libellant as consignee. This was done by Charles Kurz Co., libellant's agent. The Collector of Customs permitted the wine to be shipped under an "In Transit" bond to Baltimore, Maryland, where, according to United States Customs regulations, the actual contents of the barrels were to be measured or "gauged," and appropriate duties thereafter assessed.

15. On April 17, 1944, the Customs authorities at Philadelphia gauged the contents of seven barrels forming part of libellant's shipment on the pier. According to the practice of the Collector of Customs, gaugeable goods under an "In Transit" bond are not gauged on the pier unless the containers have been repaired or recoopered, or unless there is reason to believe that loss of contents has occurred. In such cases, they are gauged regardless of whether or not there has been actual loss of contents. This Customs gauging shows actual contents only, and does not purport to show loss of contents.

16. Libellant's shipment of seventy barrels was subsequently transported via Pennsylvania Railroad to Baltimore, Maryland, under a bill of lading issued on April 18, 1944. The bill of lading contained a notation that seven barrels had been recoopered. The other sixty-three barrels were in good condition when they were delivered to the railroad. The recoopering was performed by the agents of the Pennsylvania Railroad.

17. Libellant's cargo surveyor examined the shipment on May 6, 1944, when the barrels were aboard three Pennsylvania Railroad freight cars at Baltimore. It was found that several of the barrels in one car were leaking so badly that wine was flowing from the car door. Inspection revealed that two barrels had loose hoops, one had a "buggered" stave, and four were leaking at the bungs and heads.

18. The leaking barrels were all within one general location in the same freight car, stowed in adjacent rows. No leakage was noted in the other two cars.

19. The agents of the Collector of Customs at Baltimore gauged libellant's entire shipment, and found that actual contents amounted to 10,959.3 gallons of wine.

Discussion.

This case is before the court on the question of liability only, the parties having agreed to submit the question of damages, if any, to a commissioner.

Before proceeding with a discussion of the merits of the case, it is appropriate to deal with respondent's contention that the present libellant has not been established as a proper party in interest. Libellant, by deposition, adduced the testimony of Mr. J. P. Benziger, President of Park, Benziger & Co., Inc., the company which appeared as consignee of the shipment on the bill of lading issued by respondent. Mr. Benziger testified that Park, Benziger & Co., Inc., had actually sold the shipment to libellant before the wine was shipped from Spain; that he remembered the transaction, because he had sold the wine himself; and he identified an invoice to libellant dated April 26, 1944, covering the shipment, which indicated that the wine was sold to libellant F.O.B. Cadiz, Spain. Mr. Benziger explained that libellant was not invoiced prior to April 26, 1944, because Park, Benziger & Co., Inc. had to wait until that date, when the gallonage list was received from A. Deleyto, the supplier, in order to prepare the invoice properly.

In Hickman, Williams & Co., Inc., v. Murray Transportation Co., D.C.S.D.N.Y., 31 F.Supp. 820, 822, a libel for cargo loss, libellant depended entirely upon the testimony of one of its own officers to prove ownership of the cargo, which was consigned to a third party on the bill of lading. In denying respondent's motion to strike this testimony, the court said:

"The witness was an officer of the company. He was familiar with the transactions, which were mainly oral. I think it was entirely proper for him to state that his company was the owner of the cargo. In this regard he was testifying to a simple fact, one within his knowledge. The witness knew the facts, and he was qualified to answer the question as to ownership * * *

"It might be argued from the bill of lading, that the Lukens Steel Company was presumptively the owner of the cargo inasmuch as it was consigned to them. That being only a rebuttable presumption, it has been answered by the testimony of the witness * * *."

In the foregoing case, the court admitted the testimony of one of libellant's own officers to rebut the presumption of ownership in the consignee of the bill of lading. Certainly, then, in the instant case, it is no less...