THE SOUTHLANDS.
| Decision Date | 14 August 1928 |
| Docket Number | No. 122.,122. |
| Citation | 27 F.2d 1010 |
| Parties | THE SOUTHLANDS. |
| Court | U.S. District Court — Southern District of Texas |
Carl Stearns and Fulbright, Crooker & Freeman, all of Houston, Tex., for libelant.
W. E. Cranford and Armstrong & Cranford, all of Galveston, Tex., for respondent.
This is a suit for loss of cargo of lumber stowed on deck, as the result of being lost overboard and/or jettisoned in a storm.
The shipment being upon a clean bill of lading, it is conceded that stowage on deck amounts to a deviation (see The Delaware, 14 Wall. 81 U. S. 579, 20 L. Ed. 779; The St. Johns N. F. C. C. A. 280 F. 553; see, also, same case in Supreme Court, 263 U. S. 119, 44 S. Ct. 30, 68 L. Ed. 201, 1923 A. M. C. 1132), unless respondent can prove a custom of the port to so ship. The Delaware, supra; Rosenberg Bros. & Co. v. United States Ship. Board E. F. Corp. D. C. 7 F. 2d 893, 1925 A. M. C. 1427; Id. C. C. A. 12 F.2d 721, 1926 A. M. C. 855; The Gualala C. C. A. 178 F. 402. I have carefully examined the evidence in the light of the authorities, and I find that the custom alleged and relied upon did not exist.
Respondent contends further that there was an accord and satisfaction growing out of the assertion by the Kirby Lumber Company and payment by the respondent of a claim for the amount of deck-stowed lumber, not jettisoned or washed overboard, but converted by the agent of the ship at destination. To this claim libelant replies (1) that there was no settlement of the claim in controversy; and (2) if there was, the libelant was powerless to effect the settlement, since, as plainly appears in the correspondence, libelant had been paid by its cargo underwriters for the lumber which was jettisoned and washed overboard, and, the insurance companies having a right in law and under their contracts to subrogation to the claim of libelant against the carrier, libelant was without power to settle the claim, if it had attempted to do so.
I agree with libelant that the claim now in suit was never submitted for settlement or compromise, and that while the form of the release presented to, but not signed by, the Kirby Lumber Company, covered all claims arising out of the cargo stowed on deck, there was never any contention between libelant and respondent as to the claim now in suit, and it would be a giving effect to form, rather than substance, to say that the parties had under discussion, and made a compromise of, the claim in suit.
In addition, I...
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Holm v. Hansen
... ... Iowa State Tray. Men's Assn., supra; Barr v. Clinton Bridge Works, 179 Iowa 702, 161 N.W. 695 (1917); Walston v. Calikins, 119 Iowa 150, 93 N.W. 49 (1903); Louis Schlesinger Co. v. Kresge Foundation, 388 F.2d 208 (3 Cir. 1968); Blockhead, Inc. v. Plastic Forming Co., Inc., supra; The Southlands, 27 F.2d 1010 (S.D.Tex.1928), aff'd 37 F.2d 474 (5 Cir. 1930); Garland v. Linville Improvement Co., 184 N.C. 551, 115 S.E. 164 (1922); Reinke v. West, 303 S.W.2d 419 (Tex.Civ.App.1957); Hicks Pub. Co. v. Wisconsin Cent. Ry. Co., 138 Wis. 584, 120 N.W. 512 (1909) ... The facts found ... ...
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THE MARGARET LYKES, 503.
... ... 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 ... ...