UNITED STATES S., R. & M. CO. v. Waterman SS Corp.

• Decision Date: 20 September 1945
• Docket Number: No. 571.,571.
• Citation: 62 F. Supp. 511
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: UNITED STATES SMELTING, REFINING & MINING CO. v. WATERMAN S. S. CORPORATION.

62 F. Supp. 511

UNITED STATES SMELTING, REFINING & MINING CO. v. WATERMAN S. S. CORPORATION.

No. 571.

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

September 20, 1945.

Bigham, Englar, Jones & Houston, of New York City, and Dart & Dart, of New Orleans, La., for plaintiff.

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

CAILLOUET, District Judge.

The libelant alleges, substantially, that there was lost and damaged, respectively, parts of libellant's 1052 tons of structural steel that were delivered, for its account, to respondent at the Port of Baltimore, Maryland, for loading on its SS "West Kyska" and carriage by sea thereon to Seattle, Washington, to be there discharged and thence transshipped to Nome, Alaska, by other carrier than libelant; that such structural steel on delivery to respondent at the vessel's side, and also, inferentially, on loading and subsequent departure from port, was all in good order and condition; that, however, said shipment which was loaded and carried, 771 tons on deck and 281 tons under deck, was discharged at Seattle "seriously injured and damaged, and short, namely, among others, 13 short #97 to 101 incl., #111 to 118 inc.; 70 damaged, various bends, #1 to 81 inc., #92 to 191 inc., #227 to 242 inc."

To the original libel was annexed, as part thereof, the straight bill of lading. It specifically provided (1) that the terms "Owner's Risk" and "O. R." meant that the carrier should not be liable for loss or damage "unless shown to have resulted from some negligence or default of carrier against liability for which it is precluded by law from contracting"; (2) goods carried on deck were at "owner's risk"; and (3) as follows, to-wit:

"This bill of lading shall be deemed to incorporate and shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, and nothing herein contained shall be deemed a surrender by Carrier of any of the rights or immunities or an increase of any of its responsibilities or liabilities thereunder; nor shall Carrier be deemed to have warranted the seaworthiness of the Vessel. The provisions stated in said Act shall (except as may be otherwise provided herein) govern before the Goods are loaded on and after they are discharged from the ship and throughout the entire time that they are in the custody of the Carrier. In respect of Goods carried on deck and stated herein to be so carried, all risks of loss or damage by perils incident to such carriage shall be borne by Cargo Owner but in all other respects the custody and carriage of such Goods shall be governed by the terms of this bill of lading and, except as otherwise herein provided, by the provisions stated in said Carriage of Goods by Sea Act notwithstanding Section 1(c) thereof. Carrier shall also have the benefit of Sections 181 to 189, inclusive, of Title 46, U.S.Code, and of all other statutes of the United States or any other country which may be applicable in the circumstances to grant Carrier exemption from or limitation of liability. * * *"

Exception having been taken to the libel on the ground that, on its face, it failed to disclose a right or cause of action against respondent, and the same having been duly sustained with leave granted, however, to amend, there was thereupon first filed, with reservation, what libelant denominated a supplemental and amended libel, setting out specifically, but no more than, the following new matter, to-wit:

"On information and belief, libellant alleges that on or about May 3, 1941, the said S.S. `West Kyska', having libellant's cargo aforesaid on board, was proceeding at sea in normal weather, with a wind force of 3 on the Beaufort Scale, when the deck lashings to No. 1 port deck load gave way, permitting a quantity of said structural steel to slide overboard into the sea, and otherwise damaging libellant's cargo aforesaid; that prior thereto, namely, on or about April 15, 1941, respondent had permitted the bracings or lashings holding said cargo in place to break or become loose, and that the same were not thereafter properly secured but were allowed to remain insecure and insufficient to properly protect said cargo, and the loss of and damage thereto was caused by the aforesaid failure to properly stow and care for the said cargo."

Further exception being taken to libelant's pleadings, there was thereupon filed in due course, with repeated reservations, a re-drafted entire libel, in which was reproduced the aforementioned amendatory matter just quoted, by way of an added paragraph (b) to the fifth article of the libel, which otherwise remained substantially unchanged.

Respondent answered that if any shortage or damage occurred to libelant's shipment of steel, only the portion of such steel as was stowed on deck was involved, and that, under the terms of the bill of lading, no liability attached to respondent.

Pleading in the alternative, respondent then set up by way of defense that on May 3, 1941, while the West Kyska was proceeding to Seattle, she encountered a heavy westerly swell upon her port beam, causing her to roll and labor heavily; once rolling heavily to starboard and, upon the commencement of the counterroll to port, being struck by a wave which made her "righten suddenly, sharply, violently and with a twisting movement"; that this unusual movement caused the pelican hooks attached to the turnbuckles in the lashings securing the No. 1 deck stow of a portion of libelant's steel cargo, to straighten out; this allowed the hooks to slip out from under their shank rings, which released the chain lashings of the stow whose full weight upon being thrown against the outboard stanchions, between stow and ships rail, sheared them off at the rail's level; following which, some steel plates in the stow slipped overboard. But respondent's contention is that the occurrence was in no way caused by unseaworthiness of ship or equipment, or by faulty stowage of the deck cargo, or by negligence or failure of those in charge of the West Kyska in caring for the cargo, and that, therefore, under the bill of lading terms already referred to, respondent is not liable to libelant for the value of the lost plates.

Respondent furthermore pleaded that it could be held liable, in no event, if damage or injury sustained by the cargo took place while such shipment was no longer in respondent's custody — or, that is to say, after discharge of the shipment by the West Kyska at Seattle, and the subsequent carriage thereof from Seattle to Nome, Alaska, by other vessel.

From the evidence it appears that the shipment of structural steel involved was not loaded on cars at the manufacturing plant at Lancaster, Pennsylvania, for transportation to shipside at Baltimore, until it had all been first assembled and piece-marked to assure proper fit on the contemplated job of dredge construction at Nome, Alaska.

The parties stipulated that the structural steel shipment was, at all times, libelant's property and that upon its delivery to the railroad cars at Lancaster, the shipment was in good order and condition, none of the pieces composing it having bends or distortions other than such as were required as part of the steel's fabrication process.

They further stipulated that if one F. A. Finch had been called as a witness he would have testified that, for 20 years continuously up to the date of trial inclusive, he was a surveyor of the Board of Underwriters of New York at the Port of Baltimore, Maryland, and, in said capacity, had inspected more than 10,000 ship loadings; that he was thoroughly familiar with the proper and adequate methods of stowing deck cargo on ocean-going vessels; that he held an unlimited master's license, any ocean, any tonnage, had acted as master of vessels at sea and, altogether, had 25 years of actual sea-going experience; that he attended the loading of the West Kyska, during March 1941, in his aforementioned official capacity, for the specific purpose of determining whether the vessel's stowing was proper and adequate; that he saw the steel plate stow alongside the vessel's No. 1 hatch, and that such stowage was properly done and adequately secured, the lashings and gear used therefor appearing to then be in good and proper condition; and that he, thereupon, issued the usual and customary certificate of loading of The Board of Underwriters of New York, which he dated March 25, 1941.

They further stipulated, amongst other matters, that if certain named representatives of the respondent had been called as witnesses they would have testified that neither pelican hooks, nor turnbuckles to which attached, used in securing the West Kyska's No. 1 deck stow which went adrift on May 3, 1941, were ever subsequently delivered to respondent and were, so far as known by respondent, still on said vessel; and that title, ownership and control of said West Kyska passed to the United States of America (War Shipping Administration) as of August 26, 1943.

Libelant's construction engineer testified that he witnessed the loading of the greater part of the railroad shipment and, thereafter, the loading of a portion of the steel on to the West Kyska at Baltimore, and that at neither time did he observe "any particular little bends or anything that might have occurred in shipment", but that at Seattle, where he was also present for the discharge of cargo at the end of respondent's voyage, he did notice a few "bends or distortions" but took particular note of none, nor made a record thereof. In connection with his testimony, there was filed Libelant's Exhibit No. 1, i.e., a statement entitled "Nome Dredge No. 5, Pieces Damaged in Shipment", which the witness testified that he personally made up from damage listings appearing on dock slips, handed him at Nome, Alaska, upon discharge there of the steel shipment by other carrier than respondent.

The total cost to libelant for...