248 F. 803 | E.D. Pa. | 1918
The General Manufacturing Company has libeled the steamship Ogeechee for the recovery of damages for injuries to a cargo of phosphate rock shipped on her at Tampa, Florida, for delivery in Philadelphia. It is admitted in the pleadings, among other things, that the libelant is engaged in the business of manufacturing phosphoric acid, fertilizers, and other products; that the Ogeechee is an American vessel hailing from the port of New York, and at the time thereinafter mentioned was owned, chartered, operated or controlled by the Southern Steamship Company, engaged in the business of a common carrier for hire between Philadelphia and Tampa, and other southern ports; that the libelant on or about November 24, 1914, caused to be delivered to her at Tampa 996 gross tons of crude dry phosphate rock in good order and condition, to be conveyed by her as a common carrier to Philadelphia; that the Ogee-chee accepted the shipment of phosphate rock as such common carrier, and by reason of the premisés became liable and was bound to1 properly load, stow and care' for the same, and make proper delivery thereof at Philadelphia to the libelant as the true and lawful owner thereof in the same good order and condition as received. The libel alleges that the Ogeechee, not regarding her duty as a common carrier, did not safely carry and deliver to the libelant at Philadelphia her cargo of phosphate rock in the same good order and condition as when received ; but that when the cargo was delivered to the libelant a large portion of it was wet and greatly damaged, for which damage no compensation has been made. The respondent denies liability on the part of the Ogeechee and avers in substance, among other things, that it was agreed between the libelant and the respondent that upon the' arrival of the Ogeechee at Philadelphia her cargo was to be unloaded from her and placed on lighters which were thereupon to be towed to1 the wharf of the libelant at Greenwich Point, Philadelphia, where the libelant was to unload the phosphate rock from the lighters to its wharf, and to be allowed for such unloading 18 cents per ton.
It appears that on or shortly after the arrival of the Ogeechee at Philadelphia at the. beginning of December, 1914, she unloaded her cargo of 996 tons of phosphate rock to and upon the two lighters Howard and Belgrade, placing upon the Howard on Thursday, December 3, upwards of 500 tons, and the balance of her cargo upon the Belgrade on the next following day. The Howard with its load was on Friday, December 4, towed and tied to the libelant’s wharf at Greenwich, where the phosphate rock was placed upon the wharf, the unloading of the Howard being completed about 4 p. m. on Saturday. The libelant makes no claim for damages with respect to the phosphate rock carried by the Howard. The Belgrade with its load reached the vicinity of the wharf about 11 a. m. Saturday, when the representative, of the
Subject to the qualification that lighterage should be at the risk and expense of the cargo, the Ogeechee was bound, unless prevented by the specified dangers of the sea, not only for the carriage of the cargo from Tampa to Philadelphia, but for its delivery in good order and condition on libelant’s wharf, in the absence of stipulation or settled usage to the contrary. The Tangier, 23 How. 28, 39, 16 L. Ed. 412. And what was thus required by the general law of shipping was in contemplation of the parties; for while the freight for the voyage was fixed at $2.15 per ton of 2240 pounds, an allowance of 18 cents per ton was to be made to the libelant or owner of the cargo for unloading it, recognizing that the stipulated freight for the carriage of the cargo to Philadelphia included its delivery on the libelant’s pier. This accords with the direct evidence on the point, the acting general manager of the libelant testifying to the effect that the freight to be paid die carrier, subject to an allowance or deduction for stevedoring, required delivery of the Ogeechee’s cargo on the libelant’s wharf. There is nothing in the provison that lighterage should be at the risk and expense of the cargo to relieve the respondent from liability for failure to deliver it in good order and condition on the wharf unless prevented from so doing by loss or damage during the lighterage not occurring through its fault. The respondent not only claims that it had completed its contract of carriage so far as the phosphate rock on the Belgrade is concerned when that vessel was made fast to the libelant’s wharf, but contends that it was the duty of the libelant under the arrangement by which it was to be allowed 18 cents a ton for unloading the lighters, to unload the Belgrade promptly and take such other and further steps as should be necessary for the protection of its load of phosphate rock from loss or damage, and that having failed to discharge this duty the libelant is responsible for the damage subsequently resulting from rain. This contention, while plausible, I deem unsound. It appears that on Saturday afternoon at the time the above mentioned conversation between Ericsson and Haines occurred, rain was either falling or immediately'impending. It was highly important to the libelant that the phosphate rock on the Belgrade should not be damaged by exposure to rain during the unloading. Nightfall was nearly at hand. It had taken from eight to nine hours to load the Belgrade and it was impossible to complete the unloading before the following day, and that day was Sunday. Ericsson took a reasonable view of the situation; for when Haines suggested that the Belgrade be placed in a position to be ready for the work of unloading on Monday morning there was no protest by the former — no indication by him to Haines that the libelant would at its own peril omit to proceed forthwith with.the work of stevedoring. On the contrary Ericsson in charge of the Belgrade and in that capacity representing the respondent assented to the suggestion in the words, “That is all right.” On Monday, December 7, the time appointed for the unload-
The libelant is entitled to a decree adjudging the Ogeechee in fault and referring the case to a Commissioner for the assessment of the damage, on the evidence heretofore adduced and such further evidence as shall be taken before him on that subject.
A decree in accordance with this opinion may be prepared and submitted.