The opinion of the court was delivered by: KALODNER
This is a libel for cargo damage against the Calmar Steamship Corporation wherein the libellant cargo owner, Thomas Roberts & Company, has joined the St. Paul Fire & Marine Insurance Company as a respondent.
The legal status of the libellant, its ownership of the goods, the fact of the shipment and issuance to libellant of the bill of lading and certificates of insurance, the fact of damages and the amount of libellant's net expense in reconditioning the goods are admitted by respondents by stipulation. Although there are collateral issues, there are two broad questions for determination: Whether the Calmar Steamship Corporation is answerable for the damage, and whether the damage comes within the risks insured against by the St. Paul Fire & Marine Insurance Company.
On the basis of the pleadings and the testimony, I make the following
1. At all times involved in this case, the libellant was and now is a partnership consisting of W. W. Thrasher, L. A. Thrasher, W. J. Rothrock, and J. H. Rothrock, general partners, and Wainright Churchill, special partner, trading as Thomas Roberts & Company, with a place of business at No. 135 South Second Street, Philadelphia, Pa.
2. Respondent, Calmar Steamship Corporation, at all times involved in this case was and still is a corporation duly organized and existing under the laws of the State of Delaware, owning and operating the steamships 'Oakmar', 'Flomar', and 'Calmar' as general ships in the common carriage of merchandise between Baltimore, Maryland, and Seattle, Washington, and other ports.
3. At all times involved, respondent St. Paul Fire & Marine Insurance Company was a corporation duly authorized to issue insurance within the Commonwealth of Pennsylvania.
4. In November and December, 1940, respondent Calmar Steamship Corporation agreed to carry for libellant from Baltimore, Maryland, to Seattle, Washington, 6,398 cases of No. 10 tin cans of beets under Government form bill of lading.
5. Said agreement was initiated by libellant in two letters dated respectively November 25 and December 9, 1940, each referring to a part of said total of 6,398 cases, and in each of which letters libellant stated as follows:
'These goods are for shipment on Government B/L.
'Under no consideration, are you to load any of these beets on your steamer unless you can furnish the Government with a clean B/L. Please have no misunderstanding regarding this.'
6. Respondent Calmar Steamship Corporation accepted the orders of libellant in said two letters and subsequently did issue a clean Government form bill of lading covering the cases hereinafter referred to.
7. Libellant's canned beets were packed at Ontario, New York, and shipped from there in six railroad cars to Baltimore, Maryland.
8. The first two cars, containing 2,000 cases of said canned beets, were shipped from Ontario on November 30 and December 3, 1940. They were loaded onto the S/S 'Oakmar', which left Baltimore on December 8, 1940, and arrived at Seattle on January 17, 1941.
9. A third car, containing 1,000 cases, left Ontario, on December 4 and the cases were unloaded from said car at Baltimore on December 14, 1940. Respondent Calmar Steamship Corporation rejected 14 of said cases for the stated reason that they were damaged, and the remaining 986 cases were loaded onto the S/S 'Flomar', which left Baltimore on December 15, 1940, and arrived at Seattle on January 20, 1941.
10. The remaining three cars, containing 3,398 cases, left Ontario on December 12, 13 and 14 and were unloaded at Baltimore on December 20, 1940, where respondent Calmar Steamship Corporation rejected 19 cases for the stated reason that they were damaged. The remaining 3,379 cases were loaded onto the S/S 'Calmar', which left Baltimore on December 21, 1940 and arrived at Seattle on February 2, 1941.
11. On each of the said three vessels the canned beets were stowed in the wings of No. 4 hold, which is as good a place for stowage of cargo of this nature as could be found on said steamships.
12. Respondent Calmar Steamship Corporation, as required by the instructions of libellant, issued one bill of lading on Government form, dated December 21, 1940, covering the total of 6,365 cases which went forward on said three steamships, and receipting for the cases as in 'apparent good order and condition.'
13. Said bill of lading contained the following provision:
'Unless otherwise specifically provided or otherwise stated hereon, this bill of lading is subject to the same rules and conditions as govern commercial shipments made on the usual forms provided therefor by the carrier.'
There was nothing 'otherwise specifically provided or otherwise stated' on said bill of lading.
14. The usual form bill of lading provided by respondent Calmar Steamship Corporation in connection with commercial shipments at said time contained the following clause:
'16. Neither carrier nor vessel shall be liable for any loss, damage or delay * * * arising from any of the following causes: * * * causes beyond the carrier's control; * * * mildew, mould * * * inherent defect or vice propre; * * * insufficiency of package, in strength or otherwise * * * rust, stain, ...