second officer of the vessel, and Mr. Bryant, cargo surveyor for respondent's agent at Philadelphia, who had previously, in the course of his experience, surveyed the cargo of two to three hundred Spanish vessels. Respondent also offered in evidence a certificate purportedly signed by a Lloyd's cargo surveyor in Spain, to the effect that the cargo was properly stowed, to which certificate I attach little importance. The testimony of the captain and the second officer, which was taken by deposition, was vague in many respects; and I rely more upon the testimony of Mr. Bryant with respect to the method of stowage employed, and have found it to be as set forth in Finding of Fact No. 8, supra, which is, incidentally, substantially the same finding which was suggested by both libellant and respondent, although the parties disagree as to whether or not the method employed was proper. Mr. Bryant's testimony further showed that the method of stowage employed was customary and proper for ships of the type of the 'Monte Iciar,' and his testimony on this point was unrebutted and uncontradicted. Libellant failed to show improper stowage. Indeed, I think that respondent has affirmatively proved proper stowage.
There is no other evidence that any act or omission on the part of respondent, its agents, or servants, during the period commencing with loading and terminating with discharge, caused or contributed to libellant's loss. There is no evidence that the parties to the bill of lading stipulated that the Carriage of Goods by Sea Act should control the shipment prior to loading or subsequent to discharge. My conclusion, then, is that the Carriage of Goods by Sea Act does not govern the validity and interpretation of the exception clause contained in the bill of lading in the instant case.
There is, however, another statute which I do think has an important bearing on the present case -- the Harter Act.
The Harter Act provides that
' * * * It shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses or such import inserted in bills of lading or shipping receipts shall be null and void and of no effect.'
Comparison of the Harter Act with the Carriage of Goods by Sea Act, supra, reveals this significant distinction: Where a shipment from a foreign port to a United States port is involved, although the provisions of the Harter Act were superseded by the Carriage of Goods by Sea Act with respect to the period of time from loading through discharge of the cargo, nevertheless the Harter Act, insofar as it applies to the period of time subsequent to discharge, up until delivery of the cargo, was not superseded by the Carriage of Goods by Sea Act. This distinction is recognized in Section 12 of the Carriage of Goods by Sea Act.
Inasmuch as any loss of contents from libellant's barrels of wine occurred after discharge of the cargo, it becomes important to construe the exceptive clause in the present bill of lading in the light of the Harter Act. The exception clause in the bill of lading provided that the carrier should not be responsible for 'leakage, breakage, or spigoting.' Whatever loss libellant sustained was manifestly within that description.
It is well settled that, under the Harter Act, where the carrier succeeds in bringing the loss of cargo within an exceptive clause in the bill of lading, the shipper can recover only upon affirmative proof that negligence on the part of the carrier caused or contributed to the loss. The Folmina, 212 U.S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann.Cas. 748; The Patria, 2 Cir., 132 F. 971; Thomas Roberts & Co. v. Calmar S.S. Corporation, D.C., 59 F.Supp. 203; The Gothic Star, D.C., 4 F.Supp. 240; The Henry B. Hyde, 9 Cir., 90 F. 114. In the instant case there is no proof whatever of negligence on the part of respondent during the period subsequent to discharge, up until delivery of the cargo. There was evidence which showed that seven of the barrels were recoopered subsequent to discharge, and that this recoopering was performed by the railroad's agents at the request of respondent or its agents; however, I do not think that the fact that respondent called attention to the desirability of re-coopering necessarily indicates that respondent had been negligent with respect to the cargo. I therefore conclude that, by reason of the exception clause in the bill of lading, respondent is not liable under the Harter Act for any loss which libellant sustained subsequent to discharge of the cargo, until delivery thereof to libellant's agents.
Libellant's shipment was subsequently transported via railroad to Baltimore, Maryland, where it was found, upon arrival, that several of the barrels were leaking badly. The testimony of the railroad's agent showed that the barrels which had not been recoopered were in good condition when they were turned over to the railroad at Philadelphia; and the evidence further showed that whatever recoopering had been performed, had been performed by the railroad's agents. Under these circumstances, I can find no basis for asserting liability against respondent for the loss which was manifest upon arrival of the shipment at Baltimore.
I cannot agree with libellant's contention that it is incumbent upon respondent to explain any shortage upon delivery. The only construction of that contention which would support libellant's present claim would be, that even though respondent has shown that the loss came within an exception to the bill of lading, respondent would still have to show and explain the promoting cause of the leakage or breakage in the barrels. I do not think that this interpretation can be sustained. See The Patria, supra; Thomas Roberts & Co. v. Calmar S.S. Corporation, supra; The Folmina, supra. Libellant's second contention, that respondent failed to stow, carry and discharge libellant's wine properly and carefully, has not been established by the evidence. Libellant's third contention, that respondent has not shown that the shortage in and damage to the barrels of wine were within an exception permitted by the Carriage of Goods by Sea Act, has already been answered by the foregoing discussion, in which I have concluded that the Carriage of Goods by Sea Act does not apply in the instant case.
Conclusions of Law.
1. Libellant is a proper party in interest to maintain this libel.
2. Respondent's liability in the instant case is not governed by the provisions of the Carriage of Goods by Sea Act.
3. The Harter Act is applicable to the present libel. Under the Harter Act, respondent is not liable to libellant because the loss was brought within a valid exception to the contract of carriage, and libellant failed to negative the effect of the exceptive clause by showing negligence on the part of respondent, its agents, or servants.
4. The libel is dismissed, with costs.