The opinion of the court was delivered by: BARD
This is a libel for cargo loss against the steamship 'Monte Iciar' and her owners, Naviera Aznar S.A. On the basis of the pleadings and the testimony, I make the following special
1. At all times involved in this case, the libellant was, and now is, a corporation duly organized and existing under the laws of the District of Columbia, with its principal place of business at 2410 Eighth Place, N.E., Washington, D.C.
2. Respondent, Naviera Aznar S.A., was at all times involved in this case, and still is, a corporation duly organized and existing under the laws of Spain, owning and operating as a common carrier several steam vessels engaged in the carriage of cargo upon the high seas. Among the vessels owned and operated by respondent is the steamship 'Monte Iciar,' which is within the jurisdiction of this court.
3. During the month of February, 1944, A. Deleyto delivered to respondent Naviera Aznar S.A. at the port of Cadiz, Spain, a shipment of seventy wooden barrels containing dry sherry wine consigned to 'Order -- Notify: Messrs. Park Benziger & Co. Inc. -- 24 State Street -- New York.'
4. On February 28, 1944, respondent's duly authorized agent, the captain of the 'Monte Iciar,' issued a bill of lading covering this shipment of wine, acknowledging receipt of seventy barrels of wine, gross weight 48,349 kilograms, net weight 41,774 kilograms. The bill of lading provided for shipment to Philadelphia, Pennsylvania. The face of the bill of lading bore a stamped notation, 'Not Responsible for Leakage, Breakage or Spigoting.' This notation had been applied prior to the time that the captain of the 'Monte Iciar' signed the document.
5. In February 1944 the United States Consul at Seville, Spain, issued a Consular Invoice of Merchandise covering this shipment, which stated that the shipment consisted of 11,200 gallons.
7. The barrels were the usual type of container used for transporting wine. They were not new, but appeared to be in sound condition when loaded aboard the vessel. At the time of loading there was no evidence of loss of contents from the barrels.
8. Libellant's shipment of seventy barrels comprised a portion of a total of 391 barrels of wine of three different sizes, which were stowed in number 3 and number 4 'tween decks. There is no evidence as to the exact location of libellant's shipment within this general area. A floor of dunnage wood was laid over the entire 'tween deck, with the exception of the portions over the wooden covers above the opening to the hold. The barrels were stowed head up in a single tier, except for those in the square of number 3 hatch, which were laid in three tiers, fore and aft, arranged bung-up in bilge and cantline fashion, extending to the top of the hatch coaming. A layer of dunnage wood was placed on top of the single tier of barrels stowed head up, with three to five tiers of cases of brandy placed on top of the dunnage wood. The barrels were protected from the skin of the ship by a wall of dunnage wood. The portion of the shipment placed in the square of number 3 hatch, which was arranged in bilge and cantline fashion, was well braced with chocks and quoins.
9. The 'tween decks of the 'Monte Iciar' are approximately eight feet high, except under the hatch cover, where the height is approximately eleven feet. Although the recommended practice of stowing barrels, where multiple tiering is involved, is bilge and cantline, it is regular and customary to stow barrels in the 'tween decks of Spanish vessels in a single tier, head up, because of the low ceiling in 'tween decks.
10. The 'Monte Iciar' arrived at Philadelphia, Pennsylvania, on April 9, 1944. She was berthed at Pier 55 South on April 10, 1944, and discharged the cargo in number 3 and number 4 'tween decks on April 12 and 13, 1944. The barrels were discharged from the vessel by the ship's tackle in the customary and accepted manner.
11. Inspection of number 3 and number 4 'tween decks prior to discharge did not reveal any indication that the cargo therein had shifted during the course of the voyage. After the cargo had been discharged, the dunnage wood and the floor of number 3 and number 4 'tween decks were found to be clean and dry.
12. None of the barrels was observed to be leaking during discharge of the cargo.
13. A day or two after discharge, when the entire shipment of barrels was on the pier, the ship's Second Officer observed one barrel leaking, and thereafter the Captain observed 'some' barrels leaking, from the joints of the barrel staves. The observations of the Captain and the Second Officer were made with respect to the entire cargo of barrels in general, and neither identified the leaking barrels as ones which formed a part of libellant's shipment.
14. When libellant's shipment arrived at Philadelphia, a Customs in Bond Transportation Application was filed with and accepted by the Collector of Customs at Philadelphia for transportation of the shipment in bond to the Collector of Customs at Baltimore, Maryland, with libellant as consignee. This was done by Charles Kurz Co., libellant's agent. The Collector of Customs permitted the wine to be shipped under an 'In Transit' bond to Baltimore, Maryland, where, according to United States Customs ...