the period from April 2nd to April 5th, 1948.
22. No guard was maintained on the water side of the Pier. Land
access to Pier 98 was through entrances manned by employees of
Philadelphia Piers, Inc. Said employees checked incoming and
outgoing trucks for passes issued by steamship companies, but had
no right of search of contents of said trucks.
23. Respondent failed to exercise reasonable care for the
protection of libellant's cargo while said cargo was in the care,
custody and control of the respondent from April 2, to April 5,
24. The loss of the items set forth in Finding 14 above was due
to the carelessness and negligence of the respondent in failing
to maintain a reasonable watch over said items before delivery to
In this action respondent has raised three defenses. The first
defense challenges admiralty jurisdiction. The position taken by
the respondent is that once it is established that the goods are
actually off the ship's tackle, admiralty jurisdiction ceases.
The second contention is that under Paragraph 7 of the conditions
of the Bill-of-lading referred to in Finding 3, it was expressly
understood that the articles named therein should be at the risk
of the goods' owner, shipper, or consignee thereof as soon as
delivered from the tackle of said motor ship at her port of
discharge and they should be received package by package as so
delivered and if not taken away the same day they might (at the
option of the vessel's agent) be sent to store or warehouse or
permitted to lie where landed at the expense and risk of the
goods. This the respondent contends is a condition permitted
under the Carriage of Goods by Sea Act and completely exonerates
the respondent of any liability. The final contention is that
under the decision of the Court of Appeals for the Third Circuit
in The Monte Iciar, 167 F.2d 334, libellant has not maintained
its burden of proof.
As to the first contention that this case is not within
admiralty jurisdiction, respondent has cited several cases which
it alleges supports its contention. One of these is The Ciano,
D.C., 63 F. Supp. 892. There a consignee-owner of certain goods
sued a foreign steamship company and the Reading Company for
damages to goods in transit during rail shipment between
Philadelphia and Minneapolis, Minnesota. The damage clearly
occurred during rail shipment. Service was never made on the
ocean carrier and no appearance was entered on its behalf. The
Reading Company filed exceptions to the libel based on
jurisdiction. These exceptions were sustained and the libel
dismissed as to the Reading Company. The Court there held that
the contract involved with the Reading Company was wholly terrene
and that the Court had no jurisdiction in admiralty over the
action as to the Reading Company.
The case of Armstrong Cork Co. v. Farrell Line, Inc., D.C.,
81 F. Supp. 848, would seem to support respondent's contention of
lack of jurisdiction in admiralty. I do not understand, however,
that case to hold as contended for by the respondent that once
goods are landed from a ship to a pier, all admiralty
jurisdiction ceases. Respondent argues that the only obligation
thereafter imposed upon the carrier is the same obligation that
might be undertaken by any railroad, trucking company, or
warehouse man to maintain and protect the goods from harm for a
reasonable length of time until they could be taken away by the
libellant, which duties are distinctly not maritime in nature.
This entirely overlooks and disregards the fundamental obligation
of the carrier to deliver the goods to the consignee. Cf. The
Eddy, 5 Wall. 481, 72 U.S. 481-495, 18 L.Ed. 486. It is only by
virtue of the provisions of the Carriage of Goods by Sea Act,
46 U.S.C.A. § 1300 et seq., that the carrier by appropriate
provision inserted in a bill-of-lading is able to relieve itself
from the absolute obligations of a carrier. This right granted by
statute is subject to the provisions of the Harter Act,
46 U.S.C.A. § 190 et seq., which provides that the carrier may not
relieve itself from liability for negligence. The Monte Iciar,
The important question to be determined in this case is "Was
negligent?" Because of the provisions contained in the
bill-of-lading, the burden is on the libellant to establish that
negligence. The Monte Iciar, supra. Mere failure to deliver the
goods imposes no liability on the respondent. The respondent
carried its burden in showing that the goods were actually landed
on the pier. Thereafter it was the obligation of the libellant to
demonstrate that the disappearance of the goods was occasioned by
negligence on the part of the respondent. This burden was fully
recognized by the libellant who introduced testimony to show that
no guards were maintained over the cargo here involved on Pier 98
during the period from April 2nd to April 5th, 1948. While the
evidence disclosed that the land access to the pier was through
entrances manned by employees of the pier-owner, these employees
checked incoming and outgoing trucks only to determine that the
drivers thereof had passes issued by one of the steamship
companies then using the pier facilities. There was no right of
search of the contents of the truck and the operator of the pier
undertook no such service. It was further demonstrated that no
guards of any sort were maintained on the water side of the pier.
Respondent relied merely upon the presence of watchmen who were
in effect merely fire-watchers supplied by the operator of the
pier to guard against fire hazards in accordance with its
contract from its lessor, The Federal Maritime Board, an Agency
of the United States Government.
Respondent's testimony was that it only provided guards for the
protection of certain types of cargo, for example, cargo
consisting of small packaged goods easily hidden on the person.
It contended that in view of the heavy nature of the cargo
involved in this case and the manning of the land accesses to the
pier by the employees of the pier operator, it employed
reasonable safeguards for the protection of this cargo. With this
contention, I do not agree. The precautions taken to safeguard
the cargo were not reasonable under the circumstances and
constituted negligence on the part of the respondent. Pier 98 was
used by various shipping companies and the opportunities for
improper removal of cargo, even of the type here involved, are
too obvious to require discussion. The respondent, therefore, was
negligent and the attempt under the provisions of Paragraph 7 of
the conditions of the Bill-of-lading to exculpate itself of
liability fails because of that negligence under the provisions
of the Harter Act, 46 U.S.C.A. § 190. Libellant, therefore, is
entitled to judgment in its favor.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject
matter of this proceeding.
2. Respondent was a common carrier by water for hire of
libellant's shipment involved in this action.
3. As such common carrier by water for hire, respondent
contracted to transport libellant's shipment from Manila,
Philippine Islands, to Philadelphia, Pennsylvania, and there
deliver the same to the libellant.
4. That portion of libellant's shipment consisting of
1 drum scrap brass
1 " " copper
6 bdls. scrap copper
3 rolls scrap copper wire
was never delivered to the libellant by re-respondent.
5. The failure of respondent to deliver the aforesaid portion
of libellant's shipment was due to the negligence of the
respondent in respect to the care and custody thereof.
6. Section 1 of the Harter Act, 46 U.S.C.A. § 190, is
applicable and the respondent is liable for negligence in the
case of the libellant's cargo while on the pier despite the
provisions of Paragraph 7 of the bill-of-lading.
7. Respondent is liable to libellant in damages in an amount
equal to the value of that portion of said shipment not delivered
8. Libellant is entitled to entry of judgment in its favor.
An appropriate order for judgment will be submitted. If the
parties cannot agree upon damages, a further hearing will be held
to determine the amount.
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