The opinion of the court was delivered by: Clary, District Judge.
This is an action in admiralty to recover damages for loss of
cargo in a shipment originating in the Philippine Islands and
consigned to libellant at Philadelphia, Pennsylvania. By
agreement of the parties the issue of liability was tried first.
From the pleadings and proof in this case I make the following
1. Libellant is a Pennsylvania corporation with principal
office and place of business in Wilmington, Delaware.
2. Respondent is a corporation with principal office and place
of business in the United States of America at 30 Broad Street,
New York, N.Y., owning and operating a number of vessels engaged
in the common carriage of cargo on the high seas, and the owner
of the motor ship Johannes Maersk, which is a general ship
engaged in the transportation of merchandise for hire as a common
carrier between, among others, the ports of Manila, Philippine
Islands, and Philadelphia, Pennsylvania, U.S.A.
3. On or about January 22, 1948, Sy Hap Seng delivered to
respondent at said port of Manila a shipment consisting of:
58 full drums of heavy yellow brass scrap,
45 half drums of heavy scrap soft lead,
54 full drums of heavy copper and wire scrap,
21 bundles of heavy copper and wire scrap,
9 rolls of heavy copper and wire scrap, to be transported from
said port of Manila to said port of Philadelphia, there to be
delivered to the order of libellant in consideration of an agreed
freight, which was prepaid, and in accordance with the terms of a
certain bill of lading then and there signed and delivered to
said shipper by the duly authorized agent and representative of
respondent and of said motor ship Johannes Maersk.
4. Thereafter respondent loaded said shipment on board said
motor ship Johannes Maersk and said vessel, having the same on
board, sailed from said port of Manila and on or about March 27,
1948, arrived at said port of Philadelphia.
5. On Monday, March 29, 1948, the Traffic Manager of
respondent's Philadelphia Agent mailed a notice to libellant
apprising libellant of the arrival of the aforesaid shipment.
6. On March 29, 1948, pursuant to authorization of the
Collector of Customs of the Port of Philadelphia to discharge the
cargo from the vessel immediately upon arrival, the motor ship
Johannes Maersk commenced discharging cargo at Pier 98 South
where the Steamship's Agent for said Johannes Maersk, B.H.
Sobelman & Co., Inc.,
had made arrangements with Philadelphia Piers, Inc., to berth the
7. Under the arrangements with Philadelphia Piers, Inc., the
motor ship Johannes Maersk had the right to discharge cargo from
the vessel to the pier within the confines of the length of the
vessel plus 50 feet or the width of the pier.
8. By custom prevailing in the Port of Philadelphia during
March and April of 1948 and by the standard practice of
Philadelphia Piers, Inc., operators of Pier 98 South, consignees
of cargo were allowed a period of "free time" of 5 days'
duration, exclusive of Saturdays, Sundays and Holidays, following
complete discharge of cargo for the removal of such cargo from
the discharge pier without incurring an additional charge in
9. Libellant's shipment of scrap metal was unloaded onto the
Pier sometime during the day of March 29, 1948, and under the
direction of a Checker employed by respondent's Agent, B.H.
Sobelman & Co., Inc., it was sorted and placed in adjoining bays
inside the covered portion of the Pier and on the ...