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 drum scrap copper
6 bdls. scrap copper
3 rolls scrap copper wire
was never delivered to the libellant by 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 to libellant.
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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