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North American Smelting Co. v. Moller S.S. Co.

decided: May 11, 1953.

NORTH AMERICAN SMELTING CO.
v.
MOLLER S.S. CO., INC.



Author: Goodrich

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

This is an action brought to recover for the loss of certain goods shipped from the Philippine Islands to Philadelphia. The goods were shipped on the "Johannes Maersk" and arrived in Philadelphia on Saturday, March 27, 1948. The shipment, which was consigned to the North American Smelting Company, libellant here, consisted of 187 pieces as follows:

58 full drums heavy yellow brass scrap

45 half drums heavy scrap soft lead

54 full drums heavy copper and wire

21 bundles heavy copper and wire

9 rolls heavy copper and wire

The total weight of this shipment was 157,795 lbs. or an average weight per piece of 843 lbs. The vessel began unloading at 8:00 A.M. on March 29, 1948. On that same day an arrival notice was mailed to the consignee. The notice accurately gave the place of the discharge of the cargo. The goods consigned to North American were discharged onto Pier 98, in the Port of Philadelphia, on March 29th.*fn1

On Friday, April 2nd, a portion of the shipment was removed. This consisted of 40 drums of the scrap brass, 36 drums of the copper, and 27 half drums of lead. To complete removal on Friday the libellant would have been compelled to pay overtime to the steamship company's delivery clerk and checker. Work was suspended at 5:00 P.M. on Friday, April 2nd. On Monday, April 5th, a check revealed that a portion of the shipment was missing. This portion consisted of 1 drum of heavy yellow brass scrap, 1 drum of heavy copper and wire scrap, 6 bundles of heavy copper and wire scrap, and 3 rolls of heavy copper and wire scrap. The question in this case is whether the steamship company must pay for this loss.*fn2

By the terms of the Bill of Lading under which these goods were shipped it is stipulated that failure to notify consignee "shall not involve Carrier or Agents in any responsibility * * *"*fn3 The bill of lading contains the further stipulation: "* * * And it is expressly understood that the articles named in this Bill of Lading shall be at the risk of the Goods' Owner, Shipper, or Consignee thereof as soon as delivered from the tackle and/or deck of such steamer at her port of discharge * * * if not taken away the same day they may * * * be * * * permitted to lie where landed at the expense and risk of the goods * * *."

If the provisions of the bill are to be applied literally the case quite clearly comes to an end forthwith and in favor of the carrier. It did place the goods on the pier. But at the argument the steamship company's counsel admitted that such a happy solution, from his standpoint, was too good to be true. This admission was well made in view of the language of the Harter Act.*fn4 We were given reference to the Carriage of Goods by Sea Act, 46 U.S.C. ยง 1300 et seq. But whatever that Act does we do not think it touches the question in this case, and appellant's counsel, upon careful examination of his argument, does not think so either.

There is no doubt that in discharging the cargo onto the pier and notifying the consignee the carrier was no longer in possession of the goods so as to suffer the risk of loss not due to any negligence on its part.*fn5 During the course of the removal of the shipment from the pier the consignee's employee gave a receipt for the items taken away on his truck to the agent of the steamship company. We do not think, however, that this showed that the carrier was still in possession of the goods and responsible for them. We regard the receipt rather as a matter of orderly bookkeeping procedure having no significance on the question of whether the carrier had fulfilled its duty to the consignee.

We think the real and only issue in this case gets down to the question whether the appellee exercised reasonable care in placing the goods on the pier, notifying the consignee and then, after a portion of the goods had been removed, leaving them without a guard until they were finally taken away in a truck furnished by the consignee. This issue was somewhat confused, we think, by references to the so-called five-days free time rule which prevails on this pier.This court has had occasion to go rather fully into the matter of free time on Philadelphia wharves. Baltimore & Ohio R.R. Co. v. United States, 3 Cir., 1953, 201 F.2d 795. We think the question when a consignee must start paying additional charges to the ...


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