Appeals, Nos. 268, 269 and 277, Jan. T., 1957, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1955, No. 8729, in case of Panama Canal Company, a corporation v. Stockard & Company, Inc., a corporation, and Stockard Shipping & Terminal Corp. Judgment affirmed.
F. Hastings Griffin, Jr., with him Barnes, Dechert, Price, Myers & Rhoads, for plaintiff.
Benjamin F. Stahl, Jr. with him James F. Young and Clark, Ladner, Fortenbaugh & Young, for defendants.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
Plaintiff, a shipping company, instituted an action in assumpsit in the Court of Common Pleas No. 6 of Philadelphia to recover damages from defendants for the alleged failure of a terminal operator, Mobile Service Corporation, properly to care for and deliver to the consignees entitled to receive them, all items of cargo discharged onto Mobile's pier during the course of an unscheduled call by one of plaintiff's ships at the Port of Philadelphia in March of 1954. The
case was tried without a jury, and the court found for the plaintiff in the amount of $10,053.13, the sum of amounts paid by plaintiff to the consignees for the shortages with interest from the date of payment. The defendants have appealed on the following grounds:
(1) The evidence is legally insufficient to support the court's finding that the missing cargo in question - four rubber tires and seventy-five bags of coffee - were loaded on board plaintiff's vessel and discharged therefrom onto Mobile's pier; (2) Even if this cargo were received by Mobile, defendants are not liable for its loss because provisions in the covering bills of lading precluded recovery by the consignees for this loss. Plaintiff has filed a cross-appeal from the amount of the judgment recovered, and contends that it is entitled to recover the market value of the goods as of the date upon which they should have been delivered rather than the amounts it paid to satisfy claims for shortages.
From the opinion of the court below, the undisputed facts are as follows: "Plaintiff operates cargo vessels between the ports of Cristobal and New York, with stops each way at Port au Prince, Haiti. Because of a strike condition in the port of New York which began March 5, 1954, plaintiff was temporarily prevented from using its own pier facilities to receive the inbound cargo of its vessel, the SS Panama, and to load her outbound. On the day the strike began plaintiff made arrangements to have the Panama call at Philadelphia, the nearest available port. Defendant, Stockard & Company, Inc., which had offices in Philadelphia, undertook to act as the vessel's agent while in Philadelphia. Stockard arranged to have its wholly owned subsidiary, Mobile Service Corporation, which operated Pier 5, North Wharves, at that time, act as terminal operator for the Panama. Defendant,
Stockard Shipping & Terminal Company, is the successor by merger to Mobile Service Corporation.
"The Panama arrived at Port au Prince on March 8, 1954. It was loaded outbound and departed the same day. The Panama arrived at Pier 5, Philadelphia, on Friday, March 12, 1954, and began discharging cargo on the following Monday. It was loaded outbound and departed on Friday, March 19, 1954. Sometime between April 21, 1954 and May 4, 1954 Mobile sent plaintiff a "turnover" report disclosing the dates upon which it made deliveries of the Panama's cargo. Consignees under five of the bills of lading, all issued for carriage from Port au Prince to New York, received less cargo than called for by their bills. These shortages totaled four rubber tires and seventy-five bags of coffee.
"According to the record, shipping companies which do not have offices in a port customarily appoint an agent to handle their vessels' business. The agent takes care of such matters as clearing customs and immigration, ordering pilots and tug boats, and making arrangements for berthing and the handling of cargo. With respect to handling cargo, stevedores physically unload the vessel and a terminal operator takes charge of the cargo when it is placed on the pier. Customarily terminal operators supply checkers who count the cargo and sort it by mark as it is being discharged onto the pier. ...