123, 124) Therefore we find that the cargo was separated from other cargo on the pier and was accessible to Kinderman.
We are also unimpressed with plaintiff's argument that a reasonable time to take delivery was not afforded because the period of "free time" had not expired. "Free time" is merely the period of time during which a consignee can allow his goods to remain on a pier before it must start paying additional charges. It has nothing to do with whether a carrier has exercised reasonable care in discharging goods from his ship, North American Smelting Co., supra, 204 F.2d at p. 386 and has no relevance to the question of what constitutes a proper delivery of the cargo. Calcot, supra, 318 F.2d at p. 673.
Finally, we reject plaintiff's contention that a reasonable opportunity to remove the goods was not provided because long waiting lines and crowded conditions at the pier prevented the removal of the cargo. Plaintiff could have removed its cargo on June 9, 10, 11, 14 or morning of the 15th, the day of the fire. On June 9, 10, and 11 plaintiff sent its truck driver to Pier 53 at 8:00 A.M. However, on each occasion the driver waited only until 10:00 A.M., and then called plaintiff's shipper and receiver and advised him that there was a long waiting line at the pier. He then returned to Kinderman's place of business. On June 14 the driver again went to Pier 53 at 8:00 A.M. and remained there until 4:00 P.M. He testified that he was told at that time that it was too late for him to remove the goods but that if he would return the next day at 8:00 A.M., he would be processed first. Even if this statement is true, the fact is that the driver did not return at 8:00 A.M. the next morning, but rather at 1:00 P.M., after the fire on Pier 53 had already started. Moreover the statement is rebutted by the testimony of Lavino Shipping Company's dock boss and delivery clerk, the only two persons who would have been in the position to make the alleged statement. They both testified that they did not tell the driver that it was too late to remove the goods and that the company's policy was that anyone in line by 4:00 P.M. would be serviced. We therefore find that Kinderman could have removed its cargo between the time that it was discharged and the time of the fire.
We are also impressed by the fact that most of the other cargo which had been discharged from the S.S. SETA MARU was removed from the pier prior to the time of the fire. Defendant introduced into evidence 47 delivery receipts which were the delivery receipts for all of the bills of lading from the S.S. SETA MARU. (Ex. D-4) Six of the delivery receipts represent the Kinderman cargo and it is noted on them that the cargo was destroyed by fire or that it was received by Kinderman after the fire in damaged condition. Of the 41 delivery receipts representing the remaining cargo discharged from the S.S. SETA MARU, 24 show complete delivery to the consignee by the time of the fire, 10 show that the consignee removed at least a substantial portion of the cargo from the pier, and only 7 receipts show a complete or practically complete loss. Under the circumstances, we believe defendant afforded all consignees a reasonable opportunity to remove their cargo.
As defendant made a proper delivery of the cargo to plaintiff, the risk of loss passed to plaintiff for any loss not occasioned by negligence on the part of the defendant. The burden of proof of such negligence is on plaintiff, as once there has been a proper delivery of cargo, the Harter Act no longer applies to the relationship of the parties. Calcot, supra. As plaintiff has not shown any negligence on the part of defendant, defendant is entitled to judgment.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and of the subject matter.
2. Defendant properly delivered the cargo to plaintiff, thereby passing the risk of loss to plaintiff.
3. Defendant was not negligent with respect to the loss.
4. Judgment is entered for defendant Nippon Yusen Kaisha Lines.
© 1992-2004 VersusLaw Inc.