American Creosoting Co. v. Deutsche Petroleum Aktien Gesellschaft

28 F.2d 356, 1928 A.M.C. 1458, 1928 U.S. Dist. LEXIS 1485
CourtDistrict Court, D. New Jersey
DecidedAugust 16, 1928
StatusPublished

This text of 28 F.2d 356 (American Creosoting Co. v. Deutsche Petroleum Aktien Gesellschaft) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Creosoting Co. v. Deutsche Petroleum Aktien Gesellschaft, 28 F.2d 356, 1928 A.M.C. 1458, 1928 U.S. Dist. LEXIS 1485 (D.N.J. 1928).

Opinion

RELLSTAB, District Judge.

This is a libeR by the American Creosoting Company against the steamer Massasoit and her owner, the Deutsche Petroleum Aktien Gesell-sehaft, respondent, to recover for damages alleged to have been sustained through the failure of the respondent to deliver 55,000 gallons of creosote oil. The Hamburger Tanker Gesellschaft, as claimant, filed a cross-libel to recover the amount of expenses alleged to have been incurred in removing the creosote and for detention of the steamer during the period of removal.

The full capacity of the Massasoit was chartered by the libelant to carry a cargo of creosote from Antwerp to the port of New York. Admittedly, this is a ease of private, and not common, carriage. The respondent, therefore, was but a bailee to transport for hire. The G. R. Crowe (D. C. S. D. N. Y.) 287 F. 426 and cases cited; The Oakley C. Curtis (C. C. A. 2) 4 F.(2d) 979; The Nordhvalen (D. C. Md.) 6 F.(2d) 883; Warner Sugar Refining Co. v. Munson S. S. Line (D. C. S. D. N. Y.) 23 F.(2d) 194.

The terms of the charter, therefore, measure and determine the rights and obligations of the parties thereto. Its pertinent provisions are:

“(1) The said steamer shall be fitted at the expense of the owners with the necessary steam-heating apparatus, the creosote to be kept heated at 90° to 100° F. continuously during the voyage and in a fit state for ready discharge on arrival at destination. * * *
“(2) The said steamship being tight, staunch, and strong, and every way fitted for the voyage, and to be maintained in such condition during the charter, perils of the sea excepted, shall, as ordered before sailing from discharging port, with all convenient dispatch, sail and proceed to one or two safe ports in the east coast of the United Kingdom and/or continent (Ostend-Hamburg range, inclusive) in charterer’s option, or so near unto as she may safely get (and always afloat), and there load from the factors of the said charterers, a cargo of 6,000 tons 5 per cent, more or less, in owner’s option, creosote oil (guaranteed to be fluid, free of pitch, and freely pumpable at a temperatura not higher than 100° F.) in bulk, * * • and being so loaded shall therewith proceed * * * direct to a safe United States Atlantic port * * * and deliver the same. • •
“(6) The cargo shall be pumped into the steamer at the expense of the charterers and at the risk and peril of the charterers. * * ® The cargo shall be pumped out of the steamer at the expense of the steamer, but at the risk and peril of the steamer only so far as .the steamer’s rail, into the consignee’s pipa line or into lighters lying alongside. * * * ”
“(11) The act of God, perils of the seas, rivers and navigations, * * * stranding and other accidents of navigation excepted, even when occasioned by negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners. Ship not answerable for loss through * * * any latent defect in the machinery or hull not resulting from want of due diligence by the owners of the ship, or any of them, or by the ship’s husband or management.”
“(18) The owners in all matters arising under this contract shall also be entitled to the like privileges and rights and immunities as are contained in sections 2 and 5 of the Carriage of Goods by Sea Act 1924, and in article 4 of the schedule thereto.”
“(21) The steamer shall not be accountable for leakage, nor for any consequences arising from charterers shipping different kinds or quantities of creosote oil.”

The material parts of the Sea Act (English) and Schedule referred to in clause 18 of the charter are:

“Sec. 2. There shall not be implied in. any contract for the carriage of goods by sea [358]*358to which the rules apply any absolute undertaking by the carrier of the goods to provide a seaworthy ship.”
“See. 5. Where under the eustom of any trade the weight of any bulk cargo inserted in the bill of lading is a weight ascertained or accepted by a third party other than the carrier or the shipper and the fact that the weight is so ascertained or accepted is stated in the bill of lading, then, notwithstanding anything in the rules, the bill of lading shall not be deemed to be prima facie evidence against the carrier of the receipt of goods of the weight so inserted in the bill of lading, and the accuracy thereof at the time of shipment shall not be deemed to have been guaranteed by the shipper.”

Article 4 of the Schedules:

“1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness, unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the hold, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph I of .article III.
“Whenever loss or damage has resulted from unseaworthiness, the burden of proving the,exercise of due diligence shall be on the carrier or other person claiming exemption under this section.
“2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
“(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management •of the ship. * * *
“(e) Perils, dangers and accidents of the sea or other navigable waters. * * *
“(i) Act or omission of the shipper or owner of the goods, his agent or representative. * * *
“(m) Wastage in bulk or weight or any other loss or damage arising from inherent defeet, quality, or vice of the goods. * * * “(p) Latent defects not discoverable by due diligence.
“(q) Any other cause arising without the actual fault or privity of the carrier, or with-, out the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show-that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”

A cargo of about 6,000 tons (stated in the bill of lading as 6,019 tons) of creosote was pumped into the tanks of the Massasoit at Antwerp, commencing at 12:40 p. m., November 26, 1925, and ending at 1 a. m., November 28, 1925. On arrival at the port of New York on December 18, 1925, all the pumpable cargo was delivered into the libel-ant’s shore tanks. Shortly thereafter it was discovered that there was 6 to 12 inches of sediment in the bottom, and an average of 2 inches thereof on the sides, of the Massasoit’s tanks, the sediment being harder nearer the skin of the ship. This sediment (in weight about 135 tons), removable by manual labor only, and mainly with pick and shovel, was put on the decks of the Massasoit and delivery thereof tendered to the libelant, who refused it.

The respondent contends that this residue accounts for the total shortage, and libelant concedes that, except for it, there probably would have been no shortage.

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Bluebook (online)
28 F.2d 356, 1928 A.M.C. 1458, 1928 U.S. Dist. LEXIS 1485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-creosoting-co-v-deutsche-petroleum-aktien-gesellschaft-njd-1928.