Armand Schmoll, Inc. v. Commonwealth & Dominion Line, Ltd.

230 A.D. 430, 245 N.Y.S. 224, 1930 N.Y. App. Div. LEXIS 8631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1930
• Status: Published

Opinions

McAvoy, J.

Plaintiff sues, as a consignee of certain green, salted hides, defendant shipping line for damages occurring to the cargo carried on defendant’s ship, the Port Hardy, from Townsville, Australia, to Antwerp, Belgium.

The hides were sent forward August 19, 1925, and arrived at Antwerp on February 5, 1926, nearly six months after shipment. The approximate normal time for this transit by sea is four months.

The defense to the suit is that a strike was in progress at Bowen, Australia, a port of call and loading, for nearly two and one-half months, and that this strike caused the delay of the vessel. Since the bill of lading exempts defendant from damage due to strikes, defendant asserts that it is not responsible for the deterioration and decay of the green, salted hides.

The jury found a verdict in favor of the defendant.

Plaintiff contended at the trial that the defendant was negligent in not taking action to avoid the damage while the vessel was unable to proceed from the port of Bowen. There was proof covering this issue of negligence on the parts of plaintiff and defendant, which the jury heard and resolved.

We think, however, that the failure of defendant to protect the cargo during the delay was so fully shown by the plaintiff’s proof that the verdict of the jury must have been brought about by a misunderstanding of the nature of plaintiff’s duty with respect to proof, or some erroneous instruction from the court. This proof shows that defendant was negligent in failing to notify the owner of the merchandise of the delay at Bowen, so that he might take measures to protect his goods in case defendant did not do so through its ship’s officers. The officers and crew were negligent during the delay in that they did not at any time open the hatch covers where plaintiff’s hides were stowed to permit ventilation, which was necessary for the protection of the cargo while the ship was at anchor. Nothing was done at Bowen to see whether or not the hides had been injured during the delay, by inspection or handling, although such inspection and proper handling could have been had there while the vessel’s journey was interrupted. Although the stevedores were not on strike and did not refuse to handle cargo, they were not directed by the ship’s officers to handle, unload or resalt the hides during the delay.

The steamer, although it docked from August twentieth to September fifteenth, did not discharge the hides so that they could be shifted and resalted on the wharf.

The cargo officer, who supervised the stowage of the cargo, was shown to be incompetent, inefficient and ignorant of handling hides and perishable cargo, and testified that, even though he had had salt available for the use of the hides, he would not have known how to use it. No effort was made by him to secure salt.

At London, to which the steamer proceeded, the hides were transferred to the steamship Port Curtis and they were stowed in the after part of a hold adjacent to a fire bulkhead which separated the engine and boiler room from this hold, which submitted the hides to excessive heat, and probably increased their deterioration in quality.

This proof would support a finding that the officers and crew were guilty of acts which constituted negligence of a carrier of perishable cargo. The proof indicated that all the officers did was to let the cargo decay in the vessel while it lay at Bowen. Although cargo vessel’s officers should be competent to supervise the stowage of such cargoes as they undertake to carry, even if they were not so informed, they could have communicated with plaintiff and received instructions as to how to handle the cargo in the emergency. The strike does not justify abandoning the cargo. The vessel’s officers must do that which a reasonable person in charge of such a cargo, under such circumstances, would do to preserve the cargo from destruction or deterioration. What is required of a carrier is that in an emergency his agents must exercise a reasonable amount of skill and diligence, and do all that is reasonable and practical to insure the safety of the goods. A shipowner will not be relieved from liability because of an exemption in his bill of carriage, where there has been neglect on the part of his officers and crew to take such steps as would be likely to avoid damages, to guard against their effects, or arrest their consequences. Nothing was done here by the carrier to protect the cargo when the strike disabled the vessel from proceeding, and thus the carrier did not guard against the effects of allowing these perishable goods to deteriorate, nor to arrest the consequences of leaving them without some sort of preservation. Negligence was thus fairly established, and the shipping Une was hable, notwithstanding the exemption; and this should have been found by the jury.

While there are several other errors which involve the admission of improper testimony, and erroneous instructions or failure to give proper instruction to the jury, we think that on a new trial these may be avoided, and, therefore, they are not adverted to herein.

We conclude that the proof is such that a finding against the plaintiff’s evidence was erroneous, and that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dowling, P. J., Martin and O’Malley, JJ., concur; Finch, J., dissents.