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

204 F.2d 384

• Court: Court of Appeals for the Third Circuit
• Decided: May 20, 1953
• Docket: 10949_1
• Status: Published

Opinions

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.¹

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.²

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 * * * ”³ 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 * * * he * * * 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.⁴ We were given reference to the Carriage of Goods by Sea Act, 46 U.S.C. § 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.⁵ 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 proprietor of the pier for allowing goods to remain there has nothing whatever to do with the question whether a carrier has used reasonable care in discharging goods from his ship.

In this case we disagree with the learned judge who concluded that the carrier had been guilty of negligence. The general test is, of course, the conduct of a reasonable man under the circumstances, and in that test the value of the interest to be protected and the risk of harm are elements to be considered.⁶ Here are the considerations which wc think establish freedom from negligence on the part of the carrier:

The consignee was notified of the arrival of the goods and had removed a very substantial portion of them. He could have removed the remainder had he chosen to pay premium time for the help required. The pier was, on the land side, surrounded by a cyclone fence. The gates which admitted freight cars were kept closed all the time except when in actual use in the passage of trains. The gate available to ingress and egress of trucks was manned by both employees of the pier and United States Customs. Drivers had to have a pass to enter. Trucks coming in full were inspected as they went out claiming to be empty. The pier was constantly patrolled by pier employees. While it is true that they rather carefully stated they were fire guards only, it was admitted that if anyone was creating a disturbance at night removing goods they would find it out without doubt. In fact the pier manager testified that even if someone appeared at the pier at midnight in a small boat and removed goods, the guards would see and report it. The head of the watching crew was armed at the time of the events herein considered. On the water side there were two steel metal walls at either end of the pier which opened from the inside only, and could be forced open from the outside only by a “fork-lift truck.” As we understand the facts, there was an open space toward the water and accessible from there only.

This freight was bulky. It suffered no danger from exposure to weather, obvious-

ly. It could be removed only by use of an apparatus described by one of the witnesses as a “half lift truck with a scoop on the front of it.” Testimony on behalf of the steamship company’s local agent indicated that when there was a shipment lying on the pier which could be easily broken into the company provided a watchman until it was removed. For bulky freight of this type he admitted that it did not.

Our conclusion upon consideration of these facts is that there was no negligence on the part of the carrier in allowing this material to remain on the pier without a special guard. We think the risk that anybody would come in either over the fence, through the gate, or from the water and remove these heavy objects undetected was so slight as to be negligible.⁷

The judgment of the district court will be reversed and the case remanded with direction to enter judgment for the respondent.

1 . The brief filed on behalf of the libellant suggests that proof was insufficient to establish the discharge of all the goods consigned to North American. The district court, however, made a specific finding that the goods were discharged from the ship to the pier. We have examined the testimony supporting the finding and agree with the finding made by the trial judge.

2 . The Appellant raises the question whether- this suit is cognizable in admiralty although he does not press the point very hard. We think it is. Ex parte Easton, 1877, 95 U.S. 68, 24 L.Ed. 373; The Eddy, 1866, 5 Wall. 481, 72 U.S. 481, 18 L. Ed. 486.

3 . The court was advised that this is a common form of bill of lading in shipments from foreign countries but there is no evidence or finding to that effect.

4 . 46 U.S.C.A. § 190 provides: “It shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect.”

5 . The Eddy, 1866, 5 Wall. 481, 495, 72 U. S. 481, 495, 18 L.Ed. 486; Galveston Wharf Co. v. Galveston, Harrisburg & San Antonio Ry. Co., 1932, 285 U.S. 127, 132-134, 52 S.Ct. 342, 76 L.Ed. 659.

6 . Bestatement, Torts, § 284: “Negligent conduct may be * * *; (a) an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another * *

§ 291(1): “Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.”

§ 293: “In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:

“(a) the social value which the law attaches to the interests which are imperiled ;

“(b) the extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;

“(c) the extent of the harm likely to be caused to the interests imperiled; and

“(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.”

7 . In Home Insurance Co. v. Philadelphia Piers, Inc., D.C.E.D.Pa.1951, 100 F.Supp. 348, 349, Judge Kirkpatrick held that the same pier involved here (98) “had a good reputation with shipping companies and the protection which it offered to goods stdl-ed in it was in every way adequate.” Consequently damage by rain to cargo discharged there imposed no liability on the carrier, which was entitled to rely on the physical condition and reputation of the pier as a safe place to leave goods.