Standard Brands v. Nippon Yusen Kaisha, 42 F. Supp. 43 (D. Mass. 1941)

*44 Edward A. Neiley, of Boston, Mass., for libelant.

Arthur J. Santry and Frederick Fish of Putnam, Bell, Dutch & Santry, both of Boston, Mass., for respondent N. Y. K.

Elliott F. Cameron, of Willard, Allen & Mulkern, of Boston, Mass., for respondent Boston Terminal.

SWEENEY, District Judge.

This is an action in admiralty in which the libelant seeks to recover for damage to a consignment of tea resulting from water seeping through several of the tea chests while they were stored in a warehouse in this city. The respondent denies liability. The action as to the respondent Boston Tidewater Terminal, Inc., has been discontinued. It has been stipulated by the parties that, if liability exists, damages are to be awarded in the sum of $295.20.

Five hundred chests of tea were received aboard the vessel S. S. "Arima Maru" in good condition in Japan for shipment to the port of Boston. The goods were discharged from the vessel at Boston in the same good condition. The bill of lading provided, in substance, that the goods might be discharged as soon as the ship was ready to unload by being placed on the wharf or warehouse at the sole risk of the consignee.

The S. S. "Arima Maru" arrived at the Army Base Pier, Boston, on the morning of November 3, 1939, and immediately began unloading. Notice of its arrival was sent to the libelant that day. The unloading, which was conducted by stevedores employed by agents of the respondent, was not completed until 11 A. M. the following day, which was a Saturday. The consignee was not present or in any way represented at the unloading operations. The tea was placed in a storage shed on the wharf, the use of which was provided to the respondent for six days without storage charge as an incident to their docking accommodations. The tea was placed on the floor of the shed about two feet away from a sliding door which was some twenty-five feet wide, and which opened out onto the wharf facing north. This door opened and closed by sliding it up and down. Due to some defect, it could never be completely shut, so that when it was pulled down as far as it would go there remained a gap about two inches wide between the bottom of the door and the floor. The only protection beneath libelant's cargo, separating it from direct contact with the floor, was a thin layer of sawdust. The damage to libelant's tea was occasioned by a large quantity of water seeping underneath the door during a storm on the night of Sunday, November 5th. The wind, blowing from the northeast during a heavy rainstorm, was one of the severst ever recorded in Boston, reaching a velocity at one time of fifty-six miles per hour. Efforts were made to stop the seepage of water by placing sawdust bags along the bottom of the door, but without success. On other occasions water had leaked underneath this door.

Respondent contends that it cannot be held liable, first, because its liability as a common carrier had terminated under the terms of the bill of lading; second, because there was no negligence on its part causing the damage; and, third, because the damage was the result of an "act of God".

There is no question but that, under the bill of lading involved, the respondent's liability as a common carrier had ceased on discharge of the cargo from the ship. Constable v. National Steamship Co., 154 U.S. 51, 14 S. Ct. 1062, 38 L. Ed. 903. Nevertheless, where the consignee is not present to accept immediate delivery of the goods, regardless of the form of the contract of carriage, the carrier cannot exempt itself from its negligence in exposing goods to loss or damage after discharge from its ship. This was recognized in the Constable case, supra, where the court said, 154 U.S. at page 67, 14 S.Ct. at page 1069, 38 L.Ed. 903: "Had this cargo been discharged * * * so that it was exposed to the weather or to any unusual hazard, and a loss had been incurred, we should not have hesitated to hold the carrier liable, notwithstanding the stipulation against the consequence of negligence in its bill of lading." Compare: Bank of Kentucky v. Adams Express Co. 93 U.S. 174, 23 L. Ed. 872. Until receipt by the consignee, the carrier, despite any terms to the contrary in its bill of lading, continues to hold goods unloaded by it as a bailee. Or, as some cases have put it, where, by the terms of the bill of lading, *45 the contract of carriage terminates on discharge of the cargo from the ship, its liability changes from that of a common carrier to that of a warehouseman, and, as such, it is bound to exercise ordinary care in the protection of the goods. The Italia 2 Cir., 187 F. 113; The Boskenna Bay, C.C., 40 F. 91, 6 L.R.A. 172; Smith v. Britain S. S. Co., D. C., 123 F. 176; The City of Lincoln, D.C., 25 F. 835; and compare: De Grau v. Wilson, D.C., 17 F. 698, affirmed, C.C., 22 F. 560. In the Italia, supra [187 F. 114], the court said: "The provisions of the bill of lading are the same as those which were considered in Constable v. National S. S. Co., 154 U.S. 51, 14 S. Ct. 1062, 38 L. Ed. 903. The liability of the carrier as carrier ceased with discharge at a proper pier, and he can be held only for negligence in caring for the goods until the consignee comes to remove them." Of course, where the loss would not have occurred except for the negligence of the consignee in failing to remove his goods promptly, he cannot then be heard to charge the carrier for their loss. Smith v. Britain S. S. Co., supra.

The libelant was not negligent in failing to seasonably remove its shipment of tea. The unloading operation continued until almost noon on Saturday, and it was not unreasonable for the consignee to wait over the weekend before coming to get its goods since they were not perishable, and it probably knew that the respondent was allowed six days free use of the storage sheds on the wharf where the ship docked.

On the other hand, placing the tea on the floor within two feet from a door which could not be properly closed, and under which water had leaked on previous occasions, was certainly not exercising the degree of ordinary care which would be expected of any warehouseman or bailee for hire. Heavy rains are to be expected at the time of year when this damage occurred. A reasonable amount of precaution in blocking the gap under this door, or placing elevating supports under these chests, or placing them far enough away from the door so as to be free from seepage water, would have prevented the damage.

From the foregoing I find and rule that the respondent was negligent in failing to properly care for the libelant's consignment of tea. The libelant is entitled to recover from the respondent the sum of $295.20.

The contention of respondent that the damage was occasioned by an "act of God" is without merit, since, as was said in The Adventuress, D.C., 214 F. 834, 839: "Such a defense cannot be successfully made where the injury could have been avoided by precaution." Compare: The Majestic, 166 U.S. 375, 17 S. Ct. 597, 41 L. Ed. 1039; Hecht v. Boston Wharf Co., 220 Mass. 397, 107 N.E. 990, L.R.A.1915D, 725, Ann.Cas.1917A, 445.