The Commercial Guide , 24 F.2d 868 ( 1928 )

CAMPBELL, District Judge.

This is a cargo damage suit. Tbe cargo in question, consisting of 460 bundles containing 81 squares of slate in each bundle, was shipped by tbe libelants by rail over tbe Delaware & Hudson Company Railroad, at West Paw-let, Yt., on November 15,1922, to D. E. Fryer, Seattle, Wa§h., and, pursuant to tbe terms and conditions of said bill of lading, tbe said cargo of slate was, on November 27, 1923, at New York City, transshipped to tbe steamship Commercial Guide, of which Moore & McCormack Company, Inc., was general agent.

Between January 20 and 24, 1924, tbe said steamship Commercial Guide arrived at Seattle, Wash., and discharged tbe said cargo of slate, much of it being in a badly damaged condition.

Tbe good order and condition of tbe slate on delivery to tbe railroad ear in shipper’s yard was proven, and a clean receipt was received from.tbe railroad.

Tbe good order and condition of tbe slate alongside tbe steamer is shown by the clean receipt of tbe steamship company to the railroad.

Tbe slate was packed by tbe Signode method, instead of being packed in crates, and tbe sufficiency of package was proved by libelants’ witnesses, as it seems clear to me that tbe method used was safer than tbe method of packing in crates.

No proof was offered on behalf of tbe ship to show that tbe packages were insufficient, and tbe claimant has not brought tbe damage within any exception of tbe bill of lading. Tbe burden therefore rested upon tbe carrier to explain and excuse tbe damage, and tbe libelant was not hound to point out tbe ship’s negligence in the care and custody of tbe cargo. Littlejohn v. Ellerman, 1927 A. M. C. 161; Kuhnhold v. Netherlands-American Steam Nav. Co. (C. C. A.) 264 F. 320, 322; The Rosalia (C. C. A.) 264 F. 285; Compania Naviera Mexicana v. Sporl (C. C. A.) 11 F.(2d) 777; The Folmina, 212 U. S. 354, 361, 363, 29 S. Ct. 363, 53 L. Ed. 546, 15 Aun. Cas. 748.

The claimant rests heavily on tbe alleged defense of failure on tbe part of tbe libelants to present claim.

Not only the terms of the railroad bill of lading, but all tbe terms of tbe ocean bill of lading, form part of tbe contract of carriage and bind both of tbe parties, and article 13 of tbe ocean bill of lading reads as follows:

“13. Also tbe carrier, ship, or representative shall not be liable for negligence or otherwise, as carrier, bailee, or otherwise, for any. claim or demand for short delivery of, or damage to, the property hereby receipted for, unless presented within Iten days after the ship has finished discharging, to the master of the ship or the ship’s agent at port of discharge, nor for any other claim or demand hereunder, or for or in respect of the said property or the care, carriage, delivery, or disposition thereof, unless presented in writing to the carrier or its agent at port of shipment or port of discharge, within ninety days from the issuance of this bill of lading.”

The first portion, providing for giving notice of claim, within ten days after the ship has finished discharging, is applicable to this ease, and is a reasonable and valid stipulation, not inconsistent with sound public policy. The General G. W. Goethals (D. C.) 296 F. 935; The Lake Gaither (D. C.) 21 F.(2d) 83.

Clauses requiring notice in less than ten days have been held valid. Persiana (C. C. A.) 185 F. 396; The St. Hubert (C. C. A.) 107 F. 727; The Susquehanna (C. C. A.) 296 F. 461; The Sagadahoc (D. C.) 291 F. 920; The Hesione, 1927 A. M. C. 1660; The Verdi (C. C. A.) 282 F. 572.

The Commercial Guide finished discharging by January 24, 1923.

The notice of claim was not required to be in writing, but it was not sufficient that the carrier be apprised of the damage, but it must also have been notified of the intention to hold it liable. The Westminister (C. C. A.) 127 F. 680; The San Guglielmo (C. C. A.) 249 F. 588; The Hesione, supra.

Although neither Mr. Brooks nor Mr. Fryer could give the name of the man with whom they examined the slate' on the pier, and to whom they gave notice of claim, and not only of the damage but of their intention to hold the carrier for damage, such man was found by them in the office on the pier of Walker-Ross, Ine., who on the trial were shown to be the agents of the ship' at Seattle.

That the man with whom they dealt was a representative of Walker-Ross, Ine., seems to be apparent from all that followed. That Mr. Fryer had a conversation over the telephone with some one in authority in Walker-Ross,' Ine., as testified by him, although he could not give the name of the person, is shown to be beyond question by the letter addressed to Messrs. D. E.' Fryer & Co., by Walker-Ross, Ine., dated January 23, 1923. That Mr. Fryer wrote a letter to Walker-Ross, Inc., on January 24, 1923, as testified by him, dearly appears from the letter of Walker-Ross, Ine., to Messrs. D. E. Fryer & Go., attention of D. E. Fryer, dated January 26, 1923.

The letter last mentioned and the letter dated January 29, 1923, written by Walker-Ross, Ine., to Messrs. D. E. Fryer & Co., attention of Mr. Fryer, clearly show that a claim had been made, and that Walker-Ross, Inc., rejected the same.

The testimony of Mr. Brooks and Mr. Fryer, taken by deposition, coupled with the letters, convinces me that a claim was made by D. E. Fryer & Co. before January 29, 1923, within ten days after the ship had finished discharging her cargo, and that D. E. Fryer & Co. were the agents of the libelants, vested with authority to make the claim.

The statement of Brooks and Fryer, on cross-examination, by deposition, that they never filed a claim, of which the claimant makes much of a point, seems from all of their testimony clearly to mean that they never filed a written claim, but simply presented an oral claim, leaving to the libelant the prosecution thereof.

A decree may be entered in favor of the libelants, with costs, and the usual order of reference.