The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a suit for cargo damage.
At all the times hereinafter mentioned and at the time of the trial, the libelant was a resident of the borough and county of Queens, city and state of New York.
At all the times hereinafter mentioned, the steamships President Jackson and President Jefferson were owned by the respondent, United States of America, and employed as merchant vessels.
On or about the 21st day of April, 1925, the libelant commenced an action on the law side of this court against the United States Shipping Board Emergency Fleet Corporation, the Admiral Oriental Line, and Northern Pacific Railway Company, 8 F. Supp. 123.
That case was not brought on for trial but was, when reached for trial, marked "off," as respondent contends because of unexecuted letters rogatory issued to Japan.
On January 6, 1930, the United States Supreme Court decided Johnson v. Fleet Corporation, 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451, holding that in actions against the United States of this character, the Suits in Admiralty Act (46 USCA § 741 et seq.) furnished an exclusive remedy in admiralty.
No proceedings were taken in that action, and, on the general calendar call ordered by the court, on March 1, 1930, that case was, on the court's own motion, pursuant to rule 28 of the General Rules of Practice of this court, dismissed without prejudice, because of failure to take any proceedings in that action since December 31, 1928, and an order to that effect entered on March 6, 1930.
A motion was thereafter made by the plaintiff originally returnable on May 7, 1930, on which day it was submitted, all papers by May 14, 1930, for a modification of the order of dismissal as against the defendants Admiral Oriental Line and Northern Pacific Railway Company, as to whom the Supreme Court decision in Johnson v. Fleet Corporation, supra, might not apply, and, by order entered June 2, 1930, the court vacated the order of dismissal as against the said defendants Admiral Oriental Line and Northern Pacific Railway Company.
This suit is alleged to be maintained pursuant to the Act of Congress approved March 9, 1920, 41 Stat. 525, entitled "An Act Authorizing suits against the United States in admiralty, * * *" as amended June 30, 1932, chapter 315, 47 Stat. 420 (46 USCA § 741 et seq.), as against the United States, it being based upon a cause of action on which an action at law had been commenced April 21, 1925, against the United States Shipping Board Emergency Fleet Corporation et al. The said act of June 30, 1932 (46 USCA § 745), amending section 5, reads as follows:
"Suits as authorized in this chapter shall be brought within two years after the cause of action arises: Provided further, That the limitations in this section contained for the commencement of suits hereunder shall not bar any suit against the United States or the United States Shippint Board Merchant Fleet Corporation, formerly known as the United States Shipping Board Emergency Fleet Corporation, brought hereunder on or before December 31, 1932, if such suit is based upon a cause of action whereon a prior suit in admiralty or an action at law or an action under subdivision (1) of section 250 of Title 28, was commenced prior to January 6, 1930, and was or may hereafter be dismissed because not commenced within the time or in the manner prescribed in this section, or otherwise not commenced or prosecuted in accordance with its provisions: Provided further, That such prior suit must have been commenced within the statutory period of limitation for common-law actions against the United States cognizable in the Court of Claims: Provided further, That there shall not be revived hereby any suit at law, in admiralty, or under subdivision (1) of section 250 of Title 28 heretofore or hereafter dismissed for lack of prosecution after filing of suit."
On or about August 16, 1924, at Yokohama, K. Kobayshi shipped on board the steamship President Jackson 260 cases containing lily bulbs, of which he was the owner, in apparent good order and condition, consigned and to be delivered unto order, at New York, N.Y. Notify Messrs. Henry & Lee, 97 Water street, New York, N.Y., which in consideration of a certain agreed freight paid or agreed to be paid by said K. Kobayshi, were accepted as in apparent good order and condition, and a bill of lading issued, which bill of lading contained the following exception:
"It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned . . . for or by hearing . . ."
The said bill of lading also contained the following provision:
"No claim arising under this Bill of Lading is valid unless made in writing by consignees to carrier's agent at the port of discharge, if for matters discoverable in all or in part without opening the packages before removing the goods from the dock, or if for matters discoverable only by opening the packages within ten days from the delivery thereof, or if for nondelivery of the goods, within twenty days after discharge of vessel, or her departure from port of delivery."
The steamship President Jackson had had boiler trouble and had undergone repairs, which, in the opinion of the surveyor of the American Bureau of Shipping, then in Yokohama, rendered the said vessel seaworthy, and the owner of said vessel had, before the said vessel sailed, used due diligence to make her seaworthy.
The lily bulbs were packed in Japanese white wood boxes, newspapers being placed therein so that the dirt would not get out, and the bulbs were packed in dirt supposed to be particularly suited to that use, then covered with newspaper, and the wooden cover placed on the box.
On or about the 19th day of August, 1924, the said steamship President Jackson sailed from Yokohama for Seattle, state of Washington, United States of America, with the said cargo laden thereon. About five or six days after leaving Yokohama, the steamship President Jackson again met with boiler trouble and put back to the port of Yokohama where she arrived on the 25th day of August, 1924.
The cargo was then taken to the steamship President Jefferson in covered lighters, and was, when received, in apparent good order and condition, and was not loaded during showers or rain.
In all there were 2,598 cases of lily bulbs shipped by various shippers on the steamship President Jackson and stowed in lower holds 2, 3, and 7, of which 1,683 cases were ...