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THE WEST ARROW

March 28, 1935

THE WEST ARROW; MUIR et al.
v.
AMERICAN DIAMOND LINES, Inc.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

The above-entitled suits were brought against the steamship West Arrow and her owner, American Diamond Lines, Inc., to recover for loss of and damage to cargo alleged to have been caused by the stranding of the West Arrow, off Fort McHenry, Baltimore, Md., on November 9, 1933. A hole was stove in the bottom of the West Arrow, which permitted the entry of a large quantity of water into the compartment in which libelant's cargo was stowed, causing a total loss to some of the shipments and serious damage to the remainder.

The two suits were consolidated for the purpose of trial, and were tried before me, and I held the West Arrow and her owner liable for the loss. The West Arrow (D.C.) 7 F. Supp. 827.

 An interlocutory decree was entered on July 21, 1934, referring the matter to a special commissioner to ascertain and compute the amount of the libelant's damages as well as those of Bisbee Linseed Company and E. J. O'Brien & Co.; counsel having agreed that the last two mentioned claims should abide the result of the court's decision on the merits.

 The interlocutory decree provided "that upon proof of libelants' title or authority to sue, and of the compliance with the requirements of the bill of lading notice clause, or the waiver thereof, or the inapplicability of the provisions of said clause, that the libelants recover" their damages from the West Arrow and the respondent herein.

 The proctors for the respective parties have been able to agree on the provable damages of the libelants, subject to reservations as to certain questions which have been left to the court for determination, and therefore have found it unnecessary to go before the commissioner.

 The proctors for the respective parties have agreed upon a stipulation which, with the stipulation offered at the trial dealing with the same issue, embodies all of the salient facts; nothing having any relevance having been omitted from the stipulation.

 The proctors for the steamship West Arrow and respondent have conceded "that the libelants have established sufficient proof of their authority to institute and maintain these suits, and waives any proof by the libelants as to their legal title to the goods."

 This disposes of the first condition imposed by the interlocutory decree. The amounts of libelants' respective losses have also been stipulated, and are as follows: Cargo General Damage Av. Deps. Bisbee Linseed Co., Guilders 9,594.48 $1,796.92 Muir & Company, 2,927.99 Gieske & Nieman, $5,870.65 Wm. H. Winstead Co., Inc. $4,001.21 Henry Lauts & Co., $1,588.83 (Docket No. 14019) Ford Motor Co., 6,644.23 E. J. O'Brien & Co., 300.00 Edwin A. Dinnsen, 5,537.43 $485.08 Henry Lauts & Co., (Docket No. 14056) 1,170.13 54.60

 Under the stipulation, the following three points are left to the court to decide:

 (1) Have the libelants, Bisbee Linseed Company, Ford Motor Company, Edwin A. Dinnsen, and Henry Lauts & Co. established compliance with the requirements of clause 11 of the biils of lading of the claimant and respondent, which provides that written notices of claim and written claims must be filed within designated periods?

 The question of compliance with clause 11 of the bills of lading was expressly left open at the trial, and it was agreed that, as a condition procedent to the entry of a final decree in its favor, each libelant must establish compliance with clause 11 or show that the clause was waived or was otherwise inapplicable.

 It is conceded that all of the libelants, except the four above mentioned, have complied with the clause, and that as to the libelant Henry Lauts & Co., which had two shipments aboard the steamship West Arrow, they have complied with the clause as to one shipment (docket No. 14019), but, as claimant contends, not as to the other (docket No. 14056).

 (2) What is the proper rate of exchange to adopt in converting into dollars the damages of libelants Bisbee Linseel Company and Muir & Co., which were calculated in guilders?

 Only in the event that it be found that the Bisbee Linseed Company has established compliance with clause 11 with this question arise as to it.

 (3) What interest, if any, are the libelants Bisbee Linseed Company, Edwin A. Dinnsen, and Henry Lauts & Co. entitled to on their cash deposits, given to secure any contributions that were found due from them in general average?

 Clause 11 of the bills of lading reads as follows: "Notice of claim for loss, damage, or delay must be given in writing to the vessel's agent within thirty (30) days after the removal of the goods from the custody of the vessel, or, in case of failure to make delivery, within thirty (30) days after the goods should have been delivered; provided, that written notice of claim for apparent loss or damage must be given before the removal of the goods. Written claim for loss, damage, or delay must be filed with the vessel's agent within thirty (30) days after giving the notice herein provided for. Unless notice is given and claim filed as above provided, neither the vessel, her owner, nor agent shall be liable. No suit to recover for loss, damage, delay, or failure to make delivery shall be maintained unless instituted within six months after the giving of written notice as provided herein."

 Each of the four libelants aforesaid must show compliance with the notice clause as a condition precedent to its or their recovery.

 No authorities need be cited to sustain that determination.

 We are not concerned with that portion of the clause providing for the commencement of suits within six months, and will disregard it, as that is not involved in these suits.

 Two conditions precedent are provided by clause 11, as follows: (a) "Written notice of claim" must be given to the vessel's agent within 30 days after the goods should have been delivered, where there has been a failure to make delivery, or before the removal of the goods, where the loss or damage is apparent on discharge from the vessel; (b) "written claim for loss" or damage must be filed with the vessel's agent within 30 days after giving the notice above provided for.

 No consideration need be had as to Bisbee of that portion of the clause providing for notice of claim 30 days after the removal of the goods from the custody of the vessel, as that refers to concealed damage, and the damage here was apparent, the West Arrow's No. 1 hold having been almost completely flooded with water after the stranding.

 Notice clauses, as was said by the Circuit Court of Appeals of this circuit, in Dibrell Bros. v. Prince Line, Ltd., 58 F.2d 959, 961, "are harsh at best and should not receive a broad construction."

 The bills of lading were drawn by the carrier, and should receive strict construction against the carrier. Gelderman v. Dollar S. S. Lines, Ltd. (D.C.) 41 F.2d 398; Mynard et al. v. Syracuse, etc., R. Co., 71 N.Y. 180, 27 Am. Rep. 28.

 The Circuit Court of Appeals of this circuit has also said, in Stiles v. Ocean S.S. Co. (C.C.A.) 34 F.2d 627, 629, in construing a notice clause: "The purpose of the provision was 'not to escape liability, but to facilitate prompt investigation.'"

 See, also, The Persiana (C.C.A.) 185 F. 396.

 We will now consider the question of compliance with clause 11 as to each of the four libelants whom claimant contends did not comply therewith.

 1. Bisbee Linseed Company. -- This libelant's cargo consisted of linseed cake, which was delivered at Rotterdam and Antwerp in a damaged condition.

 Notice of claim was given by the agent of Bisbee Linseed Company to the agent of the vessel West Arrow, in writing, before the cargo of the Bisbe Linseed Company was removed from the pier, at the respective points of discharge, in damaged condition. This showed compliance with the first part of the clause providing for notice of claim.

 No other written notices or claims were filed with the vessel's agent.

 Claimant contends that no written claim was ever filed with the vessel's agent, and libellant contends that the paper filed before the removal of the goods was both a notice of claim and a claim.

 Exhibit A attached to the stipulation, in so far as is necessary for consideration, reads as follows: "In the name of the holders of the Bsœ for For Antwerp: Bœ 02 1860 bags, weighing 684,076 lbs. Bœ 03 1865 bags, weighing 684,634 lbs. Bœ 04 620 bags, For Rotterdam Bœ 04 1235 bags, weighing 682,163 lbs. Bœ 05 1860 bags, weighing 692,516 lbs.

 American linseed oilcake, brand Bisbee, shipped by the above-named steamer to this port and Antwerp, I have to hold you hereby responsible for the damage, caused to part of this merchandise, and consequently reserve all rights of the holders of the Bsœ and/or further interested parties for indemnification of this damage.

 " Furthermore, I confirm hereby that Mr. M. H. C. van Andel C. Mzn., broker, surveyor, has been indicated by you in the name of the Owners, as your expert, with whom I shall fix the amount of this damage and whose taxations of the damage will be considered to have been made as though this were a judicial survey. For regularity sake, I request you to acknowledge receipt of the present and remain. * * *"

 So much of Exhibit B as is necessary for consideration reads as follow:

 "In the name of Underwriters and Importers of a parcel of American Linseed cakes, marked 'Bisbee', shipper per the abovementioned vessel, I have to protect their interests and I beg to inform you that this vessel will leave this port tomorrow for Antwerp with 2784 sound and 1561 damaged bags linseed cakes. The latter have been stowed on deck and we do not doubt, but the consignees ...


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