The opinion of the court was delivered by: ABRUZZO
The libel and complaint of the Weyerhaeuser Timber Company was originally brought against the tank steamer W. W. Bruce, Continental Steamship Company, and Continental Oil Company. The Weyerhaeuser Timber Company and other shippers were the owners of certain lumber laden on the steamship San Vincente. The San Vincente collided with the steamship W. W. Bruce, causing serious damage to the cargo owned by the Weyerhaeuser Timber Company and other shippers, totaling some 146.
The collision between the steamship San Vincente and the tank steamer W. W. Bruce occureed on October 13, 1934, in Craighill Channel while the San Vincente was on its way from the port of Baltimore bound for Norfolk, Va. The lumber cargo on the San Vincente consisted of 2,005,000 feet of lumber.
The tank steamer W. W. Bruce impleaded the Pacific-Atlantic Steamship Company and the steamship San Vincente, the Pacific-Atlantic Steamship Company being the owner of the steamship San Vincente. The Pacific-Atlantic Steamship Company as the owner and the San Vincente then impleaded the Weyerhaeuser Timber Company together with the other 146 libelants.
Under this impleader by the Pacific-Atlantic Steamship Company and the San Vincente, it was claimed by the Pacific-Atlantic Steamship Company and the San Vincente that clause VII of the bill of lading provided reimbursement to them by the libelants, the Weyerhaeuser Timber Company, et al., for any damage which the Pacific-Atlantic Steamship Company and the San Vincente were compelled to pay the W. W. Bruce and Continental Steamship Company et al.
The motion before the court is the exceptions of the Weyerhaeuser Timber Company et al. to the petition filed by the Pacific-Atlantic Steamship Company and the steamship San Vincente. The exceptions assign many reasons why the petition of the Pacific-Atlantic Stesmship Company and the San Vincente should be expunged from the record.
The most important exception is in relation to clause VII of the bill of lading of the San Vincente, which reads as follows: "If the shipowner shall have exercised due diligence to make the ship seaworthy and properly manned, equipped and supplied, it is hereby agreed that in the event of the ship coming into collision with another ship as a result of negligent navigation of both ships, the owners of the cargo carried under this bill of lading will indemnify the shipowner against all liability to the other ship or her owners in so far as such liability represents loss, damage or claim of said cargo paid or payable, by the other ship or her owners, and set off, recouped or recovered by the other ship or her owners as part of their claim against the carrying ship or shipowner."
The important question with relation to this clause is whether or not it comes within section 3 of the Harter Act (46 U.S.C.A. § 192); and, secondly, whether this clause is against public policy. The exceptions also contend that clause VII in the bill of lading is a contract of insurance and therefore void because of that.
Other questions are raised by the exceptions:
(1) That the libelants made any such promise as that contained in clause VII.
(2) That the bills of lading were not signed by the libelants.
(3) That the laws of the ports from which the shipments were made should apply.
(4) The states in which the bills of lading contracts were entered into should govern.
The exception with respect to clause VII being a contract of insurance, and the others numbered one (1), two (2), three (3), and four ...