The opinion of the court was delivered by: BYERS
In this cause recovery is sought by the owner of 2,000 cases of brandy for loss due to breakage during ocean carriage from Oporto, Portugal, to Philadelphia, on the S. S. Goncalo Velho, in January and February of 1944.
The brandy was shipped in wooden boxes, each containing one dozen bottles laid in three layers of four each, packed in cork shavings (pieces of sliced cork) intended to prevent contact between the bottles; that is, a layer of shavings on top and bottom of the layers, and between each, with shavings between each bottle.
The boxes presented no exterior stains when the cargo was laden and the clean bill of lading is taken to mean that the boxes were received in apparent good order and condition.
At out-turn several cases were stained, indicating interior breakage, which was confirmed on inspection at the pier and at the bonded warehouse to which the shipment was removed.
The libellant's witness Leder who observed the opening of the cases and the broken bottles, when asked if he saw whether the top layer of cork shavings had sifted to the bottom, or in between bottles, made this answer: ' * * * it is hard to determine, I wouldn't make any attempt to determine whether the shavings had shifted or what had happened to the shavings inside while the breakage took place. I am not qualified.'
He had already said that, while there was always some breakage, he regarded this as excessive, but was unable to state what would be normal without consulting records. He also said that most of the shipments of brandy in 1944 were packed in cork shavings.
Out of 2,000 cases (24,000 bottles) the total number of broken bottles would amount to about 63 cases in all, or 756 bottles; but the ship's responsibility continued, or whether some took place during and after transportation to the warehouse, is not the subject of proof thus far.
The boxes or cases were intact at the time of delivery. There is no evidence that the cases bore evidence of bruising or chafing such as would have been caused by their striking against one another or something else, which could be explained by shifting of the cargo during the voyage.
As to the adequacy of the stow, the evidence, such as it is, is to the effect that the boxes or cases were well and safely placed in the No. 4 'tween deck space, and in lower hold No. 3. The first officer of the Goncalo Velho said the stow was level as to the top tier. Since the cases were uniform in size, that is informative as to the lower tiers. He said that the stow was tight and couldn't shift, and that he had an opportunity to examine this cargo while it was being discharged, and that the slings did not strike the hatch coaming during the process, and that none of the slings dropped while being loaded.
The respondent's witness Captain Pilcher, who has been a cargo surveyor in this port for better than 30 years, was present at part of the discharge, and as to the 1,666 cases in No. 4 'tween deck he said: 'The stow was level and secure, and there was no evidence of the cargo having shifted during the voyage, and I saw no evidence of breakage * * * of the cases.'
Two matters seem to call for consideration in making a decision:
(1) Whether the controversy is governed by clause (n) of paragraph (2) of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304, which absolves the carrier from loss or damage arising or resulting from '(n) Insufficiency of packing'.
(2) If not, whether clause (q) applies, namely, 'Any other cause arising without the actual fault and privity of the carrier', in which case ...