The opinion of the court was delivered by: KAUFMAN
This suit is for damage to a shipment of Java citronella oil originating in Java and moving from Rotterdam to New York on respondent's ship, the S.S. Blijdendijk. Libelant alleges that the drums of oil were wrongly carried on deck by the respondent; that they should have been stowed under deck; and that as a result the shipment was 'short, slack and seriously damaged and impaired in value'.
Respondent's answer to the libel alleges a right to carry the goods on deck by a provision in the bill of lading covering the shipment (Article 5) and by custom (Article 11). It further alleges in Articles 11 and 12 that it is not responsible because notice of claim was not given in accordance with clause 24 of the bill of lading and suit was not instituted within six months as required by that clause. Respondent also pleaded a limitation-of-liability clause in the bill of lading (Article 13).
Libelant has excepted to the foregoing Articles and also to certain interrogatories served on it by the respondent.
Clause 5 of respondent's bill of lading provides as follows: 'The vessel has the right to carry goods on deck at shipper's risk.'
Libelant alleges that this clause is invalid since the bill of lading was a 'clean' bill of lading which implied under deck stowage, and that libelant, an innocent purchaser of the bill of lading for value, had no notice that the oil was stored on deck.
Considerable difficulty has been occasioned by the use of the term 'clean' bill of lading, due in all probability to the fact that the term has two meanings, one broad and one narrow. Broadly speaking, a 'clean' bill of lading is one which contains nothing written, stamped or printed in the margin qualifying the words of the bill of lading itself. The Isla de Panay, 2 Cir., 1923, 292 F. 723, 730; Roberts & Co. v. Calmar S.S. Corp., D.C.E.D. Pa. 1945, 59 F.Supp. 203, 209; 1 Bouv. Law Dist., Rawle's Third Division, p. 358. In the narrower sense, where a bill of lading with no qualifying words in the margin and with no provision in the bill of lading itself as to the manner of stowage is used, the import of such 'clean' bill of lading is that goods are to be secured under deck. St. Johns, N.F. Shipping Corporation Owner v. S.A. Companhia Geral Commercial do Rio De Janerio, 1923, 263 U.S. 119, 44 S. Ct. 30, 68 L. Ed. 201; Roberts & Co. v. Calmar S.S. Corp., supra, D.C.E.D. Pa. 1945, 59 F.Supp.at page 209; The Kirkhill, 4 Cir., 1900, 99 F. 575; Propeller Niagara v. Cordes, 1858, 21 How. 7, 62 U.S. 7, 16 L. Ed. 41.
It is conceded that the bill of lading issued in this case was 'clean' in the broader sense, that is, nothing was printed or noted in the margin. However, libelant seeks to make the broader usage of a 'clean' bill of lading synonymous with its narrower usage and thereby established that under deck stowage was implied by this bill of lading; and therefore it concludes that the clause permitting on deck stowage was invalid.
A 'clean' bill of lading cannot import under deck stowage except in the absence of a specific provision as to stowage. As it is stated in Bouv. Law Dist., at p. 358: 'Under a 'clean' bill of lading in the usual form (viz, one having no stipulation that the goods shipped are to be carried on deck), there is a contract implied that the goods shall be carried under the deck; * * * .' (Emphasis added.)
And in the case of Propeller Niagara v. Cordes, supra: 'A clean bill of lading, in general, imports, unless the contrary appear on its face, that the goods are to be safely and properly secured under deck.' 21 How.at page 23, 62 U.S.at page 23, 16 L. Ed. 41.
In the case of The Peter Helms, D.C.W.D. Wash. 1938, 24 F.Supp. 461, the Court had the identical problem as in this case. There was a clause printed on the back of the bill of lading to the effect that ' * * * the right to carry said merchandise on deck or under deck * * * is expressly reserved to the carrier.'
The Court held that provision valid stating: 'The bill of lading here is not 'a clean bill of lading', within the ruling of the St. Johns Case, * * * 263 U.S. 119, 44 S. Ct. 30, 68 L. Ed. 201, requiring under deck stowage where the carriage contract, following a previous preliminary contract between the parties granting an option, is silent as to the place of stowage, because here, instead of remaining silent on the question, the bill of lading, constituting the only disclosed agreement * * * between the parties, expressly provides for either on-deck or under-deck stowage. The parties may lawfully stipulate for on-deck stowage, * * * and they did so , in this case. By stowing on deck, the the carrier only did what, by the express terms of the contract, it had the stipulated right to do.' 24 F.Supp.at pages 461-462.
This decision was tacitly approved by the Court in the case of American Tobacco Co. v. Katingo Hadjipatera, D.C.S.D.N.Y. 1948, 81 F.Supp. 438, at page 448, wherein a bill of lading giving a qualified or provisional right to stow on deck was distinguished from a bill of lading giving the carrier an unqualified right to stow on deck.
Libelant claims, however, that it is an innocent purchaser for value of the bill of lading and not the shipper. The purchaser takes the bill subject to all provisions on its face. The Idefjord, 2 Cir., 1940, 114 F.2d 262, certiorari denied, 1940, 311 U.S. 707, 61 S. Ct. 175, 85 L. Ed. 459. That is the very reason why the Court of Appeals for this Circuit in the Idefjord case, supra, held that issuance of a 'clean' bill of lading with no provision for stowage at the commencement of a voyage does not permit a change to on deck carriage in transit by agreement between the shipper and the carrier since this is a deviation from the terms of the original contract of carriage, which had passed in the form of a bill of lading into the hands of innocent purchasers with no notice of the change.
The rationale of that decision was undoubtedly the same as that in the St. Johns case, supra. In that case the shipper and carrier had entered into a preliminary agreement that goods could be carried 'on or under deck, ship's option'. However, when the goods were loaded, 'clean' bills with no endorsement or provision concerning stowage were issued. The Supreme Court held that the issuance of 'clean' bills was the exercise of an option to stow the goods under deck. The decision was without doubt an attempt to preclude the circulation of 'clean' bills which ...