The opinion of the court was delivered by: GODDARD
The plaintiff, a Swiss corporation, sues to recover for the alleged loss of 6,860 scrap rubber tires which were insured by the defendant in the sum of $ 38,343 against certain perils and upon certain conditions for a voyage from Jacksonville, Florida, to Genoa, Italy.
Plaintiff claims that the tires were loaded aboard the S.S. Colony Trader at Jacksonville, Florida, on April 27, 1947. En route to Genoa, the vessel called at the Port of Gibraltar where she was detained and prevented from proceeding to her port of destination on orders of the Governor of Gibraltar for the reason that the said vessel was being, or was intended, or was likely to be used for the purpose of conveying to Palestine persons whose entry thereto would be contrary to the law in force in Palestine. The detention of the vessel continued from May 23, 1947 to November 20, 1947, at which time the vessel was released by further order of the Governor of Gibraltar and proceeded to Piraeus, Greece. She arrived there on or about December 3, 1947.
On July 7, 1947, while the S.S. Colony Trader was still detained at Gibraltar, the plaintiff served upon the defendant a written abandonment of the insured cargo because of the detention of the S.S. Colony Trader. By letter dated July 11, 1947, the defendant declined to accept this abandonment.
While detained at Gibraltar and some time prior to September 30, 1947, the S.S. Colony Trader was sold to one John Lydikes, a Greek National, and renamed the 'Ochi'. The new owner cabled the plaintiff's agent requesting instructions as to the desired disposition of the tires. The new owner warned that the tires would remain aboard 'at your sole risk and expense as steamer will sail ex Gibraltar very shortly reply urgent'. The plaintiff took no steps to protect his tires.
The vessel then sailed to Piraeus, Greece, where the owner of the vessel, in accordance with Greek law, applied to a Greek court for an order to sell the cargo to pay for the freight. The Greek court issued such an order and the vessel owner sold the cargo, including the tires, at public auction.
The plaintiff seeks to recover on two grounds. He contends that he suffered either (1) a total constructive loss and had a right to abandon, or (2) he suffered an actual total loss. Defendant urges that recovery by plaintiff is barred by certain conditions and warranties set forth in the insurance policy.
In order to recover, the plaintiff has the burden of proving that the alleged loss comes within the terms and conditions of the policy. Imperial Fire Insurance Co. v. Coos County, 151 U.S. 452, 14 S. Ct. 379, 38 L. Ed. 231.
The defendant urges that the plaintiff has failed to prove that the tires were shipped on board the S.S. Colony Trader.
To prove shipment, the plaintiff produced as a witness the president of the concern that sold the tires to the plaintiff. He testified that his company sold 6,860 tires to the plaintiff and that he saw at least half of the tires loaded aboard the S.S. Colony Trader. Although his testimony cannot be taken as direct proof that 6,860 tires were loaded aboard that vessel, it is good proof that at least a large part of the 6,860 tires were loaded aboard.
The plaintiff offered in evidence copies of two bills of lading and this witness testified that he had received these copies with the original bills of lading from the shipping company when he delivered the tires; that he had given the originals to a bank in order to receive payment for the tires that had been delivered. One of the bills of lading recited receipt of 1,710 tires and was initialed by the master; the other recited receipt of 5,150 tires and was not signed or initialed by any one. The defendant objected to their being admitted into evidence on the ground that they are heresay as to the defendant. That may be so. Nevertheless, I think they are admissible as records made in the regular course of business. 28 U.S.C.A. § 1732; Ulm v. Moore-McCormack Lines, Inc., 2 Cir., 115 F.2d 492, rehearing denied, 2 Cir., 117 F.2d 222, certiorari denied 313 U.S. 567, 61 S. Ct. 941, 85 L. Ed. 1525; Hunter v. Derby Foods, Inc., 2 Cir., 110 F.2d 970, 133 A.L.R. 255. The fact that the one document was unsigned is immaterial. The witness testified that it was a copy of the original and the absence of the original was explained.
The plaintiff also offered in evidence a document entitled 'Outward Foreign Manifest' and which was signed under oath by the master of the S.S. Colony Trader. This showed that 6,860 tires were aboard the vessel when it sailed on the voyage in question. The document offered was a certified copy of the manifest that the master was required by law to file with the Collector of Customs under the provisions of 46 U.S.C.A. § 92. This document may also be hearsay evidence but it is admissible as evidence under Rule 44 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and by the provisions of 28 U.S.C.A. § 1732. This document was also made and filed in the regular course of business.
The same rule and statute make admissible another document that showed that the plaintiff shipped 6,860 tires on the S.S. Colony Trader. This document was a photostatic copy of a 'Shipper's Export Declaration' that was filed with the Deputy Collector of Customs at Jacksonville, Florida. This was also required by law. The copy offered was certified by the Deputy Collector of Customs at Jacksonville to be a true copy of the original on file in that office. This original document was also made and filed in the regular course of business.
Proof of shipment of the tires on board the S.S. Colony Trader is not as simply shown as perhaps it might be, but I think there is a prima facie proof of delivery and no proof to the contrary has been offered.
However, there are reasons why there can be no recovery in this case. The plaintiff contends that the carrier was under a duty to tranship the goods when the ship was detained at Gibraltar; that the carrier's failure to tranship resulted in a total constructive loss; that the clause of the insurance policy that insured 'against all risks of physical loss and/or damage from any external cause' covered this loss. ...