The opinion of the court was delivered by: LEIBELL
On November 13, 1950, the United States filed its libel herein; 'in rem' against the S.S. South Star and 'in personam' against the Prudential Steamship Corporation, as owner of the vessel. The libel charged that the vessel loaded a shipment of 75 Army trucks at Charleston, South Carolina, on November 10, 1948, for transportation to Mediterranean ports; that on November 27, 1948, the vessel loaded 1342 tons of codfish at St. Johns, Newfoundland, canada, for transportation to Mediterranean ports; that the said cargo was in good order and condition when shipped; that on November 27, 1948, the vessel sailed from St. Johns, Newfoundland, with said cargo and other cargo and arrived at Boston Army Base on December 1, 1948,with a large part of libelant's cargo damaged, to the extent of $ 65,000.
The vessel met storms a few hours after leaving St. Johns, the cargo broke loose in the hold and the vessel was forced to put into the port of Boston. It appears from the stipulation of facts, dated February 27, 1953, that the sound portion of the cargo was later delivered at the various Mediterranean ports between January 3, 1949 and January 17, 1949, so that 'all of the cargo referred to in the libel, whether damaged or sound upon outturn, was discharged from the S.S. South Star and delivered prior to January 18, 1949'.
Prudential filed exceptive allegations to the libel which came on before Judge Clancy in March 1951. The exceptive allegations were based upon the provisions of Article 15(a) of the charter contract between Prudential, as owner of the vessel and the United States, as charterer of cargo space on the vessel. A copy of the 'contract for charter of space on cargo vessels' is annexed to respondent's exceptive allegations. Article 15(a) provides:
'(a) The owner and the vessel in all matters arising under this charter party shall be entitled to the privileges and rights and immunities as are contained in Section 3(6), Section 4 (except subsection (4) thereof) and Section 11 of the Carriage of Goods by Sea Act of the United States approved April 16, 1936. The aforesaid provisions (except as may be otherwise specifically provided herein) shall govern before the goods are loaded on and after they are discharged from the vessel and throughout the entire time the goods are in the custody of the owner or vessel.'
Section 3(6) of the Act provides:
'(6) Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. If the loss or damage is not apparent, the notice must be given within three days of the delivery.
'Said notice of loss or damage may be endorsed upon the receipt for the goods given by the person taking delivery thereof.
'The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.
'In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered: Provided, That if a notice of loss or damage, either apparent or concealed, is not given as provided for in this section, that fact shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered.
'In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.'
One of the exceptive allegations as originally filed was that 'All of the cargo referred to in the libel was or should have been delivered prior to January 16, 1949'. On the motion before Judge Clancy the libelant refused to admit that allegation and the judge felt obliged to deny the motion to dismiss the libel, citing United States v. Gydnia American Shipping Lines, D.C., 57 F.Supp. 369.
The parties have recently entered into a stipulation, dated February 27, 1953, which provides that for the purposes of this suit certain facts are admitted, including delivery of the sound portion of the cargo to the designated ports prior to January 18, 1949. This suit was not commenced until almost a year and eight months after the date of the last delivery.
The respondent has made a new motion, based on the exceptive allegations and the stipulation of facts, and asks that the libel be dismissed because the suit was not brought 'within one year after delivery of the goods or the date when the goods should have been delivered'. If the one year limitation as to suit, as provided in Section 3(6) of the Carriage of Goods by Sea Act, T. 46 U.S.C.A. § 1303(6), applies to this suit, the motion must be granted.
The government's attorney argues that the sole effect of Article 15(a) of the charter party was to incorporate into the charter party those privileges and immunities which the owner and the vessel would enjoy under Section 3(6) of the Act in a suit brought by the United States 'in which the Carriage of Goods by Sea Act would apply of its own force alone', and that if the ...