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November 9, 1956

H. W. ST. JOHN & COMPANY, Inc., and The Midvale Company, Libelants,
THE FLYING SPRAY, her engines, boilers, tackle, etc., and Isbrandtsen Company, Inc., Respondents

The opinion of the court was delivered by: RYAN

This suit in admiralty has been filed by the libelant, a Delaware corporation, the present corporate name of which is General Industrial Enterprises, Incorporated, to recover the value of 41,916 pounds of pig iron, the weight shortage of a cargo shipment which it alleges was shortlanded at Philadelphia on December 16, 1951, from the Flying Spray, a cargo carrier vessel owned and operated by respondent, Isbrandtsen Company, Inc., after carriage from Rotterdam aboard that vessel.

The ownership and operation of The Flying Spray by the respondent is admitted. Jurisdiction of the person of the respondent and of the subject matter is not questioned. I conclude that the Court has such jurisdiction, and I make the following findings of fact:

The vessel Flying Spray put into the Port of Rotterdam on November 17, 1951; on November 23 and 24, 1951, it took on a bulk cargo of pig iron for carriage to Philadelphia; the delivery aboard was made by shore cranes lifting from a river barge. There was no weighing in at the time of the loading. The ship accepted the prior carrier's or shipper's weight. The respondent's agent issued an onboard bill of lading for the shipment dated November 24, 1951, with the description of goods reading 'One cargo of German basic pig iron' and representing the gross weight kilos, as 'said to weigh, 1524.819 kilos.'

 The terms of the bill of lading provide that it shall be 'Subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936 (46 U.S.C.A. § 1300 et seq.)'

 The ocean freight calculated upon a shipment of the weight of 1524.819 kilograms was prepaid at Rotterdam. The pig iron was shipped in the form of molded ingots each weighing about 90 pounds, and about 12 or 13 inches in length, 6 inches wide, and 2 inches thick. This was the only shipment of pig iron aboard the vessel on this voyage.

 I have computed the 1524.819 kilograms recorded on the Bill of Lading at 2.2046 pounds to the kilogram, and have transmuted this amount to 3,361,615.8 pounds, or 1500.721 tons.

 The libelant is the owner and holder in due course for value of the bill of lading and cargo in suit.

 The bill of lading is prima facie evidence of a delivery to the respondents of 1524.819 kilograms of pig iron. The libelant has the burden of establishing that the cargo was shortlanded at the Port of Philadelphia, Pier B, on December 16, 1951.

 All of the cargo aboard the vessel was discharged at Philadelphia between December 18 and 31, 1951, with the ship's gear by loading into 27 gondola type freight cars of the Reading Railway; nine of the cars were found to be overloaded, and these cars were taken to another pier, the excess loads taken off and placed into another freight car of the same type.

 The libelant has sought to establish short weight on delivery by proof tending to show the weight of the 28 freight cars when empty and the weight of the same freight cars after the loading with pig iron, and by subtracting the tare weight to arrive at the net weight of the load, thus establishing the alleged short weighted delivery.

 To establish this libelant propounded interrogatories, and respondent, at the same time, propounded cross-interrogatories to one Harry J. Dougherty, an import clerk, who has been in the employ of the Reading Railroad for 19 years. It was his duty in December, 1951, to take care of the forwarding of cargo which was imported on vessels, weighing the freight cars, and making out bills. He 'light weighed' two of the freight cars used on this transshipment from The Flying Spray. He testified that under the practice of the railroad the cars were light weighed before being loaded and weighed again after loading to determine the heavy weight, these weights recorded and railroad scale tickets made out, each bearing a consecutive number, being a certificate of weight, showing date, number of freight car, commodity loaded, gross weight in pounds, tare and net weight. He described in detail the manner in which this weighing is done. He testified that the engine couples up to empty cars, backs down the scale track to a point where the hind car rests on the scale; the hind car is uncoupled and weighed; the engine then backs it off the scale and puts the next car on the scale, and thus continues. The same procedure, he testified, is followed to determine both the light weight and the heavy or loaded weight of the cars. He testified, however, that if a car is more than 50 feet, the car is weighed in what he described as 'in halves,' the first 'half' of the car is weighed; the car is pushed over until the second 'half' is on the scale, and then the second 'half' is weighed. There are, however, he testified, some scales which can take a 52-foot car, but the short length of the scales at Port Richmond where the weighing of the shipment in suit was done, necessitated this double weighing of a car longer than 50 feet. This witness also testified that although his name appears on all of the weight certificates, that was only 'to stop confusion on the different amount of weighers' because sometimes the cars are weighed by five or six different people. He testified that he had only light weighed two of the cars. This witness also testified that there is a stenciled weight on the freight car, which is the weight when the car is manufactured; he could not say what the stenciled weight of the freight cars used on this shipment was.

 Libelant also propounded interrogatories and respondent, cross-interrogatories, to Clarence Konzelman, a clerk in the employ of the Reading Railroad Company; he did add to Dougherty's testimony that he took care of the removal of the excess loading of nine of the original cars employed on the shipment, and weighed these 10 cars, and that the cars under 50 feet were weighed with one end of the car coupled and one end uncoupled.

 Libelant also propounded interrogatories and respondent, cross-interrogatories to John M. Kramlich, who was the conductor in charge of the shifting and weighing of the cars; he was the sworn weigher on the job. He testified that the cargo came in at Pier B but the cars were weighed at Pier C scale, a 50-foot scale; that some of the freight cars used were 42 feet, others 48 feet, and some were 52 feet and had to be weighed double; that he worked with Dougherty on the weighing; that when he weighed some of the cars empty, the weight exceeded the stenciled weight. This difference he said was due to the fact that the car was 'dirty'; he picked out a weight ticket to illustrate this and it showed stenciled weight 46,200, actual weight 47,100.

 When considering this evidence of the alleged short weight delivery from the ship, it must be examined in the light of the precise nature of the libelant's claim. The libelant does not dispute that of a total shipment represented by the bill of lading of 3,361,615.8 pounds, all but 41,916 pounds were delivered to it; expressed in ...

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