The opinion of the court was delivered by: KNOX
In this suit, libelants seek recovery of the sum of $ 4,607.50, the agreed value of 38 bales of rubber which, out of a shipment of 224 bales, were undelivered after the steamship, Washington Mail, discharged her cargo; part at Los Angeles, and the remainder at San Diego, California, in September and October, 1951.
According to the bills of lading, libelants' shipment was to be carried from Penang to San Francisco, but, due to dock conditions prevailing at the latter port, the ship proceeded to Los Angeles, and then to San Diego. She reached Los Angeles on September 28, 1951, and discharged about one half of her cargo. The last delivery from the docks at that point was upon October 18, 1951. The steamer reached San Diego on October 1, 1951, completed her discharge on October 8, and sailed. The last delivery of cargo at this port was on October 31, 1951. On the 11th day of that month, libelants' cargo interests received 186 bales of their original consignment. The balance of 38 bales was never delivered.
Libelants take no exception to the fact that the ship did not discharge her goods at San Francisco.
On the voyage in question, the Washington Mail's manifest indicates that she carried 70,692 bales of rubber for delivery to numerous consignees.
The parties have stipulated that:
'* * * (6) Manuel Garcia, if called as a witness, would testify that he was employed as a checker at San Diego, California, by the San Diego and Arizona Railroad; that the initials 'M.G.' at the lower left corner of the * * * document entitled, 'Railroad Loading Ticket', marked Exhibit 2, are his initials; that the said document was prepared by him and others, and was initialed by him in the performance of his regular duties; that he does not have a present recollection of the matter independent of the said document; and that the date when the words, 'checked short 38 bales', and who inserted them is now unknown.'
The parties also agree that 'Beck, whose name appears on the said document as the steamship checker, is deceased.'
On January 30, 1952, the American Mail Line, Inc., one of the respondents herein, attempted to trace the undelivered bales on which the libel is founded, together with certain other 'missing' bales. But, so far as the 38 bales are concerned, the tracer was of no avail.
The original libel herein was filed by Carl M. Loeb, Rhoades & Co. on October 14, 1952. The following day, an amended libel, which sets forth Home Insurance Company, as subrogee of Carl M. Loeb, Rhoades & Co., was filed.
The bill of lading covering the shipment in question provides, in Clause 1 thereof, as follows:
'This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936 (46 U.S.C.A. § 1300 et seq.), which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall (except as may be otherwise specifically provided herein) govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the Carrier. The Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or misdelivery, or loss or damage to the goods occurring while the goods are not in the actual custody of the Carrier.'
Respondents concede that, if the loss occurred after discharge, the bill of lading provisions are applicable; if it occurred on board, the Act itself governs, so that, in either event, there is a one-year limitation. The pertinent portion of the Act reads as follows:
'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 ...