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UNITED STATES v. WESTCHESTER FIRE INS. CO.

March 22, 1957

UNITED STATES of America, Plaintiff,
v.
WESTCHESTER FIRE INSURANCE CO. OF NEW YORK, Defendant



The opinion of the court was delivered by: KNOX

This suit was begun on July 21, 1951, almost six years after the occurrence of the events on which it is founded. Defendant answered the complaint on September 5, 1951. A discontinuance was entered on December 30, 1955, and vacated on February 15, 1956. Trial was had in the following November, slightly more than eleven years after the alleged cause of action accrued.

But, whatever the reasons for delay, the result is most unfortunate. The Court is without the aid of a word of oral testimony as to the condition of the cargo, either before, or at, the time it was placed aboard the motor vessel, Sheet Bend, owned by the War Shipping Administration, in September, 1945.

As respects these important matters, the only items of evidence are these:

 (1) A copy of a 'Grace Line, Agent' bill of lading with a notation thereon 'War Shiplading. 7-1-42.' The shipper was W. R. Grace & Co., on behalf of the Commodity Credit Corporation, and the cargo, consisting of 94,223 bags of refined sugar, was consigned to the order of the Commodity Credit Corporation, 150 Broadway, New York, N.Y. Houston, Texas, was the destination of the goods.

 This document was dated at Salaverry, Peru, September 18, 1945, and was signed 'For the Master, by Grace Line, Inc., as agent for the Master, by R. P. Menees (the Master of the ship).' It also contained this memorandum:

 'In accepting this bill of lading the shipper, consignee and owner of the goods agree to be bound by all of its stipulations, exceptions, and conditions, whether written, printed, or stamped on the front or back hereof, any local customs or privileges to the contrary notwithstanding.

 'Grace Y Cia. (Peru) Seccion Salaverry.'

 Such memorandum was signed by a person (whose name is undecipherable) as 'Administrador'.

 The bill of lading recites that the goods had been received 'in apparent good order and condition', with the exception that '18 bags (were) lost overboard' in loading the vessel.

 (2) The bridge log book of the ship; and

 (3) A letter of protest by the Master, which reads:

 'S/S Sheet Bend Salaverry, Peru. September 18, 1945

 'Grace Y. Cia. 'Seccion, Peru. Salaverry, Peru.

 'Dear Sirs:

 'During the course of loading cargo 4250 tons refined sugar, September 13, 1945, to September 18, 1945, at Salaverry, Peru, the following exceptions have been noted:

 '1. 1% of bags found to be wet or in a damp condition.

 '2. 2% of bags found to be in bad order or torn.

 '3. Hatches were not closed at night, resulting in the top layer of bags to be found in a damp condition each morning. Hatches were left open against the instructions of Officer on duty.

 '4. Although ship provided enough dunnage, no dunnage was used over side cleats or sweat battens as requested by Officer.

 'Yours very truly, (sgd) Robert P. Menees, Master

 'I hereby acknowledge receipt of the original exception noted.

 'S. Biggs, Agent, Grace Y. Cia Salaverry, Peru.'

 These documents were introduced into evidence under the provisions of Title 28 U.S.C.A. § 1733. Others, bearing upon the loss sustained by the United States, were also admitted by virtue of said statute. The reception in evidence of the bill of lading, and some other governmental exhibits, was vigorously opposed by the defendant.

 The loading of the ship was completed on September 18, 1945, and it is inferable that the bill of lading and the master's protest were simultaneously delivered to Grace Y. Cia.

 The other facts, so far as shown, are substantially these:

 On September 13, 1945, the Sheet Bend, as she lay in the stream at Salaverry, began taking the cargo on board from lighters, alongside the ship.

 In view of what occurred in course of loading, the entries in the log book, in reference thereto, should be set forth. They are:

 'September 13, 1945

 12.05 Riggers aboard, rigging up for loading.

 12.45 Stevedores aboard. Opening hatches.

 13.50 #1 hatch open.

 16.22 Began loading #1, and loading ship.

 17.35 Began loading #2 hold.

 18.45 Start opening #3 hatch, laying dunnage #3 hold.

 24.00 Stevedores away, insisting on leaving hatches open over 2nd Mate's protest.

 (1) 10 sacks sugar #1 broken from dropping a sling load. Rejected by ch. officer, but sent back aboard by agents.

 (2) 8 sacks sugar #1 H torn rough handling by stevedores.

 (3) 25 sacks sugar #2 H torn. Rough handling by stevedores.

 (4) 10 sacks sugar #1 H were torn & R/S on delivery to vsl for loading.

 (5) 12 sacks sugar #2 H were torn & R/S on delivery to vsl for loading.

 September 14, 1945

 (1) Stevedores failed to close hatches as per Deck Officer's request -- Hatches found open at 0700.

 (2) #1 hold -- sacks torn on loading -- resewn and loss negligible.

 (3) #2 hold -- 11 sacks torn on loading recoopered -- O.K.

 (4) #3 hold -- 21 sacks torn while loading -- recoopered -- O.K.

 (5) #3 hold -- 6 sacks in bad order -- rejected.

 (6) #2 hold -- 11 sacks in bad order -- ...


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