The opinion of the court was delivered by: TYLER
This suit arises out of a shipment of books by plaintiff Encyclopaedia Britannica, Inc. ("Britannica") on the SS HONG KONG PRODUCER, which is owned by defendant Universal Marine Corporation ("Universal"). A trial was held before the court sitting without a jury on January 15 and 16, 1969. The following findings of fact and conclusions of law represent my decision on the merits of this controversy.
1. On December 2, 1964, Britannica's agent, United Cargo Corp. ("United Cargo"), delivered to the HONG KONG PRODUCER eight metal containers in which had been placed 4,080 cartons of bound books for carriage to Britannica's affiliate in Japan. The books had been transported from Britannica's Chicago plant by motor truck to New York and there had been consolidated into the metal containers by United Cargo. The containers bore the following identification numbers: UCC 5120, UCC 5152, UCC 5223, UCC 5298, UCC 5330, UCC 5458, UCC 5496, and C-10344.
The shipment was received by defendant Universal in "apparent good order and condition." (Exhibit 5.)
2. On receipt of these metal containers, Universal issued a "short form" bill of lading which contained no notation on its face that any of the containers were to be carried on deck. The short form bill of lading (see Exhibit 5) states that:
"This Short Form Bill of Lading is issued for the shipper's convenience and at its request * * *",
"All the terms of the carrier's regular form of Bill of Lading are incorporated herein with like force and effect as if they were written at length herein."
The regular form bill of lading (see Exhibit 5) provides in part:
"The shipper represents that the goods covered by this bill of lading need not be stowed under deck and it is agreed that it is proper to and they may be stowed on deck unless the shipper informs the carrier in writing before delivery of the goods to the carrier that under deck stowage is required.
With respect to goods carried on deck, all risk of loss or damage by peril inherent in or incidental to such carriage shall be borne by the shipper * * *".
Britannica neither notified Universal that it required under-deck stowage nor did it insert in the bill of lading any increased value for the shipment.
3. During transit, the HONG KONG PRODUCER encountered "boisterous" weather, and a considerable amount of seawater passed over its weather decks on numerous occasions. Six of the eight containers were shipped on deck, and, as the parties stipulated, "The aforesaid shipment sustained some damage by breakage and sea water while on board the SS HONG KONG PRODUCER."
4. The HONG KONG PRODUCER arrived at Yokohama on January 16, 1965. During the next two days, surveyors, at the request of defendant or its agent, inspected the cargo aboard the vessel. At several places in the surveyor's report (Exhibit 7), there was noted specific damage to containers 5152 and 5330. On page 1 of the report, it is said that on both containers "both sides were dented and broken." A similar remark was made on page 2, and the two containers were included in a schedule of damaged cargo with the notation "side broken, ...