The opinion of the court was delivered by: KNAPP
This suit in admiralty presents the question of what, if any, damages the carrier must pay the shipper for failure to make proper delivery of goods consigned to its care. The parties, by the thoroughly professional conduct of their attorneys, have vastly simplified that task with which the court is confronted.
The shipment, 163 cartons of cosmetics delivered to the carrier packed in 9 pallets, was shipped from Philadelphia to a consignee in Jeddah, Saudi Arabia. It was duly placed on the dock in Jeddah in June, 1974 but (for reasons no longer relevant) this fact was unknown to anyone until on or about December 16, 1974. The cargo was not available for delivery to the consignee until October 25, 1975, by which time it had deteriorated to the point where it was substantially valueless. The original value of the shipment was $40,338.30.
The parties have stipulated that the carrier was at fault for the mysterious disappearance of the cargo until December 16, 1974 but that the shipper (who had been promptly notified of its discovery on or about that date) could by the exercise of due diligence have caused its delivery to the consignee on or before January 5, 1975. It is therefore agreed that the carrier is liable for any deterioration that occurred between June 1974 and January 1975, but for none that may have occurred theretofore or thereafter.
Two questions are therefore presented:
1. What, if any, deterioration had occurred between June 27, 1974 and January 5, 1975;
2. If the damage due to such deterioration exceeded $4,500 is the carrier, under § 4(5) of the Carriage of Goods by Sea Act (COGSA), entitled to have damages limited to that amount on the theory that it had received only 9 "packages" from the shipper?
We shall discuss these questions in inverse order.
With respect to the number of "packages" involved for purposes of COGSA limitations, both parties seem to agree that if the case is governed by Standard Electrica, S.A. v. Hamburg-Sudamerikanische (2d Cir. 1967) 375 F.2d 943, cert. denied 389 U.S. 831, 88 S. Ct. 97, 19 L. Ed. 2d 89 the carrier must prevail in its contention that we are dealing with 9 packages. The shipper however contends that Standard Electrica has been qualified by Royal Typewriter Co. v. M. V. Kulmerland (2d Cir. 1973) 483 F.2d 645, and that the logic of that opinion should lead to a finding that 163 packages are involved.
We conclude, first, that the Royal Typewriter opinion was not intended to qualify Standard Electrica with respect to the subject matter of the earlier case (palletized shipment) but was intended to deal only with the quite different problems presented by containerization; and, secondly, that even if the Royal Typewriter reasoning were to be applied the result would be the same and we would still be left with a shipment of 9 "packages".
The following factors are established by the evidence before us: the decision to palletize was made by the shipper, the carrier having no part therein; such decision was made by the shipper exclusively in its own self-interest, with no regard for the interest of the carrier; the vast majority (and probably all) of the shipper's international shipments by sea were palletized; all documents emanating from the shipper referred to in one way or other to "9" pieces, although the fact that such 9 pieces contained a total of 163 cartons was also mentioned; there being no affirmative evidence that the shipper had ever shipped a carton by sea, there is no evidence that any of the 163 cartons was suitable for such shipment.
On the basis of the foregoing facts we conclude that, regardless of whether Standard Electrica or Royal Typewriter is applicable, we are dealing with a shipment of 9 packages, and the ...