Isthmian Steamship Company, a Corporation v. California Spray-Chemical Corporation, a Corporation

290 F.2d 486 ISTHMIAN STEAMSHIP COMPANY, a corporation, Appellant, v. CALIFORNIA SPRAY-CHEMICAL CORPORATION, a corporation, Appellee. No. 16812. United States Court of Appeals Ninth Circuit. May 2, 1961. McCutchen, Doyle, Brown & Enersen and Russell A. Mackey and Bryant K. Zimmerman, San Francisco, Cal., for appellant. Hall, Henry, Oliver & McReavy and Lyman Henry and Stephen McReavy, San Francisco, Cal., for appellee. Before POPE, BARNES and HAMLIN, Circuit Judges. BARNES, Circuit Judge. 1 This is a suit in admiralty to recover damages for injury to cargo occurring on navigable waters at Alexandria, Egypt. The district court's jurisdiction was based on 28 U.S.C. 1333. The district court entered an interlocutory decree in favor of libelant and providing for a reference to ascertain the amount of damages. This court has jurisdiction of the appeal taken from the interlocutory decree. 28 U.S.C. 1292(a)(3). 2 Libelant-appellee, California Spray-Chemical Corporation, shipped a quantity of an agricultural chemical, known as cotton dust, packed in fiber drums, from Houston, Texas to Alexandria, Egypt in January 1952, on the Steel Architect of appellant Isthmian Steamship Company.…

This is a suit in admiralty to recover damages for injury to cargo occurring on navigable waters at Alexandria, Egypt. The district court’s jurisdiction was based on 28 U.S.C. § 1333 . The district court entered an interlocutory decree in favor of libelant and providing for a reference to ascertain the amount of damages. This court has jurisdiction of the appeal taken from the interlocutory decree. 28 U.S.C. § 1292 (a) (3).

Libelant-appellee, California Spray-Chemical Corporation, shipped a quantity of an agricultural chemical, known as cotton dust, packed in fiber drums, from Houston, Texas to Alexandria, Egypt in January 1952, on the Steel Architect of appellant Isthmian Steamship Company. On arrival at Alexandria the cargo was discharged into lighters for on-carriage to the quays of Egyptian Petroleum Storage Company. This lighterage was made necessary by Egyptian customs regulations, which required that this commodity be landed only at the “petroleum quays.” Since deep draft vessels, such as carrier’s, could not come alongside the *488 petroleum quays, further transportation by lighter was required.

The cargo had been shipped under short bills of lading which incorporated…

I concur.

The court’s opinion, as I understand it, in invalidating the clause of the bill of lading relating to lighterage holds that the carrier remains responsible for the safe arrival of the goods under the general law of maritime carriage. That law, to start with, provided that all the shipper had to do to make his case was to prove receipt of goods in good order and non-delivery, or delivery in bad order. In this connection the opinion states: “The Act invalidates * * * any clause inserted in a bill of lading by a ship owner, relieving the owner from liability for failure to make a ‘proper delivery’ either by agreement with shippers or by delegation to others.” It would follow that the opinion proceeds upon the theory that the duty of safe and proper delivery is a nondelegable duty. If that be so, then in the absence of proof by the carrier that the circumstances were such that this absolute duty did not apply, such for instance as perils of the sea, act of God, act of war or public enemies, etc., the carrier is liable if safe delivery be not made. If the case be shown to be under one of the recognized exceptions mentioned, even then he becomes liable if he has been…