The Heranger

Appellants, libelants in the court below, filed a libel against the Norwegian Motor-ship “Heranger,” her tackle, apparel and furniture, and Westfal-Larsen & Co., A/S, a corporation, respondents and appellees, for damages to a cargo of bananas shipped on appellee vessel from Balboa, Canal Zone, to Los Angeles and San Francisco, California.

The libel is in the form usually employed in cargo damage cases, alleging delivery to the vessel in good order and condition, a promise to re-deliver in like good order and condition, and discharge in a damaged condition.

The respondents filed a joint answer in which they denied the allegations mentioned in the preceding paragraph and set up six affirmative defenses. One of these defenses merely defined the measure of damage to be applied and is of no consequence upon this appeal. Of the remaining five, two were predicated upon section 3 of the Harter Act, 46 U.S.C.A. § 192 , one pleading it directly and the other pleading a bill of lading provision incorporating the statutory exceptions. The remaining three pleaded bill of lading provisions which, in substance, relieved the vessel of liability for damage resulting from condition of the goods…

(dissenting).

I vote for granting the petition for rehearing in the above entitled cause, on the ground that I would like to hear re-argument on the matter of deviation.