O. F. Nelson & Co. v. United States

This is an appeal from a decree in admiralty holding the appellee is not liable for injury to and loss of appellants’ cocoa beans while being transported by the appellee on or about January 29, 1942, in the harbor of Pago Pago of the Samoan Island of Tutuila, on appellee’s Navy’s wooden lighter, from appellee’s Customs warehouse to the steamer Jupiter.

The cocoa beans were an import from British Samoa and held for transshipment to California where they would again enter the Customs’ custody. It was admitted that the beans were held in the Customs warehouse not as a favor extended by the Navy but under the law of the United States requiring it to collect the import tariff on them or confine them until transported to another port of entry. While in the custody of the United States it collected a warehouse charge, also imposed by law.

The Jupiter was operated for the appellee and as appellee’9 agent and as such was to carry the cocoa beans under commercial bills of lading, previously prepared under appellee’s direction, to the port of entry at San Francisco, California.

The burden was upon the appellants to sustain their contention that appellee’s carriage was as a common car *694…

(dissenting).

The majority opinion proceeds largely on the basis of imported “facts” and extraneous assumptions. It is said, for example, that at the hearing in this court “appellee supplemented its testimony with two frank admissions of fact.” One of these supplementary facts (and the only one I will notice) is that the cocoa beans were “desired by the Jupiter’s captain as ballast” in the afterhold to bring the vessel’s stern down.

This supposed purpose of removing the beans becomes a controlling circumstance in the reversal of the judgment below. The testimony of the officer in charge is disregarded, namely, that he was “directed by competent military authority to clear the customs warehouse space occupied by the cocoa beans and load them into the Jupiter in order that the space they occupied could be used to store provisions under cover.” There is nothing in the record, nor yet in the briefs, concerning a desire for ballast. As to the Jupiter’s stern, the evidence is that the No. 5 hold was the only one free of the dock and likewise the only one from which cargo had been removed.

The source, if any, from which this important supplemental fact was gleaned must necessarily…