States Marine Corp. of Delaware v. Producers Cooperative Packing Co.

These two cases, consolidated for trial in the district court and in this court, rose out of certain shipments of various quantities of canned goods and dried fruit received by the appellant aboard its ship SS Empire State for carriage from loading points at Seattle, Vancouver, Alameda and Stockton, to various ports of discharge on the Gulf of Mexico including Tampa, Mobile and New Orleans. In each case the libelants-appellees allege the delivery to the carrier of the cargo in good order and condition for transpor-tad -in; the discharge of the cargo at destination, and the carrier’s failure and neglect to deliver the same in like good order and condition, but on the contrary, *208 in a damp, stained, dented, rusty and moldy and otherwise damaged condition.

The respondent-appellant in answer admitted receipt of the goods in apparent good order and condition; denied that libelants had been damaged by reason of any fault, neglect or breach of contract on their part, and denied all the other allegations of the libelants generally. It alleged that if there were any damage to the goods the same resulted from one or more of the excepted causes under the Carriage of Goods by Sea Act,…

On Petition for Rehearing.

In a petition for rehearing appellant renews its argument that the case of The Neil Maersk, 2 Cir., 91 F.2d 932 , should control here. The contention is that the result here is an improper holding that the rule of that case “is limited to ‘concealed vice’ ”.

The later decisions of the Second Circuit, referring to Neil Maersk, show that petitioners are mistaken. See Hecht, Levis & Kahn, Inc. v. The S. S. President Buchanan, 2 Cir., 236 F.2d 627, 631 , where the reference is to a “hidden defect”. This appears to be in accord *214 with what the trial court said about “concealed vices”. Its statement that the conditions of the cargo items “are not concealed vices” is a finding of fact which we are not permitted to disturb.

This conclusion made it unnecessary for us to consider the plausible suggestion that in the light of Schnell v. The Vallescura, 293 U.S. 296 , 55 S.Ct. 194 , 79 L.Ed. 373 , the rule of the Neil Maersk case cannot be properly applied in a case like this where there was evidence of carrier’s negligence contributing to or enhancing the damage. 1 The facts in Albers Bros. Milling Co. v. Hauptman, 9 Cir., 95 F.2d 286 , were wholly different…