Opinion
No. 5107.
February 1, 1928. Petition for Reconsideration of Decree Denied February 20, 1928. Rehearing Denied February 27, 1928.
Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge.
Libel by Leon Israel Bros., Inc., against the United States Shipping Board Emergency Fleet Corporation. From a decree of dismissal ( 18 F.[2d] 627), libelant appeals. Reversed and remanded.
Edwin T. Merrick, Ralph J. Schwarz, and Morris B. Redmann, all of New Orleans, La., for appellant.
Edouard F. Henriques, Sp. Asst. in Admiralty to U.S. Atty., of New Orleans, La., for appellee.
Before WALKER, BRYAN and FOSTER, Circuit Judges.
This is an appeal in admiralty from a decree dismissing a libel which sought to recover damages for delay in delivery of a shipment of coffee from Victoria, Brazil, to New Orleans.
On May 31, 1920, Gerhardt Co. delivered to the United States Shipping Board Emergency Fleet Corporation, appellee, at Victoria, 2,000 bags of coffee for transportation to New Orleans; and on the same date appellee issued its bills of lading calling for delivery in New Orleans to a bank which transferred them to appellant, the purchaser. The bills of lading provided for transportation by appellee's steamer Tuladi "or other steamer or steamers," whether belonging to it or not. The bills of lading were issued, as was the custom at Victoria, while the coffee was on lighters under appellee's control, but whether before or after the Tuladi arrived in port is not clear from the evidence.
Until about the 1st of July of 1920 appellee had only three steamers that brought coffee to the United States from South American ports. Victoria was one of these, and, being the farthest north, was the last loading port. The Tuladi took only 400 of the 2,000 bags here involved; and appellee redelivered the remaining 1,600 bags to Gerhardt Co., taking their warehouse receipt therefor. As no other vessel of its line was expected for some time, it engaged space for the bags of coffee left over in the Lloyd Brasiliero steamer Campos, which was the next vessel expected. The Campos arrived at Victoria on the 14th of June, but while entering port struck a rock and was forced to abandon its voyage. On July 5, the steamer Uberaba arrived with space enough to take the balance of appellant's coffee, but actually took only 1,023 bags, which still left unshipped 577 of the bags included in the bills of lading held by appellant. The Uberaba sailed on July 16. Two other ships arrived at Victoria after the departure of the Tuladi and before the arrival of the Uberaba; but they may be left out of consideration, as appellant failed to meet the burden that was upon it to show that either of them had any available cargo space. After the Uberaba sailed, the Glenaffric arrived and could have carried the balance of appellant's coffee, but took only 149 bags. Finally the balance of 428 bags were shipped on the Easterner. The Tuladi arrived in New Orleans on June 23, the Uberaba on August 20, the Glenaffric on August 28, and the Easterner on September 27. In the meantime the market value of coffee at New Orleans had greatly declined, and was less, on the date of each successive arrival just above stated, than it had theretofore been since the issuance of the bills of lading. Gerhardt Co., without appellee's knowledge, substituted other coffee for appellant's coffee on the Uberaba and on the Glenaffric.
Appellant contends that the Tuladi's failure to take the entire shipment of 2,000 bags was due to improper stowage of cargo. It may be assumed that a claim for damages on that ground would be sustainable if the bills of lading had been issued on behalf of that steamer. But they were not so issued. On the contrary, the obligation was, in substance, to transport by the Tuladi or by any other steamer. The extent of appellant's obligation, therefore, was to carry within a reasonable time. United States Shipping Board v. Texas Star Flour Mills (C.C.A.) 12 F.2d 9. What should be considered a reasonable time depends upon the facts and circumstances of each particular case. Victoria was not a port where many outgoing vessels bound for New Orleans were to be expected. Under all the circumstances we are of opinion that a shipment on the Uberaba would have satisfied the requirement as to time. It is admitted that the last-named steamer could have taken the whole 1,600 bags which the Tuladi did not take. Appellee seeks to shift the blame for its failure to do this to Gerhardt Co., who, instead of redelivering appellant's coffee, called for by their warehouse receipts, substituted without appellee's knowledge, the coffee of other consignees. Gerhardt Co. accepted redelivery in their capacity as warehousemen, not from the consignee, but from the carrier; and this was done after the issuance of the bills of lading. Delivery, according to a custom of the port, on board lighters under appellee's control, constituted a good delivery to appellee, and was therefore sufficient to render the bills of lading binding obligations. Bulkley v. Naumkeag Cotton Co., 24 How. 386, 16 L. Ed. 599. Upon issuing its bills of lading, it became appellee's duty to see to it that delivery was made only to the holder thereof. Pollard v. Vinton, 105 U.S. 7, 26 L. Ed. 998. It could not return the goods to the shipper and escape liability for delay, but was responsible for the safe-keeping and return of the coffee subsequently deposited with Gerhardt Co. as warehousemen. Appellant was entitled to rely on the bills of lading. Appellee is therefore liable for the delay in delivery of the 577 bags of coffee that occurred after the date of arrival in New Orleans of the Uberaba. The measure of damages is the difference between the market value on the date when these 577 bags should have been delivered and the dates when they were in fact delivered. United States Shipping Board v. Florida Grain Elevator Co. (C.C.A.) 20 F.2d 583.
The decree is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.
On Petition for Reconsideration and Correction of Decree.
The petition of the appellee in the above numbered and entitled cause for a reconsideration and correction of the decree therein is denied.