Opinion
Nos. 11460, 11463.
Argued May 20, 1955.
Decided May 31, 1955.
Thomas F. Mount, Philadelphia, Pa., (Rawle Henderson, Joseph W. Henderson, Philadelphia, on the brief), for Sociedad Armadora Aristomenis, Panama, S.A.
Thomas E. Byrne, Jr., Philadelphia, Pa. (Krusen, Evans Shaw, Philadelphia, Pa., on the brief), for Isbrandtsen Co.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
On respondent's appeal No. 11,460, we think that Judge Grim in the district court was sound in his decision that the charge of the Philippine Government amounting to $1 a ton on the sugar involved was a tax and not a charge for wharfage.
The record supports the disallowance of the setoffs urged by respondent for dispatching and for alleged short delivery.
As to the remaining item for damaged cargo and liability for extra stevedoring, there is ample testimony substantiating the conclusion that libellant had used due care. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6.
Nor can we under the McAllister decision hold that the disallowance of libellant's claims in No. 11,463 for additional freight, for demurrage at Iloilo and for excess wharfage at Philadelphia was improper.
The decree of the district court, 122 F. Supp. 892, will be affirmed.