September 2, 1938.
Hayden, Merritt, Summers Bucey, of Seattle, Wash., for libelant.
Bogle, Bogle Gates, of Seattle, Wash., for claimant and respondents.
In Admiralty. Libel for cargo damage by the Everett Pulp Paper Company against the McCormick Steamship Company and the steamer Peter Helms, her engines, tackle, boilers, apparel, and furniture, of which the McCormick Steamship Company was the claimant.
Order in accordance with opinion.
Action for cargo damage. Exceptions to amended libel.
The cause of action of the amended libel is predicated upon alleged wrongful on-deck stowage contrary to any stowage right of the carrier under a contract of carriage alleged to be a "clean bill of lading" calling for under-deck stowage. But libelant's stipulation setting forth a copy of the bill of lading amends the amended libel by showing from the bill of lading itself that "* * * the right to carry said merchandise on deck or under deck * * *" is expressly reserved to the carrier (see first un-numbered paragraph on back of bill of lading, attached to stipulation).
Thus by a term of the carriage contract the carrier reserved the right, to which the shipper assented by accepting the bill of lading, to, at carrier's option, stow the cargo on deck. No contract, right or duty, other than that contained in the bill of lading, is alleged. The bill of lading here is not "a clean bill of lading", within the ruling of the St. Johns Case, St. Johns N.F. Shipping Corp. v. S.A. Companhia Geral Commercial do Rio de Janeiro, 263 U.S. 119, 44 S.Ct. 30, 68 L. Ed. 201, requiring under-deck stowage where the carriage contract, following a previous preliminary contract between the parties granting an option, is silent as to the place of stowage, because here, instead of remaining silent on the question, the bill of lading, constituting the only disclosed agreement, preliminary or otherwise, between the parties, expressly provides for either on-deck or under-deck stowage. The parties may lawfully stipulate for on-deck stowage (Davidson v. Flood Bros., 9 Cir., 30 F.2d 279), and they did so, in this case. By stowing on deck, the carrier only did what, by the express terms of the contract, it had the stipulated right to do.
Since the bill of lading relating to place of stowage negatives the allegations of the amended libel on that point, claimant's Exception II will be sustained.
Without the allegation disclosing the carrier's duty to stow under deck, the amended libel does not sufficiently state a cause of action, and so claimant's Exception I will also be sustained.
The foregoing sufficiently disposes of the matter without a ruling upon the remaining exceptions.
An order may be settled upon notice or stipulation.