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Blumenthal Import Corp. v. Brocklebank

decided.: March 28, 1945.

BLUMENTHAL IMPORT CORPORATION
v.
THOS. & JNO. BROCKLEBANK, LIMITED.



Author: Mclaughlin

Before GOODRICH and McLAUGHLIN, Circuit Judges, and GANEY, District Judge.

McLAUGHLIN, Circuit Judge.

This is an admiralty matter involving damages to a certain lot of wool which had been shipped from Alexandria, Egypt, to Philadelphia, Pennsylvania. The libellant based its contention upon a bill of lading which was issued at Alexandria November 5, 1938, by William Stapledon & Sons "as agents." The first paragraph of this, which is unnumbered, reads:

"Shipped in apparent good order and condition unless otherwise stated in the margin by Gabra S. Zariffa on board the ship 'Tzar Ferdinand' in or off the port of Alexandria 133 (One hundred and thirty three) Packages and/or Pieces, marked and numbered as per margin to be conveyed by the above and/or any vessel or vessels to which transhipment may be made by the route and/or methods of conveyance and subject to the conditions and exceptions both general and special hereinafter mentioned and to be delivered subject to the like conditions and exceptions at the port of Philadelphia or so near thereto as she may safely get, unto Chase National Bank of the City of New York, or his or their assigns, he or they paying freight at the rate of: -

"As arranged."

By the Ninth paragraph the shipper constituted the carrier his agent for transhipment and forwarding. The final paragraph reads:

"In Witness whereof the master or agent of the said ship has signed two Bills of Lading, all of this tenor and date, one of which being accomplished, the others shall stand void.

"Dated at Alexandria, 5th, November 1938."

"For Wm. Stapledon & Son

(Indistinguishable signature)

"As Agents."

On the top left hand margin of the bill of lading is printed, "Wm. Stapledon & Sons. Port Said and Port Tewfik (Suez)." Under this appears a ship's flag with the initials W S & S on it. Then follows a typed description of the wool. After that is stamped "Freight Prepaid" with an indistinguishable date. Below that is "Notify arrival to Messrs. Blumenthal Import Corporation, 75 West Street, New York." Directly under that and in typewriting is the language: "With transhipment at port Said per s.s. 'Macharda'."

At the bottom of the margin is the printed clause: "Subject to all the terms and conditions contained in the bills of lading at present in use by: (and then typed in, appears the following name and address) Messrs. Thos. & Jno. Brocklebank Ltd., Liverpool."

The bill of lading also provides that it "* * * shall be construed and governed by English Law * * *" but as there has been no proof by either side as to the law of England, the bill of lading must be construed in accordance with our general mercantile law. In Liverpool & G. W. Steam Co. v. Phenix Ins. Co., ...


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