Halpern, Crahay and Wood.
In its complaint seeking money damages plaintiff Semi Metals, Inc. (Semi Metals), a subsidiary of General Instrument Corp. (General), alleged delivery of two cartons of germanium metal to defendant Pinter Brothers (Pinter) for shipment, under a uniform straight bill of lading, to the Sylvania Electric Company in Pennsylvania. Defendant Eastern Freight Ways, Inc. (Eastern) was to be the connecting carrier in the transmittal. Plaintiff contended that the metal was thereafter "lost, stolen or converted." (A second count in the complaint, grounded in the same factual allegations, asserted a bailment of the metal and loss through negligence.)
It was stipulated that the full value of the goods was $19,280. Defendants included in their answers as a separate defense that plaintiff's damages, if any, were limited by the terms of the bill of lading under which the germanium was shipped.
Following a trial without a jury the trial judge entered judgment in favor of plaintiff in the sum of $19,280 without interest against Pinter. Eastern had a judgment of dismissal. The trial judge's reasons were reported. Semi Metals, Inc. v. Pinter Bros., 126 N.J. Super. 124 (Law Div. 1973). Pinter appeals, asserting essentially that
I. Since the trial court found as a fact that plaintiff had committed an "intentional misdescription" of the contents of the shipment, recovery was barred.
II. Even if plaintiff is entitled to recover, appellants' liability is limited by tariffs filed with the Interstate Commerce Commission.
III. If there is any liability owing to plaintiff, responsibility therefor should be borne by co-defendant Eastern.
Semi Metals cross-appeals, asking that the judgment be modified to include interest.
We are satisfied that, as between defendants Pinter and Eastern, the trial judge on this record correctly held that Pinter was the liable carrier, and we affirm that holding
essentially for the reasons given by the trial court, 126 N.J. Super. at 128. However, we perceive that the trial judge erred in the quantum of damages assessed and reverse on that score. It may be illuminative to enlarge on the factual recitation set out below.
Two cartons of germanium scrap weighing 225 pounds were received by Pinter from Semi Metals on August 17, 1970. Germanium is a semi-precious metal used in the manufacture of electronic equipment. In August 1970 it had a value of between $220 and $260 a kilogram. (In view of the stipulation we calculate the value to be slightly in excess of $85 a pound.)
The two cartons were picked up by a truck driver employed by Pinter at Semi Metals' plant and placed on one of its trucks, and thereafter have not been accounted for.
Semi Metals prepared the bill of lading for the transmittal of the germanium and it chose to describe the shipment as "2 ctns. Electronic Material". That labeling was twice referred to by the trial court as an intentional misdescription.*fn1 ...