Dreier, J.c.c., temporarily assigned.
This motion for partial summary judgment addresses the narrow issue of "patency" in the context of a common carrier's liability for damage to goods negligently loaded by the shipper.
Plaintiff, a common carrier engaged in the business of rigging, hauling and trucking, initiated this lawsuit to recover on its contract with General Electric (G.E.), for the unloading, repacking and reloading of certain equipment on September 10, 1975. The transaction underlying G.E.'s counterclaim is an earlier contract of carriage of January 10, 1975, during which it is alleged that plaintiff was negligent in transporting a G.E. rotor from defendant's service shop in North Bergen to the Public Service Electric & Gas Company generating station in Burlington. G.E. moved here for partial summary judgment on its counterclaim for damages sustained to the rotor.
Depositions of plaintiff's driver, Anthony Hines, form the factual basis of the motion. A driver of 16 years' experience, Hines was accustomed to handling and hauling large equipment. Upon being dispatched to pick up and deliver the rotor, Hines arrived at defendant's shipping office at about 3 P.M. The loading of the rotor began at about six or seven o'clock
that evening, G.E. personnel assuming direct responsibility for loading the rotor onto the truck. An overhead crane was used to lower the rotor onto blocking that was supplied by and positioned on the bed of the trailer by G.E. personnel. After the rotor was loaded onto the blocks, "chocks" were then nailed to the front of the blocking to prevent sliding. A tarpaulin was then placed over the equipment by Hines and nailed down to the floor of the trailer to protect the equipment from external moisture. Hines then, pursuant to instructions from G.E. personnel, wrapped the chains directly over the top of the piece and placed 2"x4" blocks under it so that the chain would not touch the piece itself. G.E. personnel expressed concern over the retaining ring on the rotor, and Hines was told that the ring was not to touch anything and that there was to be no weight put on it. In directing the chaining of the rotor, Hines again was told not to put a chain on the retaining ring. This chaining process was summarized by Hines as follows:
A. They told me where to put the chains. They did tell me where to put the chains and they told me how to put the chains on. I made a suggestion as to how to chain it and they rejected it. I put the chains over the piece. They helped me to put the blocks under the chains and then one man helped me to tighten the chains down, too.
Hines left the G.E. facility at about 8 P.M. After proceeding south on Tonnelle Avenue, approximately one-half mile from the G.E. facility, Hines was cut off by a car that swerved in front of him. He came to an abrupt halt and heard a loud thump. He got out of his truck to check the load, but could not see any damage because the tarpaulin covering the piece had been nailed to the floor. He observed that the chains around the equipment were intact and proceeded to his destination.
When he arrived at the facility in Burlington it was discovered that the machine had shifted. The delivery was rejected and the load was returned to G.E. Further examination
revealed that the rotor had evidently slid forward and the retaining ring came to rest on the trailer, causing the damage complained of.
The applicable law is not seriously disputed. At common law, a common carrier was the virtual insurer of all goods coming into his charge. As the case law developed, however, certain exceptions to liability evolved. As stated in Jos. Toker Co., Inc. v. Lehigh Valley R.R. Co. , 12 N.J. 608 (1953);
The original exceptions were confined to losses resulting from acts of God or the public enemy but they have now been expanded to certain other losses including those resulting from the inherent nature of the property ...