author: Moylan, J.,

text:
    ORIENT OVERSEAS LINE et al. v. GLOBEMASTER BALTIMORE, INC. et al.
    [No. 437,
    September Term, 1975.]

      Decided November 1, 1976.

      The cause was argued before Thompson, Moylan, Powers and Moore, JJ.

      Richard R. Jackson, Jr., and John C. Baldwin, with whom were Ober, Grimes & Shriver on the brief, for appellants Orient Overseas Line and Overseas Maritime Company.

      Howard G. Goldberg, with whom were Phillips L. Goldsborough, III, and Smith, Somerville & Case on the brief, for appellant — cross-appellee John T. Clark & Son of Maryland, Inc.

      David W. Skeen, with whom were John II. Skeen, Jr., and Skeen & Roach on the brief, for appellees — cross-appellant Globemaster Baltimore, Inc.

      Francis J. Gorman, with whom were Semmes, Bowen & Semmes on the brief, for appellee The Cottman Company.
   Moylan, J.,

delivered the opinion of the Court.

Globemaster Baltimore, Inc. (Globemaster), consignee of cargo listed in two ocean bills of lading and assignee of cargo listed in four others, filed a suit in the Superior Court of Baltimore City against Orient Overseas Line and Overseas Maritime Company (Overseas), owners and operators of the S.S. Hongkong Merchant (Merchant) and the S.S. Hongkong Mariner (Mariner)-, John T. Clark & Son of Maryland, Inc. (Clark), discharging stevedore; and the Cottman Company (Cottman), the operator of a terminal at Pier 8, Canton Railroad, seeking damages for shortages in the cargo, consisting of handtools, shipped on Overseas’ two ocean-plying vessels from Kobe, Japan, to the Port of Baltimore. Overseas, in turn, filed cross-claims against Clark and Cottman seeking indemnity. After a three-day non-jury trial, Judge Solomon Liss issued an oral opinion on March 14, 1975, finding all three defendants failed to use reasonable care in the handling of the cargo and entered a verdict in favor of Globemaster in the amount of $16,795.02, representing the value of the lost cargo and a proportionate share of the shipping costs and brokerage charges. Judge Liss, however, denied certain other items of damages claimed by Globemaster, including a $5,000 pre-judgment interest claim. Judge Liss also denied Overseas’ cross-claims for indemnity against Clark and Cottman, holding that “each of the defendants had been negligent in the handling of the cargo and that, therefore, they were not entitled to. recover against each other.” The defendants were held jointly and severally liable under. Maryland law, with no apportionment of damages based on degrees of negligence. Overseas and Clark appeal the judgments entered against them. Overseas also appeals the denial of its cross-claims. Globemaster appeals on the issue of damages. Cottman has filed no appeal.

In May of 4970, Globemaster entered into a contract with Overseas, through six ocean bills of lading issued in Japan, to have shipped, from Japan to Baltimore, 10,888 cardboard cartons of handtools. The first shipment of 7,316 cartons was loaded aboard the Merchant, which arrived at Pier 8 in the Lower Canton section of the Port of Baltimore on June 26, 1970. The cargo was discharged immediately and the ship resumed her voyage. Several weeks later, the Mariner arrived with the remaining 3,572 cartons. The cargo was discharged on July 15, 1970, and the ship departed immediately. Both vessels had made stops at other ports before arriving in Baltimore. Longshoremen in those ports, while discharging other cargo, had worked in the same holds where the Globemaster cargo was stored. There was no partition separating the Globemaster cargo from other cargo.

The Mate’s Receipts for the Merchant, which were prepared by a member of the crew of the Merchant at the time the cargo was loaded aboard to check the number of cartons and their condition, contain either the partially handwritten and partially stamped notation in the exceptions portion: “Ship’s N/R (not responsible) for cover torn, loss, shortage and/or Condition of Contents” or the stamped notation: “Ship N/R for breakage and/or condition of contents.” The several receipts for the Mariner which were introduced into evidence contain no notation in the exceptions portion. Overseas sought to explain that the notations were general disclaimers of responsibility for the contents and the sufficiency of the packaging to withstand normal handling and did not admit any shortage or damage to the inside of the cartons. Clean bills of lading, containing no notations or disclaimers as to shortage, were issued by Overseas on both shipments.

Overseas’ local agent in Baltimore, Thor Eckert Maritime Agencies, Inc. (Eckert), retained Cottman, which operated a transit shed at Pier 8, to perform terminal operations for Overseas’ vessels and their cargoes. Eckert paid Cottman a dockage charge which permitted the vessels to tie up at the pier and a wharfage charge which permitted the cargo to be unloaded onto the pier and remain warehoused within the transit shed for five days following a discharge, after which time Cottman received demurrage charges from the cargo receiver, Globemaster, for pier storage and retained a lien on the goods until the charges were paid.

Eckert also retained Clark to perform the stevedoring services on the two shipments, which entailed unloading the cargo, tallying it, and then placing it within Cottman’s shed. Longshoremen employed by Clark unloaded the cartons of handtools from the Merchant and the Mariner on June 26, 1970, and July 15, 1970, respectively. On each occasion, the cartons were stacked by the longshoremen on pallets, or drafts, removed from the vessel and placed on the pier apron adjacent to the vessel for checking by “checkers” or “tallymen” employed by Clark. The checkers were to tally the cargo and take exception to any damage or shortage in the cargo before the longshoremen placed the cargo in Cottman’s shed.

Based on freight lists, or “manifests,” which Overseas had forwarded to Eckert of all cargo aboard the vessels, Eckert had prepared Tally Records for use by Clark in checking the cargo upon arrival. These records contained the name of the vessel and its arrival date. They also identified the Globemaster cargo by bill of lading, commodity, markings, number of cartons and weight. Clark’s checkers indicated the number of cartons removed from the vessels on “ditto sheets,” which were copies of the freight lists or “manifests,” and the sections in Cottman’s shed where these cartons were placed. These notations were then transferred in Clark’s office to the official Tally Records. The testimony revealed, however, that Clark’s count was actually an estimate rather than an actual count. Because union rules prohibited the checkers from handling the cargo, they had to rely on a visual estimate of the number of cartons on a pallet. Thomas E. Hughes, one of Clark’s checkers, testified that, from an external inspection, a checker can only see approximately 44 of the 64 cartons on an average draft. No exceptions were, furthermore, taken on the Tally Records as to the condition and number of cartons of Globemaster cargo removed from the vessels. A copy of the completed Tally Records was forwarded to Eckert and to Cottman. Eckert would have transferred any notations on the Tally Records to the freight lists. The only notations that appear on the freight lists as to the Globemaster cargo are “Nil” and “All acc for.” Cottman made no independent tally or inspection of the cargo when it was unloaded from the vessels and stored in the transit shed.

Edward Yealdhall was the pier superintendent for Cottman in 1970, at the time the Globemaster cargo arrived. He was present when the cargo was discharged from both the Merchant and the Mariner and stored in the transit shed. He testified that when the Merchant arrived, the cargo that was unloaded was in “very bad order” with loose tools lying in the middle of the pallets. Yealdhall testified that he went on board the Merchant to see if the cargo was being handled and stored properly. There he saw loose tools and broken cartons in the hatch. Other cargo had been stored on top of the Globemaster cargo. Yealdhall stated that when the pallet-loads of cardboard cartons were stacked three or four high on the pier, more cartons fell and broke open. As a result, Yealdhall testified that he complained to “Sailor,” Edward Wos, Clark’s stevedoring superintendent. “Sailor” told him to get in touch with Steven Byan, who was then the Vice-President of Clark. Yealdhall stated, however, that even after he reached Steven Byan, nothing was ever done to remedy the situation. When the Mariner arrived, the cargo was in the same condition. Yealdhall testified that he again complained to his superiors.

Yealdhall described the Cottman shed as a long, enclosed shed, approximately 500 by 130 or 140 feet, with three doors on the west or land side and a big opening at the head of the pier for trucks to enter and exit. The east side was the loading side, and the west side was the delivery side. His office was on the northwest side of the pier. The shed was not partitioned on the inside with the exception of a galvanized wire cage, approximately 75 by 150 feet at the south side of the pier for securing “hot” or highly pilferable cargo. The cage had a lock on its only entrance and was covered on the top with barbed wire. It was in this cage that Yealdhall testified he placed some of the very badly broken cartons for safekeeping. Other broken cartons, however, were not placed in the cage until the truckers, who arrived on numerous occasions sometime later to pick up the cargo, rejected the broken cartons.

The cargo from the Merchant, which was discharged on June 26, was picked up intermittently from July 9 through July 20. The cargo from the Mariner, which was discharged on July 15, was picked up intermittently from July 22 through August 5. During this time, 10,190 of the 10,888 cartons shipped were picked up for Globemaster by Phillips Brothers Trucking Company. The remaining cartons were either rejected by the truckers or were missing. Between August 14 and August 24, Globemaster submitted formal written claims to Overseas based on shortages in the cargo of the two vessels.

Sanford Disney, the Assistant Vice-President of Cottman in charge of terminal operations, testified that 698 cartons of the Globemaster cargo were either rejected by the truckers or were found missing. When a final pickup was made of these cartons from Cottman’s security cage on September 30, 1970, 398 cartons were picked up, 65 of which were entirely empty; 300 cartons were missing completely. Disney testified that the Globemaster cargo he saw in the “cage,” as is true of much cargo from the Orient, was “flimsily” packed and that he had contacted the vessels’ agent, Eckert, and notified Eckert of the poor condition of the cargo. Disney testified that, as a general practice, Cottman does not count cargo being unloaded from a ship, that this would entail duplicating the efforts of the longshoremen. Instead, Cottman relied on the longshoremen’s tally and on the figures furnished it by the steamship company. A count of the Globemaster cargo was made, however, by Cottman’s checkers when the truckers arrived.

Gerhard Widderich, who was the manager for Eckert in June and July, 1970, testified that no exceptions were taken on the tally records as to the Globemaster cargo. Nor did the mates on the ships, who would normally call him when there was some trouble with cargo, do so in this case. Not until July 28, in a telephone call from Cottman, did Widderich learn of the damage to the Globemaster cargo. He then went down to the pier and looked at the cargo. He saw loose tools on the ground and cartons ripped open. As a result, he ordered an independent survey by the firm of Edward F. Carter & Associates, Inc. Widderich testified that had Eckert known sooner that the cargo was damaged on the vessels, it would have attempted to recooper. He admitted, however, that in June and July, 1970, Eckert was partly owned by Clark and was, in fact, located in the same downtown Baltimore offices. Steven By an, then Vice-President of Clark, was, in fact, Executive Vice-President of Eckert.

Edward H. Mester, the Vice-President and Secretary of the Cottman Company, reiterated that the terminal operator does not count palletized cargo at the time of the unloading because of the expense involved but that a count is made when delivery takes place to either trailers or to trucks. He said that it is the stevedores’ responsibility to inform the ship if they find damaged cargo in the ship. He stated that it is the responsibility of the terminal operator to maintain a safe and reasonable place of storage. If cargo comes off a ship in torn cartons, the terminal operator will notify the stevedores so that they can recooper the cargo. If the cartons that need retaping are few, however, the terminal operator will many times do it himself. If there are many cartons that need retaping, however, it is, he testified, the ultimate responsibility of the shipper. The stevedores recooper at their own expense, however, where the cargo is damaged while being discharged.

Mester testified that several days after the discharge of the cargo from the Merchant he received a phone call from Yealdhall informing him of the damaged condition of the cargo unloaded from the ship. He told Yealdhall to contact Clark to recooper the cargo. He testified, however, that Clark did nothing about the situation. As a result of the phone call from Yealdhall, Mester personally went down to the pier to inspect the cargo. He testified that although a majority of the cartons were in good condition, a considerable amount, however, was not. He had already previously instructed Yealdhall, he testified, to put the damaged cartons in the cage. He took photographs, which were introduced into evidence, of these damaged cartons in the cage. Mester saw similar cartons outside the cage. There were broken and loose cartons in the middle of pallets. As a result, he told Yealdhall to put the balance of the damaged cartons in the cage. He could only speculate that this was not done in the first place because many of the broken cartons must have been surrounded by other good cargo and, therefore, were difficult to reach. He did not initiate a survey of the cargo, however, nor did he call the Customs Service to investigate whether or not there was a theft of any of the cargo. Other than the phone calls to Clark, Mester testified that, to his knowledge, no written complaint was made to Clark.

Thomas E. Hughes, who was relief clerk for Clark (relieving the checkers for brief periods of time) on the day the cargo from the Merchant was discharged, testified that the two or three last drafts of Globemaster cargo contained loose handtools in the centers. He testified, however, that the damage was slight. He stated that no exceptions were taken, furthermore, because the damage “wasn’t that bad.” When asked by the court whether the photographs taken by Mester of the cartons in the cage were a fair representation of the condition of some of the cartons that came out of the ship, he answered, “No” — none of the cartons that came off the ship looked that way. He testified that had the cartons been in that condition Eckert would have been notified immediately and a survey initiated. He stated that the ship personnel saw the unloading of the ships. If the cartons had been in that condition, the ship personnel would have seen them.

Steven Byan, then Vice-President of Clark, testified that, from what he could recall in visits to the Merchant and the Mariner, most of the cargo was in generally good condition. He testified that his ship foreman called him when the Merchant arrived and told him that “Things are in a hell of a mess.” He said, however, that when he saw the cargo, it wasn’t “in a hell of a mess.” Although there was some minor damage, it was not enough to warrant calling a surveyor or instructing the Cottman Company or notifying Globemaster or its agent. He testified, however, that exceptions should have been taken to the cargo.

Since Cottman has not appealed from the judgment below, its liability to Globemaster is not contested here. Only the judgments holding Overseas and Clark also liable to Globemaster are in issue. In deciding whether the trial court was correct in its judgment, we must look at all of the court’s factual findings, unless clearly erroneous, in the light of the applicable law.

As to Overseas and Clark, federal substantive maritime law governs. Globemaster’s claims against Overseas were based upon the six ocean bills of lading. The bill of lading serves as a contract of carriage between a cargo shipper and an ocean carrier and, therefore, being maritime in nature, falls within the admiralty jurisdiction of the United‘States district courts, conferred by the Judiciary Article of the Constitution, U.S.C. Const. Art. Ill, § 2, Cl. 1, and by the provisions of § 9 of the Judiciary Act of 1789, 1 Stat. 76-77, 28 U.S.C., § 1333. David Crystal, Inc. v. Cunard S.S. Co., 223 F. Supp. 273, 284 (S.D.N.Y. 1963), aff'd. 339 F. 2d 295 (2nd Cir. 1964); Eutectic Corp. v. M/V Gudmundra, 367 F. Supp. 681, 685 (S.D.N.Y. 1973). Globemaster’s claims against Clark for negligence in the discharge of the cargo are also clearly within admiralty jurisdiction. See Herd & Co. v. Krawill Machinery Corp., 359 U. S. 297, 79 S. Ct. 766, 3 L.Ed.2d 820. If an action which is cognizable in admiralty is brought in a state court under the “saving to suitors” clause, 28 U.S.C., § 1333 (l),* the state must apply substantive maritime law. Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 628, 79 S. Ct. 406, 3 L.Ed.2d 550; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409, 74 S. Ct. 202, 98 L. Ed. 143; Farrell Lines, Inc. v. Devline, 211 Md. 404, 415; Frazier v. Waterman S.S. Corp., 206 Md. 434, 448; Pine Street Trading Corp. v. Farrell Lines, Inc., 278 Md. 363 (1976).

Globemaster v. Overseas

Overseas’s obligation in relation to the care, custody, and discharge of the cargo “from the time when the goods [were] loaded on to the time when they [were] discharged from the ship” was governed by the provisions of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300 et seq 46 U.S.C. § 1301 (e). Under the provisions of this act, Overseas was obligated to “properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” 46 U.S.C. § 1303 (2). Upon arrival of the vessels at the contractual port of delivery, Overseas was obligated to effect “proper delivery” under the provisions of the Harter Act, 46 U.S.C. §§ 190 et seq.* 2 “Proper delivery” within the provisions of this act means either actual or constructive delivery. Actual delivery consists in completely transferring the possession and control of goods from the vessel to the consignee or his agent. Constructive delivery occurs where the goods are discharged from the ship upon a fit wharf and the consignee receives due and reasonable notice that the goods have been discharged and has a reasonable opportunity to remove the goods or put them under proper care and custody. J. Kinderman and Sons v. Nippon Yusen Kaisha Lines, 322 F. Supp. 939 (E.D. Pa. 1971); National Packaging Corp. v. Nippon Yusen Kaisha, 354 F. Supp. 986 (N.D. Cal. 1972). Upon “proper delivery” the Harter Act ceases to govern the relationship between the parties, and a sea carrier’s strict liability, as such, terminates. Calcot, Ltd. v. Isbrandtsen Co., 318 F. 2d 669, 673 (1st Cir. 1963). See also Pine Street Trading Corp. v. Farrell Lines, Inc., supra. Thereafter, the carrier’s responsibilities are those of a bailee or warehouseman to take ordinary care of the property and not to abandon it or negligently expose it to injury. Consolidated Cork Corp. v. Jugoslavenska Linijska Plovidba, 318 F. Supp. 1209 (S.D.N.Y. 1970); Louis Furth, Inc. v. S.S. Srbija, 330 F. Supp. 305 (S.D.N.Y. 1970); H. Longley, Common Carriage of Cargo, § 11.09, at 100 (1967).

Although under the Harter Act, the carrier cannot, by the terms of its bill of lading, terminate all responsibility for the cargo upon discharge before “proper delivery,” the shipper and the carrier, however, may stipulate in their bills of lading that the carrier may fulfill its strict responsibilities as carrier upon delivery of the cargo from the ship’s tackle onto the pier. See W. Poor, Charter Parties and Ocean Bills of Lading, § 61, at 142 (5th ed. 1968) and 1974 Supplement, § 61, at 34; 70 Am.Jur.2d, Shipping, § 493. When they do so, the carrier’s status upon discharge of the cargo becomes that of á bailee. Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F. 2d 800, 807 n. 5 (2d Cir. 1971); David Crystal, Inc. v. Cunard S.S. Co., 339 F. 2d 295 (2d Cir. 1964), 297-298. The carrier’s general duties regarding delivery, nevertheless, remain the same. Absent the consignee, to constitute a “proper delivery” due and reasonable notice must be given to the consignee of the intended delivery and the goods must be placed in a suitable place and under proper care and custody. Constable v. National S.S. Co., 154 U. S. 51, 14 S. Ct. 1062, 38 L. Ed. 903 (1894).

Overseas contends that “proper delivery” was effected “within a very few days of discharging Globemaster cartons to Cottman’s Pier, since Arrival Notices had earlier been sent to Globemaster, thereby affording a fair and reasonable opportunity to remove the goods.” Overseas contends that it became a bailee upon discharge of the cargo and that its responsibilities as a bailee ended completely upon the expiration of the “free time” when Cottman’s agency relationship with Overseas ceased and Cottman’s obligations, as bailee for hire, became those of a warehouseman responsible only to Globemaster. See Grover-Ferguson Company, Inc. v. A/S Ivarans Rederi, 171 F. Supp. 766 (E.D. Pa. 1959). It is unnecessary, however, to decide when “proper delivery” was effected or when Overseas’ status as a carrier and bailee terminated, since it is clear, as will hereinafter appear, that the trial court’s judgment that Overseas is liable to Globemaster was based on conduct which occurred prior to discharge of the cargo.

Judge Liss imposed liability on Overseas, Clark, and Cottman on the basis that all three failed to use reasonable care in the handling of the cargo. As to Overseas, Judge Liss found specifically:

“[T]he bill of lading clearly indicates there was no exception taken to the delivery of merchandise by Globemaster in Kobe, Japan.
Now the merchandise is then delivered here in Baltimore, and the Court finds as a fact that the merchandise was delivered to Baltimore in a severely damaged condition. While the Court recognizes that Mr. Yealdhall, obviously, is going to put the best possible face on his testimony so as to absolve himself, if it’s possible to do so, even allowing for exaggeration, the Court finds there’s no question that a number of the cartons that were in the hold of that ship were in a broken condition; and that the merchandise was loose; that there were tools strewn about in the hold, or in various holds, and that there was substantial damage to the merchandise received, in the Port of Baltimore.
. . . the indication is that at least six percent of the cargo was not ultimately delivered, and I would think that figure is reasonably correct so far as the damage is concerned.
Now what is the effect assuming that the merchandise was, in fact, delivered to Baltimore in this condition? Then it seems to me that the ship was under an obligation to so note on its records, and to have the person who was in charge of the unloading or who, at least, was observing the unloading of the ship, take the necessary precautions to see that there was no further loss and to make the necessary notification, both to Globemaster and/or to Clark Company, and to The Cottman Company that there was a possibility that there would be some claim arising out of the condition of the merchandise. The ship failed to do so.
I do accept as a fact that the ship does not have someone watching the unloading of material from its holds. Common sense indicates to me that if only to prevent merchandise that should not be unloaded stolen and/or unloaded by mistake, that the ship either has or should have had someone on the premises to supervise what is going on. The Court believes that there was, and that apparently nothing was done about it, and that that is a failure to use reasonable care under the circumstances.”

Overseas argues that the finding of the trial court that the cargo arrived in Baltimore in a severely damaged condition was clearly erroneous and that, in any event, the trial court did not find a shortage of handtools upon discharge or while the cargo was in Clark’s possession before transfer to Cottman, nor could such a finding arise merely because of damage to the cardboard cartons. Overseas maintains that it fulfilled its duties both as carrier before discharge of the cargo and later as bailee during the five days “free time” following discharge of the cargo. It argues that it accounted for all of the cargo by means of the tally records compiled by Clark in the ordinary course of business and that Cottman, which made no independent tally, should have been estopped at the trial from questioning the accuracy of those records. Overseas states that Globemaster’s showing of a shortage in cargo many weeks after discharge did not amount to a showing that a shortage occurred during the time Overseas was responsible. It relies on the .presumption that where goods pass through the hands of successive custodians, in apparent good order, any loss is presumed to have occurred while they were under the control of the last custodian. Julius Klugman’s Sons v. Oceanic Steam Nav. Co., 42 F. 2d 461 (S.D.N.Y. 1930), citing Chicago & N.W. Ry. v. Whitnack Produce Co., 258 U. S. 369, 372 (1922). It contends further that under this presumption, which also applies under Maryland law (N.Y. & Balto. Trans. Line v. Baer, 118 Md. 73, 80), Gottman, which did not rebut the presumption, must bear the entire loss.

In deciding whether the trial court was clearly erroneous in its findings that the cargo arrived in Baltimore in a severely damaged condition and that Overseas did not use reasonable care in the handling of the cargo, we are, of course, guided by the “clearly erroneous” principle. “[T]he judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” Md. Rule 1086. The Second Circuit United States Court of Appeals, in applying in an admiralty case the “clearly erroneous” principle embodied in Federal Rule of Civil Procedure 52 (a), which is essentially the same as our Maryland rule, stated well the scope of our power of review:

“A fair statement of the rule is that we may not set aside a finding of fact unless we are left with the ‘definite and firm conviction that a mistake has been committed,’... and that we will reverse ‘most reluctantly and only when well persuaded.’... We must respect the evaluation of credibility made by the trial judge of the witnesses present before him.... What this comes down to in substance is that we must take a good, hard look at the record as a whole, and when all is said and done, given the unavoidable division of function between a trial and an appellate court, we should only reverse when fairly well persuaded.” M. W. Zack Metal Company v. S.S. Birmingham City, 311 F. 2d 334, at 337-338 (2d Cir. 1962).

Our function then is to examine the lower court’s findings in sufficient detail to determine whether or not each of them should stand or be set aside as clearly erroneous and then to determine whether or not they are decisive of the case in view of the applicable principles of law. M. W. Zack Metal Company v. S.S. Birmingham City, supra, 311 F. 2d at 338.

The trial court’s finding that “the merchandise was delivered to Baltimore in a severely damaged condition” by Overseas clearly referred to damage to the cardboard cartons and not to the handtools per se. Taking into account, as the trial judge did, the effort on the part of the witness Yealdhall, Cottman’s pier superintendent, “to put the best possible face on his testimony so as to absolve himself,” there was, nonetheless, sufficient testimony not only from Yealdhall but also from the witnesses Byan and Hughes that a number of cartons were broken in the hatches and that loose handtools were strewn about the holds of the vessels. As the cargo was unloaded, the loose handtools were placed in the middle of the pallets. We cannot say that the court’s finding that the merchandise was in a severely damaged condition upon discharge was clearly erroneous.

Overseas argues, however, that since Globemaster’s claim was for a shortage in handtools rather than damage to them, it is not liable to Globemaster since there was no showing of any loss before discharge or while the cargo was in Clark’s possession before transfer to Cottman.

The clean bills of lading were prima facie evidence that Overseas received the quantity of cargo specified therein and in good condition. 46 U.S.C. § 1303 (4). The burden then fell on the carrier to explain or account for the shortage in handtools upon delivery to the consignee. Scott v. W. R. Grace & Co., 275 F. 340 (2d Cir. 1921); Holden v. S.S. Kendall Fish, 212 F. Supp. 106 (E.D. La. 1962); Wirth Ltd. v. S.S. Acadia Forest, 376 F. Supp. 785 (E.D. La. 1974); Flota Mercante Del Estado v. Orient Ins. Co., 198 F. 2d 740 (5th Cir. 1952); 80 C.J.S., Shipping, § 154 (c) 2. Overseas denied any shortage upon discharge, relying on Clark’s tally records, or any loss whatsoever while it was responsible for the cargo. Judge Liss, properly we feel, gave no weight to the tally records as indicative of how much cargo was unloaded from the ships. Clark’s checker, Hughes, testified clearly that the tally made by the checkers was a rough estimate rather than an actual count. There was no indication, therefore, how much cargo was unloaded from the vessels.

Overseas, in the alternative, however, seeks to rely on a general principle of bailment law to relieve itself of liability. Where it is shown that goods when delivered to the consignee by the last of several custodians were short in quantity, the presumption is that the missing goods were delivered to such last custodian with the burden being upon him to explain the shortage. Julius Klugman’s Sons v. Oceanic Steam Nav. Co., 42 F. 2d 461, 1930 A.M.C. 1445 (S.D.N.Y. 1930). Overseas thus seeks to place responsibility for the shortage on Cottman. This presumption, however, does not apply in this case where the evidence clearly indicated that many of the cartons delivered to Cottman were broken and mashed and that many handtools were in a loose condition when Cottman received them. The cargo was not “in apparent good order.” 42 F. 2d at 462.

Independent of any liability based on Overseas’ failure to rebut the prima facie case against it by showing that it delivered all the cargo that it received, there was sufficient evidence that Overseas did not use reasonable care prior to discharge in protecting the cargo from damage and subsequent loss. The cargo was entrusted to Overseas for safe carriage and delivery. Regardless of how the cartons were broken in the holds of the vessels during transit, Overseas was obligated to take reasonable precautions to avoid further damage to them. This duty continued until “proper delivery” of the goods. Fabbri Co. v. Universal Shipping Corp., 310 F. Supp. 964 (S.D.N.Y. 1969). Its failure to notify Globemaster of the substantial damage to the cartons or to notify its agents, Clark and Cottman, to take the necessary precautions to avoid the inevitable possibility of pilferage or other loss constituted ample evidence of lack of reasonable care. This alone was enough to hold Overseas liable to Globemaster.

Globemaster v. Clark

As to Clark, Judge Liss found specifically:

“The Court further finds that the merchandise, as taken control of by Clark, was in a damaged condition; that Clark’s employees, through the documents which have been attempted to be introduced here as exculpating Clark — prepared documents which obviously are not substantiated by the facts — it’s admitted by Clark’s employees that the count that is made of the merchandise which is delivered to the terminal company is an estimate rather than an actual count — and since it is an estimate, so far as the Court is concerned, it does not have the probative value to prove that Clark did deliver to the pier what it says it delivered to the pier.
The Court also finds as a fact that a substantial portion of the merchandise was delivered to the terminal company in a broken condition, and that Clark failed to make any exceptions or note on its documents, indicating that it was delivering merchandise received in that condition, or that it made any effort whatsoever to give notice to Cottman or to Globemaster, or to the ship, that there were, in fact, problems with this particular shipment.”

Clark argues that there was no legally sufficient evidence to establish that its employees pilfered the cargo or that any of it disappeared while in its possession. Clark, in the alternative, relies upon N.Y. & Balto. Trans. Co. v. Baer, supra, at 118 Md. 80, for the legal presumption that where the plaintiff shows the quantity of goods delivered to the initial carrier and “upon the delivery to the consignee by the terminal carrier, there is found a shortage in the quantity of goods that had been delivered to the initial carrier, the presumption is, when such last named carrier is made defendant, that all the goods delivered to the initial carrier were received by the terminal carrier, and the burden is upon such terminal carrier of proving that the goods so delivered by it to the consignee were all the goods that came into its possession.” Clark argues that since Cottman did not make an independent count of the cargo nor verify Clark’s tally records, Cottman should bear responsibility for the shortage because it failed to produce any evidence as to the number of cartons it received.'Judge Liss found that Clark was negligent in failing to note the condition of the cargo on its discharge documents and in failing to give notice to the other parties of the condition of the cargo.

Clark argues on appeal, however, that this was not the proximate cause of the loss because representatives of Cottman and Overseas were present during the discharge operation and saw the condition of the cargo. Clark argues that it was rather Cottman’s failure to place all of the broken cartons in the cage that precipitated the loss. Clark relies again on N.Y. & Balto. Trans. Line v. Baer for the proposition that where a claim is for shortage as opposed to damage to cargo, whether or not a carton may have been damaged in transit and whether or not there was a failure to note such damage are irrelevant considerations.

As hereinbefore stated regarding Overseas’s contention, Clark’s reliance on the presumption from N.Y. & Balto. Trans. Co. v. Baer, supra, to place all responsibility for the shortage on Cottman is without substance. Although it is true that there was no evidence as to when the shortage in handtools actually occurred, there was ample evidence to support the trial court’s finding that Clark did not use reasonable care in handling the cargo which contributed to the loss.

A stevedore owes the same duty of care as the carrier under COGSA, that is to handle the discharge of the cargo properly and carefully. Interstate Steel Corp. v. S.S. Crystal Gem, 317 F. Supp. 112 (S.D.N.Y. 1970). “The stevedore must possess a reasonable degree of skill, expertise, and competence, and must use the care and diligence that ordinarily prudent and skillful persons would have used in the same circumstances.” Doak, Liabilities of Stevedores, Terminal Operators, and Other Handlers in Relation to Cargo, 45 Tulane L. Rev. 752, at 757 (1971). Where it fails to do so, it is liable to the cargo owner for the loss or damage caused by its negligence. Robert C. Herd & Co. v. Krawill Machinery Corp., supra.

The evidence established that many of the cartons delivered to Cottman were broken. The evidence established that despite the condition of the cartons upon discharge from the ships’ holds, the stevedores, nevertheless, stacked the pallet-loads of cardboard cartons unevenly on the pier and three or four tiers high. As a result, more cartons fell and broke open. Despite the condition of the cargo, no notification was given to Globemaster or the other parties to' take any special precautions. Although Clark’s Vice-President, Steven Byan, was aware of the condition of the cargo and admitted that exceptions should have been taken to the cargo, he did nothing to have the cartons recoopered. In addition, inaccurate tally records were prepared. In Demsey & Associates v. S.S. Sea Star, 321 F. Supp. 663 (S.D.N.Y. 1970), aff’d in part and rev’d in part on other grounds, 461 F. 2d 1009 (2d Cir. 1972), a case where cargo was damaged prior to discharge but where the stevedore, nevertheless, did not notify the consignee but proceeded to discharge the cargo and further damage it, the court, in speaking of the degree of care required of a stevedore, stated:

“The coils consigned to Interstate were discharged by Pittston [stevedore] in a negligent manner, and Pittston is liable to Interstate for the damage suffered by the coils during discharge at Chicago....
While Pittston contends that damage during discharge was unavoidable due to the damaged condition of many of the coils prior to discharge, the evidence establishes that substantial additional damage was due to Pittston’s improper discharge. While the unloading of the coils called for a high degree of professional skill, Pittston held itself out as possessing this professional skill. Had Pittston felt that the condition of the coils would risk substantial additional damage in unloading, it should have so notified Interstate prior to discharge.” (Citations omitted) 321 F. Supp. at 670-671.

In view of Clark’s inaccurate tally, its failure to take any exceptions to the cargo, and its manner of discharging the cargo, Clark cannot now disclaim all responsibility for any loss.

Overseas v. Clark and Cottman

Overseas contends that “the lower court erred as a matter of law in denying its cross-claims seeking full indemnity from Clark and/or Cottman when the cross-claims were based primarily upon breach of warranties running to Overseas from both of the cross-claim defendants as a matter of maritime contract.”

Overseas’s contract with Clark to unload and tally the Globemaster cargo and place it in Cottman’s shed was a maritime contract and is governed by substantive maritime law. American Stevedores, Inc. v. Porello, 330 U. S. 446, 456, 67 S. Ct. 847, 91 L. Ed. 1011 (1947). Under maritime law, a stevedore, absent a contrary contractual provision, gives the carrier an implied warranty of proper and workmanlike performance. Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Co., 350 U. S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956); David Crystal, Inc. v. Cunard S.S. Co., 339 F. 2d 295, 299 (2d Cir. 1964); Stein Hall & Co., Inc. v. S.S. Concordia Viking, 494 F. 2d 287 (2d Cir. 1974). This warranty has been characterized as “comparable to a manufacturer’s warranty of the soundness of its manufactured product.” Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Co., supra, 350 U. S. at 133-134. A stevedore’s negligence may be a breach of such warranty entitling the carrier to indemnity for the liability imposed on it by such substandard performances. Eutectic Corp. v. M/V Gudmundra, supra. Even absent negligence, however, under this warranty, liability has been imposed on the stevedore where the stevedore was in a better position than the shipowner to reduce the risk of damage or loss. Since this theory of indemnity is contractual, even the carrier’s concurrent negligence is not necessarily a bar to recovery. Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315, 84 S. Ct. 748, 11 L.Ed.2d 732 (1964). See generally Doak, Liabilities of Stevedores, Terminal Operators, and Other Handlers in Relation to Cargo, 45 Tulane L. Rev. 752 (1971).

Overseas also contends that its contract with Cottman permitting vessels to tie up at the pier and discharge cargo into the transit shed was a maritime contract and that under it Cottman gave the same implied warranty (under the law then applicable) as Clark to perform in a workmanlike manner. We need not reach this question, however. An extended discussion of Overseas’ indemnity claim against Clark and Cottman is unnecessary, since we agree that the trial court’s ruling that Overseas, on the basis of its conduct, is not entitled to indemnity was correct.

A carrier is liable to a shipper for the negligence of its agents — the stevedore and the terminal operator. Levatino Co. v. M/S Helvig Torm, 295 F. Supp. 725 (S.D.N.Y. 1968); Leather’s Best, Inc. v. S.S. Mormaclynx, supra. Indemnity principles allow a shipowner to recover, however, from the stevedore and the terminal operator where the shipowner is held liable for damage or loss caused by them. Where, for example, a shipper makes a prima facie case against a carrier on the basis of clean bills of lading and outturn of cargo in a short or damaged condition, the carrier may recover from the stevedore and/or terminal operator by proving the damages were caused by them. See Levatino Co. v. M/S Helvig Torm, supra. Judge Liss here did not rely, however, on the bills of lading as establishing a prima facie case against Overseas when it failed to show that it delivered all that it received but instead imposed liability on Overseas for failure to use reasonable care in the handling of the cargo prior to discharge. Whether Clark’s failure to provide an adequate tally of the cargo was a breach of its implied warranty of proper and workmanlike performance or whether Cottman, assuming it was bound by the same warranty, breached it by inadequately storing and protecting the cargo, are irrelevant considerations. The trial court was not wrong in holding that Overseas, based on its own conduct prior to discharge, is precluded from seeking indemnity. Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U. S. 563, 78 S. Ct. 438, 2 L.Ed.2d 491 (1958).

Damages

Globemaster’s cross-appeal on the issue of damages involves the trial court’s denial of pre-judgment interest and the refusal to allow recovery of U.S. Customs duty, inland freight charges, proportionate bank charges and proportionate insurance charges that were paid on the merchandise that was not delivered.

Howard Satter, Vice-President of Globemaster, testified on the issue of damages from a series of import claim sheets, which were introduced into evidence. He described each of the items of damages as follows:

1. Proportionate Customs duty: “. . . We paid U.S. Customs duty based upon the value of all the merchandise shown on that supplier’s invoice and on the bill of lading. We are now charging back the value of the duty that we paid out for the merchandise not received.”
2. Proportionate ocean freight: . . We paid ocean freight based upon the weight of the entire shipment as shown on the ocean bill of lading. We are now charging back a proportionate share of the amount of the ocean freight for the merchandise not received.”
3. Proportionate inland freight: “. .. we prorated that the same as we did the ocean freight.”
4. Proportionate bank charges: “We paid our supplier by letter of credit. Our bank drew an amount of money equal to the total value of the supplier’s invoices, and they are entitled to their fee for handling this transaction. We charged back a proportion of that amount of their fee to cover the value of the merchandise that we did not receive.”
5. Proportionate insurance charges: “We carry a marine insurance policy, and the policy is based upon the value of the merchandise shipped, which is the supplier’s invoices, and so we charge back the insurance on the merchandise not received.”

The following stipulation was then read into the record by the court:

“ [It is] agreed then, gentlemen, that this witness would testify as follows: ... that the total invoiced value of that merchandise which was not delivered to Globemaster amounted to $18,033.55; that the proportionate ocean freight would be $851.14; that the proportional duty would be $2,905.10; that the proportional inland freight would be $272.39; that the proportional bank charges would be $112.71; that the proportional insurance charges would be $105.87; and the proportional customs broker charges are $55.73, for the total of $22,336.70, less the invoice value of goods received not applicable to bills of lading involved in this action of $498.79, for a total of $21,837.70.”

On the basis of the evidence, the trial court made the following findings as to damages:

“The Court: . .. Now, as to the damage, I am going to accept Mr. Gorman’s value of $18,036.98, the proportionate share of shipping costs, $851.14, and the proportionate brokerage charge of $55.73. The Court will not allow the proportionate duty because the Court feels that the duty could have been recovered, or at least, an effort should have been made to recover the duty from U.S. Customs Service, and will not, under those circumstances, require the defendants to pay sums which are paid to the federal government rather than to them. The same thing is true with respect to the figure for Inland Freight. Since the freight figures were based on the cost of the merchandise actually received. Also, the bank charges strike me as being unusual under the circumstances, and the Court will not include these, nor will the Court include the insurance charges for the reasons Mr. Gorman indicates, and that is, no claim was made on the insurance company, and obviously no insurance charge should be charged against the defendants.
Now, Globemaster made a claim against Phillips, the inland trucker, for $2,148.00, representing merchandise not delivered by Phillips. A deduction of this amount from the gross figure leaves a net of $16,795.02.
The Court has considered the question of interest, and for a number of reasons, not the least of which is the fact that apparently this claim was delayed for a period of some three to four years, has decided not to grant interest, at least a portion of that delay is chargeable to Globemaster. In addition to which, I think Clark was not brought into the case until some three years had elapsed, plus the fact that there certainly were some substantial questions as to whether or not the defendants in this case were, in fact, liable to Globemaster. The granting of interest under these circumstances would amount to an unfair and unreasonable burden on the defendants if I added to the almost $17,000.00 an additional $5,000.00 in interest charges. Since it is discretionary with the Court, the Court will not grant interest and will not consider that in its decision.”

We see no error in the court’s disallowance of the above items of damages. With respect to the pre-judgment interest, we are well aware that this is a proper item of consideration in assessing damages in a case such as this. See Pine Street Trading Corporation v. Farrell Lines, Inc., supra. It is, nevertheless, an item which is in the sound discretion of the trial judge. Robert C. Herd & Co. v. Krawill Machinery Corporation, 256 F. 2d 946 (4th Cir. 1958). Based on the reasons given by the trial judge for the denial, we see no abuse of discretion. See Maryland Shipbuilding & Drydock Co. v. Patapsco Scrap Corp., 169 F. Supp. 605 (D. Md. 1959), aff'd. 268 F. 2d 817 (4th Cir. 1959).

Judgments affirmed; costs to be paid Va by appellants Overseas and Clark combined; 1/dh by appellant Overseas; Wdh by cross-appellant Globemaster.

      . This “saving to suitors” clause limits what might otherwise appear to be the exclusive, original jurisdiction of the federal district courts:
      “The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. ’’(The “saving to suitors” clause is underlined.)
      Instructive as to the purpose and the functioning of this saving clause is 2 C.J.S., Admiralty, § 13, “Saving of Remedies to Suitors,” pp. 104-105:
      “The ‘saving to suitors’ clause excepts from the exclusive maritime jurisdiction of the federal courts all cases in which suit may be brought to obtain other than admiralty remedies to which suitors are otherwise entitled.”
      “The remedies which the clause saves to suitors include common law actions and all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved____” “The saving clause is remedial, and was inserted in order to make it clear that the grant of judicial power in the United States in all cases of admiralty did not deprive the suitor of his common-law remedies.”
      The uncontested case law has held that under the provisions of this clause, a suitor asserting an in personam admiralty claim may elect to sue in a “common law” state court through an ordinary civil action rather than in federal court under the admiralty jurisdiction. Red Cross Line v. Atlantic Fruit Co., 44 S. Ct. 274, 264 U. S. 109, 68 L. Ed. 582; Chappell v. Bradshaw, 9 S. Ct. 40, 128 U. S. 132, 32 L. Ed. 369; Paduano v. Yamashita Kisen Kabushiki Kaisha, 221 F. 2d 615; Wunderlich v. Netherlands Ins. Co., 125 F. Supp. 877.

      . The enacting clause of COGSA provides that it shall apply to “every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade...”
      For a full discussion and analysis of the history and provisions of the act, see G. Gilmore & C. Black, The Law of Admiralty, 139-192 (2d ed. 1975).

      . Under the common law, a vessel owner engaged in common carriage of cargo was an insurer of the cargo against all loss or damage except that resulting from act of God and the public enemy, an inherent defect in the goods carried, or a fault of the shipper. Fire was added to the list by statute in 1851 so long as it was not due to the shipowner’s negligence or design. As such, the vessel could not lawfully exempt itself from liability for its negligence or that of its servants. Nevertheless, carriers inserted various clauses in their bills of lading restricting their liability. In some jurisdictions these clauses (including exculpatory negligence clauses) were enforced while in others they were not. The Harter Act of 1893 was passed in an attempt to prevent the carriers from avoiding their common-law responsibilities by the inclusion of these exculpatory clauses while at the same time securing to carriers statutory exemption from liability for certain losses. What the Harter Act did, however, was to secure very little additional benefit beyond that which the cargo interests already had under the common law while it exempted a carrier from liability for the negligence of its servants where the carrier exercised due diligence to make the vessel seaworthy in all respects. As a result of dissatisfaction with the Harter Act, COGSA was passed in 1936. It has largely supplanted the provisions of the Harter Act. The Harter Act still applies, however, to the period before cargo is loaded aboard a vessel for travel in foreign trade and to the period after discharge of the cargo until its “proper delivery.” H. Longley, Common Carriage of Cargo, §§ 1.01-1.06, at 1-5 (1967); Villareal, Carrier’s Responsibility to Cargo and Cargo’s to Carrier, 45 Tulane L. Rev. 770,773-774 (1971); 70 Am.Jur.2d, Shipping, § 519.

      . Maryland law applied to Globemaster’s claims against Cottman. Cottman acted as the agent of Overseas in performing the terminal operations and storing the cargo on its pier. As to Globemaster, however, it was merely a bailee of the cargo. It was not a party to the bill of lading — the contract of carriage — between Overseas and Globemaster. As such, it was not liable to Globemaster contractually for any loss or damage. Globemaster’s claims against Cottman were based on tortious conduct which occurred on land. It is clear, therefore, that the claim is not within federal admiralty jurisdiction but is governed by local law. Leather’s Best, Inc. v. S.S. Mormaclynx, supra, at 807-808, 813 (2d Cir. 1971).

      . Federal Rule of Civil Procedure 52 (a) provides in pertinent part: “Findings of fact shall not be set aside unless clearly erroneous,'- and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”


source: Caselaw Access Project

author: Eldridge, J.,

license: Public Domain

text:
    MORRIS SAMPLE a/k/a Edward Gatling a/k/a Leonard Grier v. STATE OF MARYLAND
    [No. 1170,
    September Term, 1975.]

      Decided November 3, 1976.

    The cause was argued before Marvin H. Smith and John C. Eldridge, Associate Judges of the Court of Appeals, and J. Harold Grady, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Henry E. Dugan, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A.

      Swisher, State’s Attorney for Baltimore City, and Michael Patryn, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

On this appeal from a conviction of storehouse breaking, we are presented with three questions: (1) whether a breaking out of a building is sufficient to satisfy the element of breaking required by the storehouse breaking statute, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 32; (2) if a breaking out is sufficient and is the basis for satisfying the “breaking” element of the statute, whether the value of goods actually taken at the time of the breaking out, absent any other evidence of intent at that time, is determinative of the intent element of Art. 27, § 32; and (3) whether the trial court erred in imposing sentence prior to obtaining a pre-sentence report.

The defendant-appellant was tried without a jury in the Criminal Court of Baltimore on charges of storehouse breaking with intent to take goods of a value of one hundred dollars or more in violation of Art. 27, § 32, and related counts. Lester Holtz, manager of Honey’s Saloon in Baltimore City, testified at the defendant’s trial that on June 10,1975, at about 2:00 a.m., he locked up the tavern and left the premises. Upon his return about two hours later, Mr. Holtz heard a noise coming from inside the tavern. He then went to the front door which, according to his testimony, was closed, but which had had its bolt and casing removed. Looking through a small peephole in the front door, Mr. Holtz observed the defendant shaking cigarettes out of a cigarette machine which had been taken apart. Mr. Holtz stepped to the street curb and signalled a passing police car for aid. He then returned to the front door and, when the defendant attempted to exit through the door, Mr. Holtz indicated that he slammed the door shut, trapping the defendant inside. The police then arrested the defendant.

Mr. Holtz further testified that a subsequent inspection of the premises revealed that “the back bar drawers had been ransacked and the cigarette machine was completely torn apart and all the cigarettes were dumped on the floor.” According to Mr. Holtz, all that was missing was approximately $5.00 which had been taken from the cigarette machine. The money was recovered following a search of the defendant. No tools or other implements used to force entry into the tavern were found.

At the trial the defendant testified that he did not force entry into the tavern but instead walked in through an open door. At the conclusion of all the evidence, he argued that he was entitled to an acquittal on the ground that the evidence did not reveal a breaking in. The trial judge rejected the argument, stating:

“Well, you can break out of something just like you can break in. Breaking out has the element of breaking, doesn’t it? Even if what he tells me is true, which I seriously doubt from all the evidence in this case, if he went in there—
“. . . and if he comes out like the gentleman said he did, comes out pushing the door out, that’s all you need. All you need is a slight movement. No, I have no doubt. I have no question. No doubt at all. Guilty as to the first count.”

The trial court found the defendant guilty of storehouse breaking with intent to steal goods valued at one hundred dollars or more, and the defendant appeals from that judgment.

(1)

Although the record reflects evidence upon which the trial judge could have found that the defendant broke into the building, the trial judge based his decision solely on the testimony that the defendant broke out of the tavern. While indicating some doubt concerning the defendant’s testimony that he walked through an open door, the court did not attempt to resolve the conflicting evidence concerning how entry was gained into the tavern. Rather, the court assumed that the defendant did not break into the tavern and chose to base its decision on the evidence that the defendant broke out of the tavern. This is not, then, a case where either no reasons or alternative reasons were offered by the trial court for its decision, and where an appellate court could, pursuant to Maryland Rule 1086, review the evidence and affirm the judgment on one of several grounds. Rather, the decision in this case was based upon a limited finding that the defendant broke out of the tavern, and consequently our review is limited to that determination.

The defendant contends in this court that a conviction of storehouse breaking cannot be grounded upon breaking out of a building. Instead, he claims, the breaking must be to effectuate an entry. We disagree. In our view, a breaking out of the building satisfies the “breaking” requirement of Art. 27, § 32.

There has long been a controversy as to whether breaking to effectuate an entry must be established with regard to common law burglary and statutes codifying common law burglary. In England, prior to 1713, there were differing views with regard to whether entering a house without a breaking and subsequently breaking the close of the house in order to escape constituted a burglary. In 1713, the statute of 12 Anne 1, c. 7, § 8, settled the controversy by expressly providing that one who enters without breaking is nevertheless guilty of burglary if he broke out, provided all of the other elements of common law burglary were present. R. M. Perkins, Criminal Law, Ch. 3, § 1, p. 197 (2d ed. 1969); Clark & Marshal, Law of Crimes, § 13.03, pp. 998-999 (7th ed. 1967).

The majority of American jurisdictions which have had an opportunity to decide the issue have determined that a breaking for purposes of escape without an initial breaking for entry was not a burglarious breaking. Other states, however, have held that a breaking out, as well as in, is sufficient for conviction of burglary. This issue, however, does not arise under our storehouse breaking statute.

Art. 27, § 32, although a derivative of common law burglary, is not intended to constitute the technical crime of burglary. Ball v. State, 7 Md. App. 219, 254 A. 2d 367 (1969). See Bowser v. State, 136 Md. 342, 344, 110 A. 854, 855 (1920); Leeds, Inc. v. Aetna Casualty & Surety Co., 40 F. Supp. 966, 970 (D. Md. 1941). Art. 27, § 32, provides in pertinent part:

“Every person, his aiders, abettors, and counsellors, who shall be convicted of the crime of breaking a storehouse . . . warehouse or other outhouse ... in the day or night with an inter ■ ; commit murder or felony therein, or with the imc-A to steal, take or carry away the personal goods of another of the value of one hundred dollars ($100.00) or more therefrom, shall be guilty of a felony, and upon conviction sentenced to the penitentiary for not more than ten years.”

The two essential elements of the offense are breaking and the requisite intent. Unlike common law burglary, the statute does not require proof of entry. In Ball v. State, supra, 7 Md. App. at 225, this court specifically rejected the argument that entry was an implicit element of storehouse breaking, finding it “abundantly clear that § 82 literally contains no ‘entry’ requirement and that this omission was not an oversight on the part of the General Assembly but a studied and deliberate deletion.” In Jennings v. State, 8 Md. App. 312, 318, 259 A. 2d 543, 546 (1969), this court reiterated that the provisions of § 32 “require proof of breaking but do not require proof of an entry.”

Thus under § 32, as indicated by the use of the term “breaking” rather than “break and enter” or “break into,” proof of a breaking only is required, and a breaking out, as well as in, is sufficient to constitute this element of the offense. See Clark & Marshall, A Treatise on the Law of Crimes, § 13.03, p. 999 (7th ed. 1967). In construing a statute similar to Art. 27, § 32, the Court of Appeals of Kentucky in Lawson v. Commonwealth, 160 Ky. 180, 183, 169 S. W. 587, 589 (1914), expressed the same view, stating:

. . Proof of breaking of some sort is essential. . . . whether that breaking occurs before or after the theft does not alter or lessen the degree of the offense. . . .
“Entry by breaking is not a requisite by our statute.”

We conclude, therefore, that the trial judge, having found that the defendant broke out of the tavern, was correct in his holding that the element of breaking as used in the statute could be satisfied by a breaking out.

(2)

The defendant next argues that there was a failure to prove that he intended to steal goods valued at one hundred dollars or more as required by Code, Art. 27, § 32. The defendant contends that, in this instance, the actual value of the goods taken, approximately $5.00, precludes a finding that he had the requisite intent.

It is well settled that under our storehouse breaking statute, “the actual intention at the time of the breaking is controlling.” Ridley v. State, 228 Md. 281, 282, 179 A. 2d 710 (1962). To the same effect, see Pearre v. State, 237 Md. 622, 624, 206 A. 2d 249 (1965); Johnson v. State, 5 Md. App. 540, 545, 248 A. 2d 663 (1968); Robinson v. State, 4 Md. App. 515, 530, 243 A. 2d 879 (1968); Sparkman v. State, 3 Md. App. 527, 532, 240 A. 2d 328 (1968); O’Brien v. State, 1 Md. App. 94, 97, 227 A. 2d 362 (1967). See also People v. Hill, 67 Cal. 2d 105, 60 Cal. Rptr. 234, 429 P. 2d 586, 596 (1967); People v. Flores, 86 Cal. App. 235, 260 P. 822 (1927); Commonwealth v. Schultz 168 Pa. Super. 435, 79 A. 2d 109, 111-112 (1951); Cohron v. State, 400 S.W.2d 338, 339 (Tex.Crim.App. 1966).

Consequently, the value of the goods actually taken is not determinative of intent in the ordinary case where the breaking element of the statute is satisfied by a breaking in. The courts have consistently held in breaking in cases that, even though the defendant actually took less than one hundred dollars, an intention at the time of the breaking to take more than one hundred dollars may be established by reasonable inferences from the evidence. Howard v. State, 240 Md. 699, 213 A. 2d 288 (1965); Pearre v. State, supra, 237 Md. at 624; Ridley v. State, supra, 228 Md. at 282, and cases cited therein; Hebb v. State, 10 Md. App. 145, 268 A. 2d 578 (1970); Johnson v. State, supra, 5 Md. App. at 545; Robinson v. State, supra, 4 Md. App. at 530; Moore v. State, 3 Md. App. 676, 240 A. 2d 617 (1968); Sparkman v. State, supra, 3 Md. App. at 532; O’Brien v. State, supra, 1 Md. App. at 97. If the trial judge had found that the defendant had broken into the tavern, we would have less difficulty concerning the element of intent. The evidence in this case may have been sufficient to support a finding that the defendant harbored the requisite intent at the time of entry. “[R]ansacking of the drawers [was] sufficient to support a logical inference that the appellant intended to steal everything of value that he could find and carry away,” Ridley v. State, supra, 228 Md. at 282. There does not have to be a showing that items of value were taken from the drawers, Pearre v. State, supra, 237 Md. at 624. Mr. Holtz, the manager of the tavern, testified that the estimated value of the liquor inventory was in excess of $500.00. Had the trial judge’s decision been based upon a breaking in, the testimony with respect to “the value of the contents of the building where the breaking occurred” may have established the requisite intent under § 32. Johnson v. State, supra, 5 Md. App. at 545. See also Howard v. State, supra, 240 Md. at 700; Hebb v. State, supra, 10 Md. App. at 149; Sparkman v. State, supra, 3 Md. App. at 533.

However, the trial judge in the instant case based his decision on a finding that the defendant broke out of the building, and we are forced, therefore, to focus upon his intention at that time as the controlling time under the statute. The circumstances indicate that the defendant was attempting to effectuate an escape at the time of his “breaking.” Therefore, in the absence of any other evidence of intent at the time of breaking, the actual value of the goods taken would appear to be determinative of intent. Upon being searched by the officer, the defendant was found to have taken approximately $5.00 in change from the cigarette machine. The fact that he took only $5.00 and not more establishes, absent any evidence to the contrary, that he did not intend at the time of the breaking out to “take or carry away the personal goods of another of the value of one hundred ($100.00) or more.” And, as pointed out above, it is the intent at the time of the breaking which is controlling, Ridley v. State, supra, 228 Md. at 282.

We conclude that, under the circumstances of this case, and in light of the trial court’s basing its decision upon a breaking out, there was a failure to show that the defendant intended to steal $100.00 or more at the time of the breaking. Absent this essential element of the crime, the conviction must be reversed.

(3)

Because the judgment in this case must be reversed, it is not necessary to reach the defendant’s final contention concerning the trial court’s imposing sentence without first obtaining a pre-sentence report. Nevertheless, because there will have to be a new trial in the case whfbh may result in another conviction, we will address the question. The defendant argues that the trial judge’s refusal to order a pre-sentence investigation at defense counsel’s request was a denial of due process of law. The argument is without merit. Whether or not a court orders a pre-sentence investigation in a particular case is within the discretion of the court. Callahan v. State, 30 Md. App. 628, 636, 354 A. 2d 191 (1976); Church v. State, 5 Md. App. 642, 646, 248 A. 2d 907 (1969); Turner v. State, 5 Md. App. 584, 593, 248 A. 2d 801 (1968); Maryland Rule 761 c. There was no abuse of that discretion in this case.

Judgment reversed.

Case remanded for a new trial. Costs to be paid by Baltimore City.

      . The elements necessary to constitute the crime of common law burglary include a breaking, and an entry, in the nighttime, in a dwelling house of another, with intent to commit a felony therein. State v. Wiley, 173 Md. 119, 121, 194 A. 629, 630 (1937); Hannah v. State, 3 Md. App. 325, 239 A. 2d 124 (1968); Mason v. State, 2 Md. App. 768, 238 A. 2d 138 (1968); Hall v. State, 1 Md. App. 392, 230 A. 2d 473 (1967).

      . State v. Ewing, 298 S.W.2d 439 (Mo. 1957); Casa v. State, 125 Tex.Crim.App. 186, 67 S.W.2d 288 (1934); Brown v. State, 55 Ala. 123, 28 Am. Rep. 693 (1876); Rolland v. Comm., 82 Pa. 306, 22 Am. Rep. 758 (1876); Adkinson v. State, 5 Baxt (Tenn.) 569, 30 Am. Rep. 69 (1875); White v. State, 51 Ga. 285 (1974); Wine v. State, 25 Ohio St. 69 (1874). The Brown, Rolland and White cases held that the statute of 12 Anne was not in force in their respective states. The other cases made no reference to the English statute.

      . State v. Bee, 29 S. C. 81, 6 S. E. 911 (1888); State v. Ward, 43 Conn. 489, 21 Am. Rep. 665 (1876) (statute of 12 Anne was declaratory of common law and incorporated in state law by adoption); State v. McPherson, 70 N. C. 239, 16 Am. Rep. 769 (1874). See also People v. Toland, 217 N. Y. 187, 111 N. E. 760 (1916) (statutory provisions expressly making breaking out a burglary in the 3rd degree).

      . Although Kilty’s Report of the British Statutes, p. 186 (1811) expresses the view that the statute of 12 Anne 1, c. 7, § 3 (1713), “appears from some of the cases in the provincial court, to have extended to the province,” Kilty nevertheless takes the position that it is not proper to be incorporated in the Maryland law. As we are not presented with the issue, we decline to decide the applicability of the statute to common law burglary or other statutory offenses requiring both a breaking and entry.

      . Vol. II, J. Bishop, Criminal Law § 99, p. 76 (9th ed. 1923), indicates that the question of whether or not a “breaking out” will be sufficient to constitute the element of breaking as required under various state laws “is settled by the express or implied terms of the statutes . . . .”


text:
    CHARLES EDWARD SMITH v. STATE OF MARYLAND
    [No. 1337,
    September Term, 1975.]

      Decided November 3, 1976.

    The cause was argued before Irving A. Levine and John C. Eldrddge, Associate Judges of the Court of Appeals, and Ralph W. Powers, Chief Judge of the Seventh Judicial Circuit, all specially assigned.

      Charles A. Haase, Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and
      Donaldson C. Cole, Jr., State’s Attorney for Cecil County, on the brief, for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

We are presented with the question of whether the trial court erred in denying the defendant’s motion to suppress evidence and admitting into evidence at the defendant’s trial on charges of storehouse breaking and larceny a power saw seized by the police during a search of the defendant’s residence. The saw was not described in the warrant authorizing the search.

A motorcycle shop located in Chester County, Pennsylvania, was broken into sometime during the evening of July 3, 1974, or the early morning of July 4, 1974. Three pairs of motorcycle boots were stolen. Based in part upon information received from an unnamed neighbor of the shop, the Pennsylvania police obtained a warrant to search the residence of the defendant Charles Edward Smith in Oxford, Pennsylvania, and to seize the three pairs of motorcycle boots and a pair of bolt cutters allegedly used to gain entry into the store.

The warrant was executed on July 5, 1974. None of the items described in the warrant was recovered, but several construction tools not described in the warrant were seized. Among these tools was a Black and Decker ,circular saw with the name “Kirk” written on it. This saw wakjater identified as belonging to Acme Supermarkets, Inc., and it was stolen from a supermarket under construction in North East, Maryland, sometime between June 14 and June 17,1974. The identification of the saw was not made, however, until March 19,1975, by Kirk William Nels'on, an employee in the maintenance department of Acme Majrkets, at the Avondale, Pennsylvania, Police Station. I

Subsequently, on August 7, 1975,'Smith was indicted in Cecil County, Maryland, on charges prising from the theft at the Acme store in North East. On October 3,1975, a hearing on a motion to suppress evidence seized in the search of July 5, 1974, was held. The motion was denied. The power saw, but no other items seized at defendant’s residence, was introduced into evidence at his trial. Smith was convicted by a jury of larceny under $100.00 and storehouse breaking under $100.00. From these convictions, Smith appeals.

Smith raises three issues. First, he argues that the search warrant was invalid because it was based on information supplied by an informant without a sufficient showing of the underlying circumstances from which the credibility of the informant or the reliability of the information provided could be determined. Second, he contends that even if the warrant were valid, the seizure of the power saw was beyond the scope of the warrant and was not within any recognized exception to the warrant requirement of the Fourth Amendment to the Constitution of the United States. And finally, he argues that the evidence presented at trial was insufficient to support the convictions.

For the purpose of this appeal, we shall assume arguendo that the search warrant was issued upon probable cause and that therefore the resulting search of Smith’s residence was valid. However, the warrant cannot justify the seizure of the power saw and other construction tools. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis supplied.) This provision of the Fourth Amendment was applied in Marron v. United States, 275 U. S. 192, 196, 48 S. Ct. 74, 76, 72 L. Ed. 231 (1927), to prohibit the seizure under a warrant of items not specifically described in the warrant:

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”

See also Berger v. New York, 388 U. S. 41, 58, 87 S. Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967); Stanford v. Texas, 879 U. S. 476, 485, 85 S. Ct. 506, 512, 13 L.Ed.2d 431 (1965); Brooks v. State, 235 Md. 23, 29, 200 A. 2d 177 (1964); Anglin v. State, 1 Md. App. 85, 88-90, 227 A. 2d 364 (1967). The power saw and other construction tools seized, not being particularly described in the warrant, could not be seized under the authority of that warrant. Hence the seizure must be treated as a warrantless one.

The State, however, relies on the “plain view” doctrine set forth in Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971), to justify the warrantless seizure of the power saw and other construction tools. Under the plain view doctrine, a warrantless seizure of incriminating evidence may be permitted when the police are lawfully searching a specified area. For the warrantless seizure to be constitutionally valid under the plain view doctrine, however, it must be established that the police had prior justification for an intrusion into the area searched, that the police inadvertently came across the item seized, and that it was “immediately apparent” to the police that the item seized was evidence. This exception to the warrant requirement was explained in Coolidge as follows (403 U. S. at 466, 91 S. Ct. at 2038):

“What the ‘plain view' cases have in common is that the police officer in each of .them had a prior justification for an intrusion in tíie course of which he came inadvertently across k piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object/ hot pursuit, search incident to lawful arrest, or sbme other legitimate reason for being present unconnected with a search directed against the accused !— and permits the warrantless seizure. Of course; the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” (Emphasis supplied.)

See also Stanley v. Georgia, 394 U. S. 557, 569-572, 89 S. Ct. 1243, 1250-1252, 22 L.Ed.2d 542 (1969) (Stewart, J., concurring); Brown v. State, 15 Md. App. 584, 292 A. 2d 762 (1972).

Because we are assuming arguendo that the search warrant in this case was issued upon probable cause, the intrusion into Smith’s residence was justified. Nor do we question the fact that the police came across the power saw inadvertently. The problem in this case is that there has been no showing by the State that the police had any reason to believe that the power saw and other construction tools were stolen at the time they were seized.

Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to certain exceptions such as the plain view doctrine. The burden is on the State to establish that the warrantless search and seizure is within one of these exceptions. Coolidge v. New Hampshire, supra, 403 U. S. at 454-455, 91 S. Ct. at 2032; Vale v. Louisiana, 399 U. S. 30, 34, 90 S. Ct. 1969, 1972, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U. S. 752, 762, 89 S. Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); United States v. Jeffers, 342 U. S. 48, 51, 72 S. Ct. 93, 95, 96 L. Ed. 59 (1951); see Bouldin v. State, 276 Md. 511, 519, 350 A. 2d 130 (1976); Howell v. State, 271 Md. 378, 385-386, 318 A. 2d 189 (1974). The State presented no evidence at the hearing on the motion to suppress that the police had any knowledge that the power saw and other construction tools constituted criminal evidence, or even that the police were aware of the theft at the North East supermarket. The only explanation offered at the hearing on the motion to suppress Í for the seizure of the power saw, and two other construction tools which were the subject of that hearing, was a bare assertion by the State’s Attorney that the police had believed that these tools were involved in an unrelated Pennsylvania burglary. However, none of the officers participating in the search of Smith’s residence testified at the hearing, and no other evidence was presented. Nor can it be said that the quantity of construction tools found at Smith’s residence provided probable cause to believe the tools were stolen, in light of the fact that Smith himself was in the home repair business and owned many tools. Compare Brooks v. State, supra; Anglin v. State, supra.

We believe that the State failed to meet its burden of justifying the warrantless seizure in this case. As the Court of Appeals said in Bouldin v. State, supra, 276 Md. at 519, quoting from Howell v. State, supra, 271 Md. at 386:

“... the court cannot fill gaps in the record with conjecture, nor substitute surmise for positive proof, and ... ‘care should be taken by the State in presenting its case to insure that there will be sufficient evidence; if any exists, placed in the record to justify the execution of a warrantless ... [seizure].’ ”

Because the record in this case fails to disclose any evidence justifying the warrantless seizure of the construction tools at Smith’s residence, we hold that the court erred in denying the motion to suppress the power saw and other construction tools seized on July 5, 1974, and in permitting the power saw to be admitted into evidence at Smith’s trial.

In view of this holding, we need not consider Smith’s contention regarding the sufficiency of the evidence.

Judgments reversed.

Case remanded to the Circuit Court for Cecil County for a new trial.

Costs to be paid by Cecil County.


author: Liss, J.,

text:
    JOSEPHINE VACCARO et al. v. LEXLY W. CAPLE
    [No. 13,
    September Term, 1976.]

      Decided November 3, 1976.

    The cause was argued before Davidson, Melvin and Liss, JJ.

      Bayard Z. Hochberg, with whom were Philip S. Maraño and Michael J. Doxzen on the brief, for appellants.

      Robert H. Bouse, Jr., with whom were Frederick G. Savage and Anderson, Coe & King on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This case might well be called the “Case of the Resurrected Jurors.” The appellant Josephine Vaccaro, infant, was a passenger in an automobile which was involved in a collision with a vehicle operated by Lexly W. Caple, appellee. Suit was filed by appellant and her parents, a jury trial was held in the Circuit Court for Carroll County (Weant, J., presiding), and at the conclusion of all the evidence, verdicts were returned in favor of the appellants. Considering the awards to be grossly inadequate, appellants filed within the time allowed a motion for a new trial, alleging that their right to challenge peremptorily prospective jurors had been impaired. The court after a hearing denied the motion, and it is from the refusal of the court to grant a new trial that this appeal was taken.

It is not necessary for us to give a detailed recitation of the facts of the accident or damages sustained, as this appeal raises only a legal issue — whether the trial court erred by denying appellants’ motion for a new trial.

The record discloses that when the case was called for trial, counsel for the parties were each provided with a jury list containing thirty names, and that after voir dire; the clerk of court struck a number of the names by lot. In each instance, lines were clearly marked through the names and addresses of those jurors struck by the clerk. Counsel for the defense also drew a line through the names and addresses of those jurors he wanted to strike peremptorily. Appellants’ counsel placed a check mark opposite the names of his peremptory challenges but did not mark through their names and addresses — with the exception of one juror whose name he did mark through and who was actually stricken from the panel. It being the practice in the Carroll County Circuit Court to effectuate peremptory challenges by crossing out the names and addresses of those jurors to be excluded, the court inadvertently did not strike from the panel three of the jurors counsel for appellants had intended to be challenged. The jury was then called by name and seated in the presence of counsel. They were again called by name in the presence of counsel when the clerk took count of the jury. The jurors, including the three intended to be stricken by appellants, were then sworn, and the trial proceeded to conclusion. Counsel for appellants contends that he did not discover the error until the day after the verdict was rendered; and it is conceded that neither the court, the clerk, nor opposing counsel had knowledge of the apparent mistake.

The sole issue raised by this appeal — whether the trial court erred by denying appellants’ motion for a new trial — has two facets: First, were the appellants deprived of the right to peremptory challenges allowed them by statute and rule of court; and secondly, did the appellants waive their right to the peremptories by failing to object to the composition of the jury until after a verdict was rendered?

There is no disagreement as to the Maryland law governing peremptory challenges. Maryland Code (1974), Courts and Judicial Proceedings Art., § 8-301, provides:

“§ 8-301. Peremptory challenges.
(a) Cases involving death, life imprisonment, or 20 years or more. — * * *
(b) Other cases. — In all other cases, each party is permitted four peremptory challenges; all defendants are considered a single party for this purpose.”

Maryland Rule 543 (1971 Repl. Vol.) provides:

“Rule 543. Jury Selection, Strikes, Challenges, etc.... Law a. Petit Jury.
3. [Peremptory Strikes — Number] Each party may peremptorily strike, without cause, four persons from the lists of twenty provided for in paragraph 1 of section a. of this Rule, and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in the action.

The right to challenge prospective jurors peremptorily has developed through the common law, case law, statute, and rule of court. The historical background of that right was discussed in depth by Judge Moylan of this Court in Spencer v. State, 20 Md. App. 201, 314 A. 2d 727 (1974). In the earlier case of Pearson v. State, 15 Md. App. 462, 291 A. 2d 167 (1972), Judge Gilbert, now Chief Judge of this Court, explicated the importance of the peremptory challenge as a means of guaranteeing a fair and impartial jury. While most of the cases cited in these opinions refer to criminal matters, there is no difference in the purpose and effect of the peremptory in a civil or a criminal case.

The function of the peremptory challenge is to eliminate extremes of partiality and to assure the parties that the case is decided solely on the basis of the evidence. The Supreme Court in Swain v. Alabama, 380 U. S. 202, 218, 85 S. Ct. 824, 835, 13 L.Ed.2d 759, 771 (1965), discussed its “raison d’etre”:

“ . . . peremptories were and are freely used and relied upon in this country, perhaps because juries are drawn from a greater cross-section of a heterogenous society. The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by a jury. See Lewis v. U.S., 146 U.S. 370, 376. .. . The denial or impairment of the right is reversible error without a showing of prejudice.... [citations omitted] ... ‘For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.’ Lewis v. U.S., supra, at 378 [36 L. Ed. 1011, 1014, 13 S. Ct. 136].”

However, freedom to exercise the right of peremptory challenge is not absolute; and where, as here, the appellants have failed to use due diligence, they will be held to have waived the right. We shall affirm.

The rule is, we are convinced, that when a juror who might otherwise be disqualified for cause is permitted to serve on a jury because of the failure of the aggrieved party to use due diligence in discovering the irregularity, a judgment of that jury will not be disturbed. It seems to us even less justifiable — in such an instance — where the challenge is a peremptory one, which could have been exercised for any arbitrary reason or for no reason at all. As stated in Brice v. State, 264 Md. 352, 366, 286 A. 2d 132, 139 (1972):

“Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.”

Under these circumstances, i.e., with the reason, the motive — the “why” behind the particular peremptory being known only to the party who exercised the right — and the factor of association being present only to him, it should be clear why the rule requiring due diligence by that party is at least as, if not more, justifiable in the peremptory challenge as it is in the challenge for cause.

Appellants point out that waiver is the voluntary surrender of a right requiring both knowledge and intention and that they had neither knowledge nor intention to waive in this case. But a waiver may occur because a party is estopped by his own conduct; i.e., by a failure to exercise due diligence. Our Court of Appeals in Benson v. Borden, 174 Md. 202, 198 A. 419, 427 (1938), said, at 219:

“In this country ‘waiver’ and ‘estoppel’ are often used synonymously by courts and text writers .... [T]he demarcation between ‘waiver’ and ‘estoppel’ is lucidly delineated in 40 Cyc. 255, as follows: ‘While waiver belongs to the family of estoppel, and the doctrine of estoppel lies at the foundation of the law of waiver, they are nevertheless distinguishable terms. * * * Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; estoppel may arise where there is no intent to mislead. Waiver depends upon what one himself intends to do; estoppel depends rather upon what he causes his adversary to do. Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice or into an altered position; an estoppel always involves this element. * * * A waiver may be created by acts, conduct or declarations insufficient to create a technical estoppel.’ ” (emphasis added).

In this case, the failure of appellants to exercise due diligence prevented the court from correcting the error which occurred. If the motion for new trial requested by appellants were granted, it would have required the defense to re-try a case already completed.

The Court of Appeals had before it the same issue in Lee v. Colson, 277 Md. 599, 356 A. 2d 558 (1976): A juror whom counsel claimed had been stricken peremptorily was sworn inadvertently on the jury which was empaneled, served during the taking of testimony, and retired for deliberation as to verdict. While the jury was out, counsel for appellant discovered the error but failed to call it to the court’s attention. Some two hours later, the jury returned a verdict unfavorable to the appellant. A motion for a new trial was filed wherein for the first time appellant disclosed to the court the inadvertent seating of the peremptorily challenged juror. The motion was denied, and the Court in affirming said:

“[I]t appears to be an accepted proposition that a waiver results from failure to object to an irregularity in the selection of a petit jury prior to the return of an unfavorable verdict.”

The Court of Appeals has had similar issues before it on numerous occasions: In the early case of Johns v. Hodges, 60 Md. 215 (1883), a defendant in a contested will case discovered, after adverse verdict, that two of the jurors who sat in the case were under the required age. In affirming, the Court at 220, 222 said:

“It was competent for the defendant to have made the proper inquiries, and after having satisfied himself on the subject, to have made the objection before the juror was sworn, but this he neglected to do. He waited until he had lost his case. If a party to a suit may omit to make such inquiries until after a verdict has been rendered against him, and may then set it aside on discovery and proof of the existence of a good cause of challenge against any one of the jury, it would introduce an additional element of uncertainty in the administration of justice, and lead in many cases to great and unnecessary delay and expense.
The fact that the party was not aware of the disqualification when the jury was empanelled is not material; because he might have known it.” (emphasis in original)

Hansel v. Collins, 180 Md. 100, 23 A. 2d 1 (1941), held that a judgment would not be set aside on the ground that one of the jurors was disqualified because of non-residence even where the complaining party was unaware of the disqualification, if he might have known of it.

In Young v. Lynch, 194 Md. 68, 69 A. 2d 787 (1949), a deputy sheriff mistakenly served a summons for jury duty on the brother of a prospective juror. The improperly summonsed juror participated in the trial and with the other jurors returned a verdict, the mistake being discovered some time later. The Court in affirming said, at 72:

“If the fact had been of any consequence to defendant, it could have been learned by looking at the jury before they were sworn. The evidence shows that the mistakes occurred without fraud or dishonesty on the part of the juror or any one else, without injury to defendant, and without effort on defendant’s part to prevent or correct them.”

In Alexander v. R.D. Grier & Sons Co., 181 Md. 415, 421, 30 A. 2d 757, 760 (1943), the trial court was reversed because of its refusal to ask certain questions on voir dire. The Court, however, distinguished the case:

“This case is to be distinguished from those cases in which the alleged disqualification of a juror was raised for the first time after verdict found. In such cases it is required that the party, seeking to set aside the verdict, satisfactorily establish that he did not know, and in the exercise of reasonable diligence could not have known of the disqualification.”

Decisions in other jurisdictions support the view that a party may waive a right to peremptory challenges by failing to use due diligence. In Acosta v. Texas, 522 S.W.2d 528 (1975), while polling the jury following a murder conviction, it was discovered that one of the peremptorily struck jurors had inadvertently served on the jury. The Court citing an earlier Texas case said at 529:

“. . . [I]t is the duty of the parties to see that, as impaneled, the jury box does not contain a juror who has been challenged by striking. It is undisputed that Mrs. Byrd’s name was called and she was seated in the jury box, and the court inquired if there were any objections to the panel as selected, to which appellant answered, ‘no objection, your honor.’ ”

In a Kentucky case, a statute required a jury panel of not less than 24 nor more than 30 jurors from which a venire of 18 names was to be drawn — from which the trial jury was to be selected. Counsel filed an affidavit contending that he had discovered the day after the trial that only 21 jurors were listed, and therefore a full statutory panel had not been used. The Court in discussing the effect of the error said:

“Appellant’s counsel took for granted there was a full panel instead of making inquiry of the court at the time the case was called to trial. At that time had he moved for a statutory panel there can be but little doubt he would have obtained it. By waiting until after the trial to bring the matter to the court’s attention, he waived it. Although he did not discover this error until after the trial, reasonable diligence upon his part would have revealed it at the time the jury was empaneled.”

In an Indiana case, appellant contended on appeal that jurors who served on his case had not been selected in the manner prescribed by statute and that he did not discover this irregularity until the date of filing his motion for a new trial. In affirming the judgment below, the Court said:

“However, it is well settled that a party may waive the provisions of these statutes. . . . Parties who demand the right to have the provisions of these statutes complied with have a duty to use diligence in ascertaining whether they have been followed. In the event there has been an irregularity they must make timely objection to the trial court. It is too late to raise the objection made here after an adverse verdict has been returned.”

In a later Indiana case, Sturrock v. State, 96 N.E.2d 226, 227 (1951), the state Supreme Court refused to reverse a murder conviction on the ground that an ineligible, non-resident juror had served on the panel. The Court held:

“The juror’s non-residence was unquestionably a ground for challenge. But the fact of his non-residence was known to appellant and her. attorneys or was discoverable by the exercise of reasonable diligence before the verdict. Under such circumstances the objection was waived by the appellant’s failure to make it before an unfavorable verdict had been returned.” (citations omitted, emphasis added).

Our review of this record convinces us that the appellants did not exercise due diligence in the implementation of their right to peremptory challenges. Counsel was unfamiliar with the practice in the Carroll County Circuit Court which by custom required attorneys to indicate their peremptory strikes by marking lines through the names and addresses of those persons whom they wished to exclude; counsel instead placed a check mark opposite their names. Members of the jury were called by name and seated in the presence of counsel twice: when they were first seated in the jury box and when the clerk took count of the jury. Trial continued over a period of a day and a half. Even a cursory examination of the jury list would have disclosed the error, and that information would have permitted the trial court to take appropriate measures to correct it. It was not until after the verdict had been rendered that appellants checked the jury list. The information they then discovered was available to them before the trial began. To permit the trial to be aborted and require the case to be re-tried would result in unncessary delay and expense.

In this bicentennial year, it is not, we believe, inappropriate to call attention to Thomas Jefferson’s caution that “eternal vigilance is the price of liberty.” No less a price is required of a litigant who seeks to avail himself of the procedural or substantive rights to which he is entitled.

Judgments affirmed.

Costs to be paid by appellants.

      . At the motion for new trial, in discussing the error of seating a juror intended to be stricken, the trial judge stated that the situation “happened one other time in this court and that was quite a few years ago and the point was brought to the court’s attention before we started the trial and we took an entirely new panel and started over again.”

      . See, Suchan v. Henry’s Farm Sales, Inc., 97 Ida. 78, 540 P. 2d 263 (1975); Finck v. Hoskins, 94 Ida. 524, 492 P. 2d 936 (1972); Brown v. Marker, 410 P. 2d 61 (Okla. 1965).

      . Louisville Baseball Club v. Hill, 291 Ky. 333, 164 S.W.2d 398, 401 (1942).

      . Kark v. Central Greyhound Lines, 85 N.E.2d 277, 279 (1949).

      . We are advised that this practice differs in various jurisdictions in the State. We call this to the attention of the Rules Committee of the Court of Appeals. A uniform rule might well protect the unwary.