DocketNumber: No. 3904
Citation Numbers: 194 F. Supp. 615
Judges: Wright
Filed Date: 5/25/1961
Status: Precedential
Modified Date: 11/26/2022
This action was instituted by Uddo & Taormina Company
On April 19, 1958, when the cargo was delivered aboard, the carrier issued its clean, on board, bill of lading bearing the notation “Steamer not responsible for breakage or leakage of barrels.” Under the terms of the bill, the carrier agreed to deliver the described cargo to New Orleans, Louisiana, pursuant to the provisions of the United States Carriage of Goods by Sea Act of 1936, 46 U.S.C.A. §§ 1300-1315, in the same good order and condition as when received, in consideration of certain freight charges agreed to be paid.
The wooden barrels of this consignment were of the usual construction for this type of container and were made of oak staves. Each barrel was three feet in height and contained 100 pounds of black olives in brine. The barrels were not leaking when loaded aboard the vessel but, as might be expected of wet cargo of this kind, leakage was noted by the chief mate some two days after the voyage began.
Although the No. 1 and No. 2 ’tween decks of the Oberlin Victory were available for stowage, the chief mate chose to stow the entire 105 barrels of olives in a center forward compartment of No. 4 ’tween deck directly aft of the engine room. The barrels actually extended to within two feet of the uninsulated engine room bulkhead.
On leaving Piraeus, the vessel proceeded to Rejeka, Yugoslavia, then Naples, Leghorn and Genoa, Italy. In discharging the cargo in suit at New Orleans on May 24, 1958, the staves of eleven barrels and the head of one barrel were cracked. Appropriate notation of this damage was made on the dray receipt issued by carrier’s agent when the cargo was picked up by libelant’s trucks on May 28 and 29, 1958.
On inspection at libelant’s warehouse in New Orleans on May 28 and 29, 1958, it was discovered that 40 of the barrels were completely dry of brine and that the olives in all of the barrels had been damaged by reason of the loss of brine. The surveyor for cargo underwriters took adequate steps to mitigate the damage by accepting libelant’s salvage bid of $960,
Proctors have spent most of their time arguing about burden of proof. Libelant maintains that receipt of the cargo by the carrier in apparent good order and condition and delivery at destination in bad condition places the burden of proof on respondents affirmatively to show that the damage was occasioned by a cause for which it has no responsibility under the Carriage of Goods by Sea Act, and that negligence did not contribute thereto.
It is not necessary to follow these arguments as to burden of proof or to determine whether that burden relates merely to going forward with the evidence, as distinguished from the burden of persuasion.
Section 3(2)
It may well be, of course, as the carrier suggests, that the barrels were new and consequently more likely to leak than seasoned barrels. However that may be, unquestionably the improper stowage contributed to the damage, and the carrier has made no effort to face up to the almost impossible task of apportioning that damage.
Decree for libelant.
. Cargo underwriters have paid the loss and are suing under a loan receipt.
. The shipment was insured for $3,077.42.
. Citing 46 U.S.C.A. §§ 1303(2), 1304(2)(q); Orient Ins. Co. v. Flota Mercante del Estado, D.C.E.D.La., 102 F.Supp. 729, 1951 A.M.C. 1982, affirmed 5 Cir., 198 F.2d 740, 1952 A.M.C. 1836; Schroeder Bros., Inc. v. The Saturnia, 2 Cir., 226 F.2d 147, 1955 A.M.C. 1935; American Tobacco Co. v. The Katingo Hadjipatera, 2 Cir., 194 F.2d 449, 1951 A.M.C. 1933; Robinson, Ltd. v. S.S. Stromboli, Can.Exch., 1951 A.M.C. 424. See also, The Matilde Peirce, 2 Cir., 32 F.2d 688, 1929 A.M.C. 779.
. Citing The Niel Maersk, 2 Cir., 91 F.2d 932, 1937 A.M.C. 975; American Tobacco Co. v. The Katingo Hadjipatera, D.C.S.D.N.Y., 81 F.Supp. 438, 1949 A.M.C. 49, modified on other grounds 2 Cir., 194 F.2d 449, 1951 A.M.C. 1933; F. Badrena E. Hijo, Inc. v. The Rio Iguazu, D.C.E.D.La., 182 F.Supp. 885; The Chester Valley, D.C.E.D.La., 28 F.Supp. 290, affirmed 5 Cir., 110 F.2d 592.
. Respondent concedes, of course, that this stipulation does not protect it against its own negligence. See Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373.
. See Gilmore and Black, The Law of Admiralty (1957), pp. 146-147. See also, Comment, 27 Texas L.Rev. 525 (1949).
. 46 U.S.C.A. § 1303(2).
. Schnell v. The Vallescura, supra. See also, Gilmore and Black, The Law of Admiralty (1957), p. 149.