Hale Container Line, Inc. v. Houston Sea Packing Co., Inc.
| Decision Date | 03 April 1998 |
| Docket Number | 95-3296,Nos. 95-3201,s. 95-3201 |
| Citation | 137 F.3d 1455 |
| Parties | 23 Fla. L. Weekly Fed. C 1219 HALE CONTAINER LINE, INC., Plaintiff-Counter-Defendant-Cross-Claimant-Appellee, Societe Guyanaise De Conseils Immobilers (SOGUCI), Plaintiff-Appellant, v. HOUSTON SEA PACKING CO., INC., Defendant-Cross-Defendant-Counterclaimant-Appellant, Meridian Ship Incorporated, Defendant-Cross-Defendant, Fabricated Products of Tampa, Inc., Defendant-Cross-Defendant-Cross Claimant, D&D Welding Fabrication, Defendant-Cross-Defendant-Cross Claimant, Project Logistics and Transportation, Inc., Tug "ALEXANDRA HALE" in rem, Barge "LIBERTY TRADER" in rem, Defendants-Appellees, National Cargo Bureau, Defendant-Cross-Claimant-Cross-Defendant, London Offshore Consultants, Inc., Defendant-Cross-Defendant. Hale Container Line, Inc., Plaintiff-Counterdefendant-Cross-Claimant, Societe Guyanaise De Conseils Immobilers (SOGUCI), Plaintiff-Appellee, v. Houston Sea Packing Co., Inc., Defendant-Cross-Defendant-Counterclaimant-Appellant, Meridian Ship Incorporated, Defendant-Cross-Defendant, Fabricated Products of Tampa, Inc., Defendant-Cross-Defendant-Cross-Claimant, D&D Welding Fabrication, Defendant-Cross-Defendant-Cross Claimant, Project Logistics and Transportation, Inc., Tug "ALEXANDRA HALE" in rem, Barge "LIBERTY TRADER" in rem, Defendants, National Cargo Bureau, Defendant-Cross-Claimant-Cross-Defendant, London Offshore Consultants, Inc., Defendant-Cross-Defendant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Richard Randall McCormack, McCormack, Siboni & Knoblock, P.A., Miami, FL, for Houston.
David F. Pope, Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, FL, C. Gordan Starling, Jr., New Orleans, LA, for SOGUCI.
Robert E. Warren, Eugene O'Connor, Taylor, Moseley & Joyner, Jacksonville, FL, Charles S. Cumming, National Cargo Bureau, Inc., New York City, Frank A. Atcheson, New York City, Walter C. Hartridge, Savannah, GA, for Hale Container, Tug "ALEXANDRA HALE" and Barge "LIBERTY TRADER".
Appeals from the United States District Court for the Middle District of Florida.
Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and CLARK, Senior Circuit Judge.
Defendant Houston Sea Packing Co., Inc. ("Houston") appeals the district court's judgments against it in favor of plaintiffs Hale Container Line, Inc. ("Hale") and Societe Guayanaise De Conseils Immobiliers ("SOGUCI"). SOGUCI cross-appeals from the judgment against it in favor of Hale, the National Cargo Bureau ("NCB"), and the Alexander Hale and Liberty Trader in rem, and the amount of damages it was awarded against Hale.
In July 1989, Jean Pierre Porry, a representative of SOGUCI, contracted with Project Logistics and Transportation, Inc. ("Project Logistics") to arrange for the transport of 210 mobile homes from Tampa, Florida, to French Guyana. 1 A Project Logistics representative contacted Craig Firing of Meridian Shipping Inc. ("Meridian"), a shipping agency. Firing contacted Don Jones, the owner of Houston concerning the transportation of the mobile homes and the construction of a stanchion assembly to hold the homes during shipment. 2 Jones gathered information to determine the method and costs of transporting the homes, and contacted London Offshore, a marine surveying company that approved vessels for hauling cargo, to assist him. On July 31, 1989, Meridian and Houston entered into a "Conlinebooking" Liner Booking Note 3 with Project Logistics for the shipment of 210 mobile homes on two voyages. The Booking Note named the "carrier" as "Meridian Ship/Houston Sea-Pack," the "merchant" or "shipper" as "Project Logistics and Transportation Inc.," and the "vessel" as "Tug Barge(s) TBN." On August 4, 1989, Project Logistics and Florida Mercury Export, Inc., 4 as SOGUCI's representative, executed a Booking Note which named the "carrier" as "Project Logistics," the "merchant" or "shipper" as "Florida Mercury," and the "vessels" as "Tug: 'Carol Hale' Barge: 'Liberty Trader.' " Both booking notes gave the time for shipment as "September 1989."
Houston contacted design engineer Arthur Tertyshny of Design Research for stress analysis of the stanchion system. Tertyshny provided drawings and calculations pertaining to a system containing three tiers of mobile homes.
On August 28, 1989, Hale, as "Owner," and Houston, as "Charterer," executed a Time Charter 5 in which Hale chartered the tug "Alexandra Hale" and barge "Liberty Trader" to Houston. The Time Charter provided for payment as follows:
CHARTER HIRE PAYABLE: $100,000 wired to Owner's bank prior to departure from Baltimore. $150,000 wired to Owner's bank no later than 72 hours after departure from Tampa to South America on first and any successive trips, adjusted to projected charter hire to be earned. 6
The Time Charter provided:
* * * * * *
16. Owner and Charterer acknowledge that Charterer plans to add stanchions to the Liberty Trader. In consideration thereof, Charterer shall be fully responsible for, and fully indemnify Owner for, all claims, liability, costs, or expenses of any kinds, including attorney fees, arising in any way or degree from addition of stanchions by Charterer to the Liberty Trader.... 9
The Alexandra Hale and Liberty Trader arrived in Tampa, Florida on September 6, 1989. Pursuant to the Time Charter, Houston arranged for an inspection and survey of both vessels. Houston discovered that the Liberty Trader had a breakwater on the bow that would displace five mobile homes on the bottom bow tier. Houston then decided to construct a fourth tier at the aft end of the barge to accommodate the displaced mobile homes. 10
Pursuant to the Booking Note entered into between Houston and Project Logistics, Project Logistics was responsible for providing stevedoring services for the loading of the mobile homes onto the barge, securing and lashing the homes onto the stanchion system, and insuring that the nuts and bolts were securely fastened and tightened. 11
On September 18, 1989, James McElroy, Project Logistics representative, and Harry C. Anderson, Master of the M/V Alexandra Hale, executed a Liner Bill of Lading 12 in Tampa, Florida, and Meridian, as agent, executed a Liner Bill of Lading in Baltimore, Maryland, for the first shipment of the mobile homes. Each Bill of Lading contained a General Paramount Clause, providing that the Carriage of Goods by Sea Act applied, and included a list of terms and conditions, including:
5. The Scope of the Voyage.
As the vessel is engaged in liner service the intended voyage shall not be limited to the direct route but shall be deemed to include any proceeding or returning to or stopping or slowing down at or off any ports or places for any reasonable purpose connected with service including maintenance of vessel and crew.
* * * * * *
9. Live Animals and Deck Cargo shall be carried subject to the Hague Rules ... with the exception that notwithstanding anything contained in Clause 19 the Carrier shall not be liable for any loss or damage resulting from any act, neglect or default of his servants in the management of such animals and deck cargo.
* * * * * *
13. Delay.
The Carrier shall not be responsible for any loss sustained by the Merchant through delay of the goods unless caused by the Carrier's personal gross negligence.... 13
The first shipment of homes departed on board the barge from Tampa on September 23, 1989. However, after the vessels departed, the Tug began experiencing engine problems and had to return to Tampa for repairs. After the repairs were completed, the vessels again left Tampa. While en route to French Guyana, the Tug put into a port in Puerto Rico because one of its crew became ill, and later put into Martinique because of more engine problems. The Tug arrived in French Guyana on October 13, 1989. Upon arrival, it was noted that the stanchions and supports for the fourth tier of the last row of mobile homes had started to bend, causing some of the mobile homes to shift and sustain minor damage. Jones testified that the damage to the mobile homes was caused by shifting due to the bolts not being properly tightened by the stevedores or caused while the stevedores were unloading the homes. SOGUCI'S insurance underwriters' surveyor, Christian Renaux, reported that the damage was caused by the improper modification of the stanchion system, a failure to properly tighten the connecting bolts, and inadequate bracing of the structure due to welding of stanchions on the deck instead of plates on the deck. Renaux advised that the deformed stanchions should be replaced, and the mobile homes should be transported on only three levels. One of SOGUCI's owners, Michael Porry, testified that five mobile homes were damaged as a result of the first voyage, and were repaired quickly. Jean-Pierre Porry, another SOGUCI owner, testified that he never objected to the transport of the mobile homes in four, rather than three, tiers.
A dispute arose between Houston and Hale concerning the amount of charter hire and other charges due arising from the first voyage. 14
Based on the insistence of its insurers, SOGUCI notified Houston and Project Logistics that it would require a survey of the vessels before departure on the second voyage. Houston subsequently hired NCB as surveyor to assure that the mobile...
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