Leather's Best, Inc. v. SS Mormaclynx
Decision Date | 29 October 1971 |
Docket Number | No. 36,Docket 35562.,36 |
Citation | 451 F.2d 800 |
Parties | LEATHER'S BEST, INC., Plaintiff-Appellee-Cross Appellant, v. S.S. MORMACLYNX et al., Defendants-Appellants-Appellees. |
Court | U.S. Court of Appeals — Second Circuit |
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F. Herbert Prem, New York City (Bigham, Englar, Jones & Houston, New York City, of counsel), for plaintiff-appellee-cross appellant.
John H. Reilly, Jr., New York City (Hyde, Dickerson & Reilly, New York City, of counsel), for defendants-appellants-appellees.
Kirlin, Campbell & Keating, New York City (Walter P. Hickey and Richard H. Sommer, New York City, of counsel), for United States Lines, Inc., as amicus curiae.
Before FRIENDLY, Chief Judge, and MULLIGAN and TIMBERS, Circuit Judges.
The facts of this case, which has already attracted considerable attention in maritime legal circles,1 are simple; the legal problems, some of them not apprehended by the parties, are difficult.
Plaintiff Leather's Best, Inc. ("the shipper") purchased some 11 tons of leather in 1967 from Carl Freudenberg, whose plant was at Weinheim, Germany. The seller's employees loaded the leather into 99 cartons, averaging 4' in length, 2' in width, and 1½' in height, and placed steel straps around them, thereby making them qualify as "bales" under the applicable tariff, which provided a fixed price per kilogram for leather in bales or rolls. At the request of the Freudenberg firm, a truckman engaged by the agent of Moore-McCormack (Mooremac) in Germany delivered to the plant a metal container owned by Mooremac which was 40' long, 8' high and 8' wide. With the truck driver watching, the seller's employees loaded the container and sealed it. The truck driver gave a receipt.2
The driver delivered the container to the S.S. Mormaclynx at Antwerp, Belgium. Mooremac's agent at Rotterdam, Holland, issued a bill of lading which described the goods as follows:
Number and kind of packages; description Gross Measurement Marks & Nos. of goods Weight C F W 1 container s.t.c NEW YORK 99 bales of leather 10864 kos MADE IN GERMANY 2202/1-99 Container nr UB 9622 209134 HOUSE-TO-HOUSE Seal Nr. 26844 SHIPPER'S LOAD AND COUNT IN TRANSIT
The lower left hand corner of the bill of lading stated, in legible capital letters:
SHIPPER HEREBY AGREES THAT CARRIER\'S LIABILITY IS LIMITED TO $500 WITH RESPECT TO THE ENTIRE CONTENTS OF EACH CONTAINER EXCEPT WHEN SHIPPER DECLARES A HIGHER VALUATION AND SHALL HAVE PAID ADDITIONAL FREIGHT ON SUCH DECLARED VALUATION PURSUANT TO APPROPRIATE RULE IN THE CONTINENTAL NORTH ATLANTIC WESTBOUND FREIGHT CONFERENCE TARIFF.
The following clauses on the back of the bill of lading are also relevant:
The Mormaclynx arrived in Brooklyn on Saturday, April 25, 1967. The container, sealed and undamaged, was unloaded by stevedores and was placed in a large terminal area operated by Mooremac's wholly owned subsidiary, Tidewater Terminal, Inc. ("Tidewater") to await pick up by the shipper. The area was accessible through four gates. Two were open 24 hours a day, supposedly under the continuous supervision of watchmen. The other two were open only from 8:00 A.M. to 4:00 P.M. on weekdays and were similarly guarded at those times. At least one roving watchman was on duty to see that there were no unauthorized persons on the pier and that no one opened any container. Records were kept of all trucks entering and leaving the terminal area.
On Monday, April 27, the shipper's truckman arrived at 9:30 A.M. to pick up the container. It could not be located, although the delivery book at the pier had not been signed. The fence around the area bore no signs of tampering. Next day the police found the container empty, at Freeport, L.I., some 25 miles away. The goods have not been recovered, and the details of the theft have never been reconstructed.
In this suit in admiralty in the District Court for the Eastern District of New York, plaintiff sought damages in the amount of the alleged value of the leather from the ship, Mooremac, and Tidewater. In a thorough opinion, 313 F. Supp. 1373 (1970), Judge Judd held (1) that the defendants had been negligent in their custody of the container; (2) that the 99 bales rather than the single container constituted "packages" for the purposes of paragraph 13 of the bill of lading and § 4(5) of the Carriage of Goods by Sea Act (COGSA);3 (3) that the limitation of liability to $500 per container was invalid even though the loss occurred after discharge and was therefore governed by the Harter Act4 rather than COGSA; but (4) that because of the definition of "carrier" in clause 2. of the bill of lading to include "all persons rendering service in connection with performance of this contract," the limitation of liability to $500 per bale was available to Tidewater as well as to Mooremac. Accordingly, he rendered judgment for $49,500, together with interest and costs, against all the defendants. They appeal from the holdings numbered (1), (2) and (3); plaintiff appeals from the failure to award full damages, claimed to be...
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...Sea-Land also attempts to characterize its containers as integral or functional parts of its vessels. (See Leather's Best, Inc. v. S. S. Mormaclynx (2d Cir. 1971) 451 F.2d 800, 815.) However, the fact that the containers are specifically designed to be carried aboard ship does not alter the......
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...exercise of discretion in favor of pendent jurisdiction is particularly appropriate in admiralty cases. Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 808-11 (2d Cir. 1971). 4 The evidence shows that the tail boom serves two very important functions: it acts as a counterweight to th......
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