602 F.2d 49 (2nd Cir. 1979), 894, Internatio, Inc. v. M. S. Taimyr

Docket Nº:894, Docket 78-7642.
Citation:602 F.2d 49
Party Name:INTERNATIO, INC., Plaintiff-Appellee, v. M. S. TAIMYR, her engines, boilers, tackle, etc., and Wilh. Wilhelmsen and Barber Lines, A/S, Defendants-Appellants.
Case Date:July 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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602 F.2d 49 (2nd Cir. 1979)

INTERNATIO, INC., Plaintiff-Appellee,

v.

M. S. TAIMYR, her engines, boilers, tackle, etc., and Wilh.

Wilhelmsen and Barber Lines, A/S, Defendants-Appellants.

No. 894, Docket 78-7642.

United States Court of Appeals, Second Circuit

July 9, 1979

Argued April 19, 1979.

Chester D. Hooper, New York City (Haight, Gardner, Poor & Havens, New York City, Nicholas H. Cobbs and M. E. DeOrchis, New York City, of counsel), for defendants-appellants.

John T. Kochendorfer, New York City (Bigham, Englar, Jones & Houston, New York City), for plaintiff-appellee.

Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and OWEN, District Judge. [*]

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a judgment for $48,650 plus interest entered in the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, in favor of an importer of cocoa against the owner and charterer of the ship on which a damaged shipment of cocoa beans was carried. Liability is conceded, but the amount of damages remains in issue. We reverse and remand for entry of a judgment in accordance with this opinion.

Internatio, Inc. is engaged in international commodities trading. On June 23, 1976, Internatio purchased 250 metric tons (the equivalent of 4,000 bags) of Nigerian raw cocoa beans from Henry Stephens & Sons (London) Limited ("Stephens") for delivery between December 1976 and February 1977 to ports in the United Kingdom at a price of $.81152 per pound. On July 1, 1976, Internatio contracted to deliver 300 metric tons of cocoa to M & M Mars, Inc. ("M & M") in Europe during the same time period at a price of $.8572 per pound. The contract for sale to M & M later was modified to call for delivery of 250 metric tons "ex dock" Philadelphia at an increased price of $.9172, which reflected the added freight

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charge for delivery to the United States. Internatio then arranged to have delivery of its purchase from Stephens made in Philadelphia rather than in the United Kingdom, also with an adjustment in price.

On January 29, 1977, 4,000 bags of cocoa beans were delivered on behalf of Stephens at Lagos, Nigeria for transportation to Philadelphia on the M.S. TAIMYR. The TAIMYR was owned by Wilh. Wilhelmsen and chartered by Barber Lines, A/S (both of which are Norwegian business entities doing business in New York...

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