J. GERBER & COMPANY v. SS Sabine Howaldt

• Decision Date: 29 December 1969
• Docket Number: No. 66 Civ. 2605,66 Civ. 4241.,66 Civ. 2605
• Citation: 310 F. Supp. 343
• Parties: J. GERBER & COMPANY, Inc., Plaintiff, v. SS SABINE HOWALDT, her engines, etc., v. HOWALDT & COMPANY, Defendant. PAN AMERICAN TRADE DEVELOPMENT CORPORATION, Plaintiff, v. SS SABINE HOWALDT, her engines, etc., v. HOWALDT & COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

310 F. Supp. 343

J. GERBER & COMPANY, Inc., Plaintiff, v. SS SABINE HOWALDT, her engines, etc., v. HOWALDT & COMPANY, Defendant.

PAN AMERICAN TRADE DEVELOPMENT CORPORATION, Plaintiff, v. SS SABINE HOWALDT, her engines, etc., v. HOWALDT & COMPANY, Defendant.

Nos. 66 Civ. 2605, 66 Civ. 4241.

United States District Court, S. D. New York.

December 29, 1969.

Bigham, Englar, Jones & Houston, New York City, for plaintiffs; F. Herbert Prem, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for defendant; R. Glenn Bauer, Wharton Poor, New York City, of counsel.

PALMIERI, District Judge.

Preliminary Statement

These are two consolidated actions in admiralty in which redress is sought for sea water damage to a cargo of steel products transported by the SS Sabine Howaldt on a winter voyage from Antwerp, Belgium, to the ports of Wilmington, Delaware, and Alexandria, Virginia. The vessel is a relatively small cargo vessel with a low freeboard, hatch coamings only about four feet above the deck and two unusually large hatch openings, one aft and one forward of the bridge. The voyage began at Antwerp on December 15, 1965. The SS Sabine Howaldt arrived at Wilmington on January 3, 1966. She sailed from Wilmington on January 4, 1966, and began discharge of her cargo at Alexandria on January 6, 1966.

The steel products in question were transported to Antwerp from mills located at inland points in France, Belgium and Luxembourg. The sea water wetting occurred during the voyage, by admission of the master of the vessel, through leaky MacGregor hatch covers and down uncovered ventilators. Routine inspection of the cargo compartments during the voyage revealed that cargo had been wet.

The plaintiffs' evidence sufficiently established that the shipments were free from damage by sea water when delivered to the defendant at Antwerp.

The weather was stormy but not unusual for a North Atlantic winter crossing. The vessel took green seas over its hatch covers as well as spray over its superstructure. The captain testified to his having to look up on occasion to see the tops of the waves from the bridge. But considering the size and structure of the vessel and the time of year this was a foreseeable situation. The vessel had a freeboard of only about two feet when it left Antwerp and the captain who, apparently facetiously, referred to his ship as a "submarine ship," admitted that at sea, with only a "little wind" and the vessel "moving a little," the sea would run over the deck. With the hatch coamings admittedly about four feet above the deck, waves of about six feet could be expected to wash over the hatch coamings. Indeed, the captain expected, when he left Antwerp on December 15, 1965, to take water over his hatches a considerable part of the voyage; and further, that in any storm his hatch coamings would be struck by waves with considerable force.

In amplification of what has been said, and as a supplement thereto, the findings of fact and conclusions of law which follow are intended to demonstrate that the plaintiffs are entitled to recover for the damage to the cargo in question.

FINDINGS OF FACT

1. J. Gerber & Company, Inc., plaintiff in 66 Civ. 2605, is a corporation organized and existing under the laws of the State of New York, with an office and place of business at 855 Avenue of the Americas, New York, N. Y.

2. Pan American Trade Development Corporation, plaintiff in 66 Civ. 4241, is a corporation organized and existing under the laws of the State of New York, with an office and place of business at 2 Park Avenue, New York, N. Y.

3. The Sabine Howaldt, a German flag vessel, owned by defendant Howaldt & Company, was time-chartered to Contramar S.A. for a voyage from Antwerp to Wilmington, Delaware, and Alexandria, Virginia. Contramar S.A. took delivery of the vessel at Antwerp on or about December 14, 1965. Continental Lines, S.A., acted as agent for Contramar S.A. in Antwerp.

4. The dimensions of the Sabine Howaldt are:

                Overall length            306' 4"
                Breadth                    40' 7"
                Depth to tween deck        15' 4"
                Depth to upper deck        23' 7"
                Depth to quarterdeck       26' 10"
                Deadweight tonnage       3,507 long tons
                Gross tonnage            2,288.43
                Net tonnage              1,499.51
                

The vessel has four hatches, four holds for general cargo, and nine derricks worked with electric winches. The weather deck hatches are closed with MacGregor type panels, the tween deck hatches with wooden hatch covers. Although the hatches are referred to for shipboard purposes as hatches 1, 2, 3 and 4, there are actually two large hatch openings, one forward of the bridge and one aft of the bridge. The forward hold is served by a large hatch measuring 59.8 feet in length and 17¾ feet in width, while the aft hold is served by another large hatch measuring over 68 feet in length by 17¾ feet in width. Based on the number of bulkheads in the hold there are two holds, one forward and one aft. The bridge is situated amidships.

5. Howaldt & Company, defendant in both the above-entitled actions, is a corporation organized and existing under the laws of the Federal Republic of Germany, with an office at Flensburg, West Germany.

6. On or about December 14, 1965, Somef, S.A., delivered to Continental Lines, S.A., and the SS Sabine Howaldt, at the port of Antwerp, 665 "giant" coils of galvanized steel wire, owned by plaintiff J. Gerber & Company, Inc., for transportation to the port of Wilmington, Delaware. They were later loaded in the tween decks of the vessel. Three hundred ninety-seven of the coils were manufactured in Belgium and two hundred and sixty eight in France.

7. The galvanized steel wire was manufactured under the supervision of experienced technical engineers, and by processes customarily used in the fabrication of similar products. When the steel wire left the two mills for Antwerp, it was of good quality, in sound condition, properly packed and not wet or wet stained.

8. Upon delivery to defendant and the Sabine Howaldt at Antwerp, the shipments of plaintiff Gerber were not wet or rusty, having been protected in a covered shed by tarpaulins. They had not been wet by sea water.

9. After plaintiff Gerber's shipments were received by Continental Lines, S. A., they were loaded on board the Sabine Howaldt and Continental, on behalf of the master, duly issued five "clean" bills of lading, i. e., ladings not endorsed with exceptions as to appearance or condition of the cargo.

10. Upon discharge of plaintiff Gerber's shipments at Wilmington, defendant's marine surveyor, Quistgaard, and plaintiff's surveyor, Owen, in a joint survey, as well as Hartoch, plaintiff's vice president, examined the coils of steel wire and saw extensive conditions of rust and pitting. Their examinations of the damaged steel wire, together with the results of silver of nitrate tests made by the surveyors and chemists, established that the damage was caused by sea water wetting.

11. On or about December 14, 1965, 446 lifts of steel, beams, angles, channels, flats and bars, owned by plaintiff Pan American Trade Development Corporation, were delivered to defendant and the Sabine Howaldt at the port of Antwerp, for transportation to the port of Alexandria, Virginia.

12. Upon the aforesaid delivery to defendant and the Sabine Howaldt, the steel products of plaintiff Pan American were examined by Boeren, the charterer's chief tally clerk, accompanied by the ship's chief officer. Boeren found the steel products to be "in good condition, except rust," which he attributed to "fog and temperature"; that the rust spots were "atmospheric rusty"; that it was "impossible" for sea water to get on the steel while on the dock.

13. Continental Lines, S.A., on behalf of the master duly issued nineteen bills of lading, six of which were clean; the remaining thirteen ladings bore exceptions of "rust," or "rust stained," or "wet before shipment." Notations to this effect were placed on the bills of lading by Boeren.

14. Atmospheric rust is a normal condition in steel products, giving it a slightly dull appearance when exposed to the atmosphere. Such appearance is readily distinguishable from heavy rust and pitting resulting from sea water wetting.

15. Upon discharge of plaintiff Pan American's shipments at Alexandria, defendant's marine surveyor, Carter, and plaintiff's marine surveyor, Pringle, in a joint examination, saw extensive conditions of rust and pitting in respect of the steel products of all nineteen bills of lading. Examinations of the steel, and silver of nitrate tests made by the surveyors, established that the damage was caused by sea water wetting; material from the damaged cargo was taken by Carter to a chemist whose tests confirmed the determination reached by the surveyors. The damages reported by defendant's surveyor Carter, and plaintiff's surveyor Pringle, as a result of their joint examination, relates only to rust and pitting caused by the sea water wetting. The estimates of damage agreed upon by those surveyors were based upon sea water wetting. Their estimates and depreciation allowances were fair and reasonable. None of the damages included in the depreciation allowances was of pre-shipment origin.

16. Pringle took photographs of the damaged steel after discharge from the Sabine Howaldt at Alexandria. The steel products of plaintiff Pan American, while lying on the pier at Antwerp, did not have the damaged appearance and condition shown in Pringle's photographs.

17. Upon discharge at the port of Alexandria, the cargo described in the six "clean" bills of lading, bearing numbers 5, 14, 23, 31, 32 and 36, was damaged by "heavy rust, salt" by reason of sea water wetting, similarly, as was the steel cargo covered by the thirteen bills of lading bearing the exceptions "wet before shipment," "rust stained" and "partly rust stained."

18. The steel products covered by Pan American's bill of lading number...