972 F.2d 426 (1st Cir. 1992), 91-1183, Continental Grain Co. v. Puerto Rico Maritime Shipping Authority

Docket Nº:91-1183.
Citation:972 F.2d 426
Party Name:CONTINENTAL GRAIN COMPANY, et al., Plaintiffs, Appellants, v. PUERTO RICO MARITIME SHIPPING AUTHORITY, et al., Defendants, Appellees.
Case Date:August 13, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 426

972 F.2d 426 (1st Cir. 1992)

CONTINENTAL GRAIN COMPANY, et al., Plaintiffs, Appellants,




No. 91-1183.

United States Court of Appeals, First Circuit

August 13, 1992

Heard July 30, 1991.

Page 427

Anthony J. Pruzinsky with whom Hill, Rivkins, Loesberg, O'Brien, Mulroy & Hayden, New York City, Antonio M. Bird, Jr., and Bird, Bird & Hestres, San Juan, P.R., were on brief, for plaintiffs, appellants.

Nicolas Jimenez with whom Patricia Garrity and Jimenez, Graffam & Lausell, San Juan, P.R., were on brief, for defendants, appellees.

Before BREYER, Chief Judge, SELYA, Circuit Judge, and YOUNG, [*] District Judge.


YOUNG, District Judge.

This case, arising under the admiralty and maritime jurisdiction of the District Court for the District of Puerto Rico, comes before this court upon appellants' appeal from the denial of their motion for summary judgment and the granting of appellees' cross-motion for summary judgment upon the counterclaim asserted against them. 755 F.Supp. 506 (1991). Unless otherwise noted, the facts are undisputed.


  1. General Background

    "It is ... a small [merchant marine]. And yet there are those who love it!" 1

    In 1987, the entire merchant marine of Grenada consisted of a single, small cargo vessel, the M/V ALBATROS. Built in 1952 at Alphen Aan Den Rijn, Holland, the ALBATROS was a single screw, steel cargo vessel of 147.69 registered tons (299.30 gross tons), with a length of 131 feet, and a beam of 24 feet. She had a single cargo deck below two main deck hatches arranged fore and aft, and carried as crew a captain, a mate, an engineer, and three deck hands. Though designed for the shipment of grain in bulk, the ALBATROS was not equipped with shifting boards, lashing gear, or strapping materials to secure such cargo below deck. The Grenada Marketing National Import Board ("the Import Board"), a public corporation created by the Government of Grenada, owned the ALBATROS and made her available for charter commercially.

  2. The Loss of the ALBATROS

    "It was sad,

    Oh it was sad,

    It was sad when the great ship

    Went down ..." 2

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    In December, 1986, the Import Board entered into an oral voyage charter contract with Continental Grain Company ("Continental") to carry corn and soybean meal in bulk from Guanica, Puerto Rico, to the islands of Guadeloupe and Martinique. Three such voyages followed without incident. On the fourth and final voyage, Continental directed the ALBATROS to Guanica, Puerto Rico, to load grain sold to it by its wholly owned subsidiary, Molinos Nacionales, Inc. ("Molinos"), for shipment to the other islands. Under its contract with Continental, Molinos provided the stevedoring services to load the cargo aboard the ALBATROS, subcontracting a portion of the job to Luis Ayala Colon Successores, Inc. ("Ayala"), a Ponce stevedoring contractor.

    For this fourth voyage, the cargo of grain was stored aboard the ALBATROS in the same manner as on the preceding three voyages. That is, though no loading survey had been made of the cargo and hold prior to loading, on January 12, 1987, two Molinos employees operated Molinos' shore-side grain loading equipment to move the bulk grain from Molinos' silo, along a conveyer belt, and through a flexible hose into the ALBATROS' single cargo hold. There it was trimmed by Ayala's men who raked it level. On the main deck, the ALBATROS' engineer operated her single crane amidships, apparently to assist in positioning the grain hose. In this fashion, the ALBATROS took aboard 245.13 metric tons of corn and 80.36 metric tons of soy bean meal, all in bulk but separated by plastic sheeting by type of grain. Once the longshoremen had closed the hatches on the main deck, 998 bags of layer and broiler premix were stowed on deck in the following fashion: Molinos' employees brought the pallets on which the bags were stowed to the pierside where Ayala's longshoremen hooked them to the running tackle from the ship's crane. The ALBATROS' engineer then raised the pallet and swung it aboard where the Ayala longshoremen secured it on the main deck.

    Although he had been absent from the vessel during the initial stages of loading, the master of the ALBATROS, Captain Benedict McLawrence, signed a Puerto Rico Maritime Shipping Authority short form bill of lading as a receipt for the grain cargo. Inspecting his vessel prior to putting to sea, Captain McLawrence found her to be riding on an even keel and, from reading the Plimsol marks, drawing an acceptable 8' forward and 9' aft. He did not, however, perform any stability calculations nor did he have aboard a stability book or other documentation from which he could have made such calculations. On the main deck, the crew of the ALBATROS rigged tarpaulins over the deck cargo and secured them to the hatches. The ALBATROS then cleared Guanica bound for Fort-de-France, Martinique.

    Two days later, the ALBATROS ran into heavy weather some twenty miles off the coast of the island of Dominique. As the ship labored in choppy seas and winds of thirty to forty knots, below decks her cargo of free-flowing grain began to shift to port. As the ALBATROS developed a portside list, the shifting of the grain became inexorable. With the list increasing, Captain McLawrence ordered the ALBATROS' crew to abandon ship and get her people off. Eventually, the ALBATROS capsized and went down. Both the cargo of grain--and the entire merchant marine of Grenada--were thus totally lost.

  3. Prior Proceedings

    "Well now they file their libels

    And they cite Sir Walter Scott.

    And the sailors say the French must pay;

    Their counsel argues not." 3

    Apparently fully insured, Continental recovered the value of its cargo from its insurer, Eagle Star Insurance Company of America ("Eagle"). Continental, Molinos, and Eagle (collectively "the appellants") 4

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    then, inter alia, sued the Import Board as owner of the ALBATROS for the value of the lost cargo. 5 In its turn, the Import Board raised a counterclaim against Continental and Molinos, alleging that they were liable for the value of the ALBATROS when lost at sea. The parties having filed cross-motions for summary judgment on the issues of liability, the district court, in a thorough opinion, denied the appellants' motion and dismissed their complaint but granted the Import Board's cross-motion, thus ruling that Continental and Molinos were liable to the Import Board for the loss of the ALBATROS. Continental, Molinos, and Eagle bring this interlocutory appeal 6 challenging both the denial of their motion for summary judgment and the granting of the Import Board's cross-motion.


    At the outset, some general observations are in order concerning the nature of our review of this appeal, and the legal framework.

    First, we note that the cross-motions for summary judgment from which this appeal is taken were filed at the conclusion of discovery and each motion is supported by copious evidentiary material. There is no reason to suppose any of the parties can adduce any additional evidence. The district judge thus had reason to believe that, in this jury-waived case, he had before him a full evidentiary record. His opinion is replete with numerous "findings" which suggest that the judge drew reasonable inferences based on the weight and persuasive character of this evidence.

    The parties, however, did not bargain for any such innovative procedure; rather, they sought a resolution short of trial based on their individual motions for summary judgment. 7 Under this procedure, the trial judge makes rulings of law--rulings concerning whether, once all reasonable inferences are drawn against granting summary judgment, there exists any "genuine issue of material fact" as to which a trial is warranted. See, e.g., Blanchard v. Peerless Ins. Co., 958 F.2d 483, 485 (1st Cir.1992); Manarite, By and Through Manarite v. City of Springfield, 957 F.2d 953, 955 (1st Cir.1992), petition for cert. filed, No. 91-8269 (May 12, 1992); Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 10, n. 4 (1st Cir.1991); Space Master Int'l., Inc. v. City of Worcester, 940 F.2d 16, 17 (1st Cir.1991); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). It is because summary judgment involves rulings of law alone that our review

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    is plenary. See, e.g., United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); Pedraza v. Shell Oil Co., 942 F.2d 48, 50 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 993, 117 L.Ed.2d 154 (1992). Were it otherwise, i.e. had the judge here been engaged in fact finding after trial, naturally our review would be limited to the usual "clearly erroneous" standard. See, e.g., McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20 (1954); Puerto Rico Ports Auth. v. M/V Manhattan Prince, 897 F.2d 1, 3 (1st Cir.1990).

    Second, although appellants claim that the record is insufficient to determine the cause of the loss of the ALBATROS, we agree with the district court that on this record there is no genuine issue of material fact but that the shifting of the free-flowing grain to port in heavy seas caused first the portside list, then the progressive instability of the vessel, and ultimately her capsizing and sinking. 8

    The ultimate legal question may thus be simply posed--who is here responsible for a stow so unstable that in heavy weather it would shift so severely as to cause the vessel to capsize?

  4. The Loss of the Cargo

    As one might expect, the duty to load, stow, trim, and ultimately discharge a vessel's cargo generally falls on the shipowner who also bears the consequences of any failure. Nichimen Co. v. M.V...

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