Armco Chile Prodein, SA v. M/V NORLANDIA, 90-1081-Civ-J-20.
| Decision Date | 27 March 1995 |
| Docket Number | No. 90-1081-Civ-J-20.,90-1081-Civ-J-20. |
| Citation | 1995 AMC 2403,880 F. Supp. 781 |
| Parties | ARMCO CHILE PRODEIN, S.A., and Compania De Seguros Cruz Del Sur, S.A., Plaintiffs, v. The M/V NORLANDIA, etc., in rem, and Scheepvaartmij Antigua, in personam, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
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Machale A. Miller, Alfred J. Rufty, III, O'Neil, Eichin, Miller & Breckinridge, New Orleans, LA, Alan B. Vlcek, Alan B. Vlcek, P.A., G.J. Rod Sullivan, Jr., Law Offices of Sullivan & Boyd, Jacksonville, FL, for plaintiffs.
Robert E. Warren, Taylor, Moseley & Joyner, P.A., Jacksonville, FL, for defendants.
Trial in this cause was held before the undersigned. Based on the testimony and evidence received during trial, and the applicable legal standards, the Court makes the following findings of fact and conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.
Plaintiffs, Armco Chile Prodein, S.A. ("Armco") and Compania De Seguros Cruz Del Sur, S.A. ("Cruz"), are suing the M/V Norlandia, in rem, and Scheepvaartmij Antigua ("Antigua"), in personam. This is an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. This Court has jurisdiction of this cause pursuant to 28 U.S.C. § 1333.
This is an action for damage to a cargo of filament wound, fiberglass reinforced pipes carried aboard the NORLANDIA from Jacksonville, Florida to Talcahuano, Chile in November of 1989. The owner of the pipes, Armco, and its insurer, Cruz, have brought this action against the vessel and its owner, Antigua, to recover for damage to the pipes.
H.A. Simons is an engineering/construction firm in Vancouver, British Columbia. H.A. Simons contracted with Celluloso del Pacifico, S.A. ("Celpac"), a Chilean company, for construction of a paper mill in Renaico, Chile.
Armco is a Chilean company engaged in the business of manufacturing and selling filament wound, fiberglass reinforced pipes. Armco contracted with Celpac to supply approximately 27 kilometers of filament wound, fiberglass reinforced pipes to be used to transport the effluent from Celpac's paper mill near Renaico, Chile to a distant river.
The contract between Armco and Celpac set forth a delivery schedule requiring delivery of a certain number of pieces of pipe per month between November of 1989 and November of 1990.
Armco, knowing that it might not have its pipe plant in Chile on-line in time to meet the delivery schedule for the pipes, negotiated a provision in its contract with Celpac allowing Armco to subcontract the manufacture of a portion of the pipes to Price Brothers, Inc. ("Price Brothers"), which is located in Green Cove Springs, Florida.
Armco contracted with Price Brothers to manufacture 497 pieces of pipe. Each of the 497 pieces measured sixty feet in length. 207 pieces measured 900mm in inner diameter. 290 pieces measured 100 mm in inner diameter.
It was Armco's responsibility to ship the pipes from Florida to Chile. Thus, Armco entered into a conline booking note with Meridian Ship, Inc. ("Meridian")1 on October 30, 1989. See Conline Booking Liner Booking Note (Plaintiffs' Ex. No. 45).
Meridian was in the business of locating cargo owners interested in having their cargoes shipped. Meridian contracted with those owners for shipment and then chartered (i.e., leased) vessels from various ship-owners who actually performed the transportation aboard the vessel. Meridian specialized in project cargoes.
The booking note called for direct transit from Jacksonville to Talcahuano. See Clause 7 of the Addendum to the Booking Note. The booking note also stated that Meridian was to oversee the packing of the cargo. See Clause 6 of the Addendum to the Booking Note.
Meridian chartered the NORLANDIA from Antigua, the owner of the vessel, to use in connection with the transportation of Armco's/Price Brothers' pipes. See Charter Party (Plaintiffs' Ex. No. 81).
The charter party expressly gave Meridian authority to sign bills of lading on behalf of the master of the NORLANDIA. See Clause 33 of the Charter Party (Plaintiffs' Ex. No. 81).
Prior to shipping the pipes, Meridian received details concerning the nature, characteristics and strength of the pipes. Armco provided Meridian with the dimensions and weights of the pipes. At a meeting in October of 1989, Price Brothers provided Meridian with information concerning tensile strength, ovality and hoop strength, among other things.
Meridian also asked Armco about permissible stacking heights. In response to this, Meridian was informed that if the carrier wished to stack four high, then the upper tier should consist of unnested pipes, and stiffeners should be placed between the lower two tiers so that the weight of the upper tiers would be borne by the stiffeners rather than the pipes. See Plaintiffs' Ex. Nos. 17 and 39.
The freight for the ocean voyage was calculated by volume. To minimize the cost, the pipes were nested. This means that the 900mm pipes were inserted into the 1000mm pipes.
These nested pipes were then placed two (2) across on nine (9) wooden saddles. The saddles or cradles were made of 4" × 6" timbers with chocks to prevent the pipes from rolling.
Only one rate of freight was offered for the transportation of the pipes. Alternate freight rates were not offered.
Armco insured the cargo under a policy of all-risk cargo insurance which provided the coverage for the damages forming the basis of this litigation.
Cruz is a Chilean insurance company that provided cargo insurance to Armco for the fiberglass pipes that were carried aboard the NORLANDIA.
After the pipes were nested and packaged, Price Brothers loaded the pipes onto trucks for transport from Green Cove Springs to the Jacksonville dock. The pipes were properly constructed and in good order and condition and free of starbursts, cracks, crazings, delaminations and any other damage when they left Price Brothers' plant on trucks for the Jacksonville dock. Price Brothers' quality control inspectors examined each and every pipe after manufacture and supervised the nesting and loading onto the trucks.
Jerry Winters, Price Brothers' plant manager, and Jack Welch, Meridian's pipe engineer/project consultant, accompanied the first few truckloads from Price Brothers' plant to the dock. Mr. Winters and Mr. Welch observed that the transit from Green Cove Springs to Jacksonville occurred without incident.
On or about November 23, 1989, the cargo of 497 fiberglass pipes was delivered to Defendants at the port of Jacksonville, Florida.
Mr. Winters was in attendance when the initial loads of pipe were discharged from the trucks. Mr. Winters instructed the ocean carrier and its stevedores on the proper techniques to be used in off-loading the pipes from the trucks. Mr. Winters was satisfied that the pipes were properly off-loaded from the trucks and landed on the dock in good order and condition.
The pipes on the dock were inspected and no damage was found. Furthermore, no resin was found on the trucks that transported the pipes from Green Cove Springs to Jacksonville.
The shipment of this cargo is evidenced by a bill of lading issued on or about November 24, 1989. Meridian's agent, Palmetto Shipping and Stevedoring Company, Inc., ("Palmetto Shipping") signed the bill of lading. The bill of lading is evidence that the cargo was delivered in apparent good order and condition.
The pipes were loaded on the NORLANDIA both below-deck and on-deck.
The bill of lading was claused to show the partial on deck stowage.
Approximately 414 pieces of pipe were loaded below deck and approximately 83 pieces were loaded on deck.
All of the evidence indicates that the pipes were in good order and condition when delivered to the dock and loaded aboard the vessel.
The pipes were inadequately stowed on the NORLANDIA, causing them to flex unchecked and unfettered while the NORLANDIA pitched, heaved and rolled. The Captain of a ship is the party ultimately responsible for ascertaining if the cargo can be safely carried. In the instant action, this could have been done by preventing the movement or motion of the cargo. The Captain is the person who has the final responsibility for the safety of the cargo.
Cargo on a ship can move on three different axes — vertical movement in two directions — up and down when the ship rises and falls between peaks of waves; horizontal movement in 4 directions — towards bow and stern when the ship pitches front and aft, and port starboard (right and left) as the ship rolls from side to side. Such movement can be prevented by using dunnage such as 4" × 4" lengths of timber to prevent horizontal movement and by using a false plywood floor with 4" × 4" legs to prevent vertical movement. Also, blocks of wood and lashing straps can impede some movement.
The deck cargo was loaded in two locations. One portion was loaded in the forward reaches of the ship. The other portion was loaded in the aft reaches of the vessel. Most of the deck cargo was loaded to a height of three tiers. Only unnested pipes were loaded on deck. The deck cargo was lashed down. Chains were placed over the pipes with small pieces of wood placed between the chains and the pipes. This, however, was inadequate. The chains cut into the pipes. The pipes should have been lashed by placing the chains over the wooden cradles on which the pipes were sitting.
The pipes on-deck were not properly secured. Expert testimony established that periodic inspections of the on-deck pipes were required so that the lashings, loosened by the pitching of the ship, could be tightened as needed. Defendants failed to take this precaution. As a result, the on-deck cargo came adrift and the pipes were battered while flailing about loosely on deck.
With respect to the cargo carried below deck, Defendants failed to tie...
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