Cooper v. Pinedo, 14580.

• Decision Date: 15 April 1954
• Docket Number: No. 14580.,14580.
• Citation: 212 F.2d 137
• Parties: COOPER et al. v. PINEDO. THE ZESTA.
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 137 (1954)

COOPER et al. v. PINEDO THE ZESTA.

No. 14580.

United States Court of Appeals Fifth Circuit.

April 15, 1954.

Cody Fowler, Walter Humkey, Miami, Fla., Fowler, White, Gillen, Yancey & Humkey, Tampa, Fla., of counsel, for appellant.

Douglas D. Batchelor, David W. Dyer, Miami, Fla., advocates, Smathers, Thompson, Maxwell & Dyer, Miami, Fla., proctors, for appellee.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

RIVES, Circuit Judge.

This admiralty libel in rem was brought by the sub-charterers of the M/V "Zesta" against its owners to recover damages to a cargo of bananas, it being alleged that the loss resulted by reason of the vessel's unseaworthiness, her unfitness to carry the cargo, and the negligence of her master and crew.¹ At the trial it was agreed that the issue of liability should be governed by the terms of the original charter party, which consisted of a printed form with inserted typewritten provisions for delivery of the vessel "in a seaworthy condition, * * * the refrigeration to be in perfect mechanical working condition, able to keep temperatures as directed by Charterers", and further stating "that the vessel is not responsible for damages to cargo resulting from any other causes but the actual negligence on the part of the crew." The printed portion of the charter party form also contained the "U. S. A. Clause Paramount", which provided that "This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein," and, "If any term of this bill of lading be repugnant to said Act to any extent, such term shall be void to that extent, but no further."

Libelants engaged the services of the Zesta subject to the aforementioned terms and conditions in October, 1951, for the purpose of picking up a specified quantity of bananas at Santa Marta, Colombia, and transporting them to Miami, Florida. Before the vessel left Miami, libelants instructed the Captain via letter to pre-cool the holds by turning on the vessel's refrigeration equipment twenty-four hours prior to loading, and directed that hold temperatures should be maintained at from 54 to 56 degrees Fahrenheit during the voyage.

The bananas were purchased through a cooperative marketing association at Santa Marta, by means of a letter of credit covering the desired price for a specific number of banana stems. The letter of credit covering this particular cargo called for 6,000 stems, but in order to allow for rejection of any bad fruit, the purchasing agent of the association published a cutting order to the local farmers specifying 6,480 stems "three quarters full".² Approximately 7,150 stems were cut and delivered to the dock, the overage being due to the cutting of more fruit by the farmers than was called for in the order, since each farmer hoped his excess fruit would be accepted in lieu of other fruit rejected. This situation necessitated a very strict selection of the fruit for shipment, and though it is claimed that the fruit loaded was overripe and the trial court made no specific finding in this regard, the proof is practically conclusive that the bananas selected for the cargo were in good condition when delivered.

The Zesta reached Santa Marta at approximately 1:50 A. M. on Tuesday, October 23. The vessel's log reveals that engine trouble occurred during the voyage, which lasted for several hours, during which time the ship was without power and drifting. Though the normal time required for pre-cooling the holds on the vessel was from 15 to 18 hours, on this particular voyage the refrigeration equipment was started about 61 to 62 hours before the estimated time of arrival and about a day and a half in advance of libelants' requested pre-cooling period. For effective operation the system required a chemical cooling compound called freon, it being necessary to add from 30 to 40 pounds of this freon for each voyage, and there is no direct testimony that it was added for this particular trip. There is further testimony that the Zesta was a former Naval vessel with refrigeration equipment originally designed for the carriage of frozen foods; that the ship was bought from the Navy and converted in 1947 for use in the banana-carrying trade; that the refrigeration equipment was not new, and that temperature control was not fully automatic, but was to some extent regulated manually; that hold temperatures were supposed to be recorded accurately on charts, but that the recording machine was defective and, according to testimony of the Zesta's Captain, known to stick "nearly every trip", so as to record the same temperature for several hours or until it became unstuck, which defect in operation caused the recording of temperatures different from the actual temperature of the hold. The only evidence by respondent of due diligence to make the vessel seaworthy was testimony that it was in dry dock a month or longer prior to this particular voyage, but there is no showing as to the exact date of any inspection or overhaul and as to what repairs were then made; and, although respondent's mechanic, Waller, testified that he checked the refrigeration equipment at that time, he did not testify positively that he checked it before this particular voyage.

The banana cargo was loaded aboard the Zesta by 5:30 P. M. on Tuesday, October 23, and the vessel departed from Santa Marta for Miami at 6:00 P. M. During the loading there were many complaints to the ship's officers that temperatures in the holds were too high for safe transportation of the fruit.³ While normally the hold temperatures should have reached the desired 54-56 degrees within 36 hours after the holds were closed and the ship sailed, according to the vessel's own temperature charts the No. 1 hold did not reach this temperature until about 96 hours after departure, No. 2 hold was lowered to 56 degrees some 72 hours after leaving, and No. 3 hold reached 55 degrees about 94 hours after leaving Santa Marta, and only one day before the vessel's arrival in Miami at 3:00 P. M. on October 28.

Commitments for sale of the vessel's entire banana cargo had been made prior to its arrival, but subject to delivery of the fruit in good condition. However, when the hatch covers were removed in Miami the fruit in Holds No. 1 and No. 2 were in a ripened condition and unmarketable, while the fruit in Hold No. 3 was chilled and could not be sold. The cargo was rejected by the purchaser's agents as unmarketable,⁴ so that it became necessary to sell the fruit that could be salvaged at a much lower price locally. The contract price which the fruit would have brought had it been in good condition was $15,718.00, while the amount actually received for it in its damaged condition, less necessary allowances was $2,335.83, thereby revealing damages to libelants in the amount of $13,382.17.

The District Court, on the basis of the depositions and oral testimony, found (1) that, "On the particular voyage involved herein, respondent vessel was a private carrier", and "The parties could, therefore, unrestrictedly contract"; (2) that "The typewritten provision in the original time charter entered into between Claimant and Pan American Shipping Corporation was controlling as to the liability for damages to the cargo"; (3) that "The burden of proof was upon libelants to prove damages to the cargo resulting from actual negligence on the part of the crew, and libelants failed to carry this burden"; and, (4) "Since libelants have failed to prove that vessel's crew was negligent, and since the claimant and crew used due diligence in providing a seaworthy vessel, the libel should be dismissed at the cost of libelants."

On this appeal libelants strenuously insist that, under all the provisions of the charter party, the court erroneously misplaced the burden of proof in requiring libelants, as a condition to their recovery, to prove actual negligence on the part of the crew; that, even though respondent contracted as a private carrier, under the charter it had, in effect, assumed the obligations of a common carrier, so as to place upon it the burden of proving the seaworthy condition of the ship and its refrigeration equipment; that the court placed undue emphasis upon the typewritten provision exempting respondent from liability for damage to the cargo except for actual negligence of the crew,...