Dods Shipping Limited of Nassau, NP v. Karobi Lumber Co., 23702.

• Decision Date: 21 June 1968
• Docket Number: No. 23702.,23702.
• Citation: Dods Shipping Limited of Nassau, NP v. Karobi Lumber Co., 397 F.2d 570, 1968 AMC 1524 (5th Cir. 1968)
• Parties: DODS SHIPPING LIMITED OF NASSAU, N. P., claimant and owner of SS NORCO, Appellant, v. KAROBI LUMBER COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

1968 AMC 1524, 397 F.2d 570 (1968)

DODS SHIPPING LIMITED OF NASSAU, N. P., claimant and owner of SS NORCO, Appellant, v.KAROBI LUMBER COMPANY, Appellee.

No. 23702.

United States Court of Appeals Fifth Circuit.

June 21, 1968.

Alex F. Lankford, III, Mobile, Ala., for appellant.

John H. Tappan, Mobile, Ala., for appellee.

Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.

McRAE, District Judge:

This is an appeal from an order of the District Court for the Southern District of Alabama providing, subject to proof of damages, that libelant Karobi Lumber Company(Karobi) recover from the owners of the SS Norco.Two libels were filed, one on behalf of Karobi, as consignor, and the other on behalf of Bacon-McMillan Veneer Manufacturing Company, the consignee.The two cases were consolidated for trial, and it was agreed at the pre-trial conference that either would be permitted to proceed.Libelants elected to proceed with the Karobi libel.

Karobi's theory was that because of the defective tubing in the ship, the Norco was unseaworthy, and the carrier had therefore violated its duty under the Carriage of Goods by Sea Act (Cogsa), 46 U.S.C. § 1300, et seq., and particularly 46 U.S.C. § 1303(1)(a).

Dods Shipping Limited of Nassau, N.P., claimant and owner of the SS Norco (Dods) argued that since the voyage was under a charter, the provisions of Cogsa did not apply.46 U.S.C. § 1305.In addition, Dods asserted that it had proved the exercise of due diligence and was therefore relieved of liability under 46 U.S.C. § 1304(1).The critical provisions of Cogsa under the facts of the present case are found in 46 U.S.C. § 1305, as follows:

* * * The provisions of this chapter shall not be applicable to charter parties; but if bills of lading are issued in the case of a ship under a charter party, they shall comply with the terms of this chapter.Nothing in this chapter shall be held to prevent the insertion in a bill of lading of any lawful provisions regarding general average.Emphasis added.

The record is confusing and unclear as to the contractual agreements under which the Norco operated.It is plain however, that Dods was the owner of the vessel and originally chartered her to Ships and Cargoes, Inc., although she was operated by Lumber Carriers, Ltd.(composed apparently of one Tibbetts, who was also chief engineer, and one Sullivan).The record further shows that before the voyage in question Ships and Cargoes, Inc. failed to meets its obligations under the charter, and Lumber Carriers, Ltd. chartered the vessel directly from Dods on a bareboat charter.

The asserted liability arises out of alleged damages to a cargo of virola logs carried by the SS Norco from San Lorenzo, Ecuador, to Mobile, Alabama.The evidence showed that these logs, if allowed to remain out of water longer than one month, become infested with worms and split, thereby virtually destroying their value.The normal time for a cargo to reach Mobile from San Lorenzo is eight to twelve days.The Norco left San Lorenzo on October 19, 1963, and did not arrive in Mobile until February 17, 1964.Karobi argues that this delay caused the logs to become so wormy and split that they were greatly reduced in value, with the resulting losses claimed.The trees, after being cut at the "proper stage of the moon," were loaded with at most only minor splits.From the evidence produced at the trial, the court found in effect that the trees at the time of loading were in good condition.

Two bills of lading were introduced at the trial.

The Norco had two scotch boilers which functioned by passing water through a series of tubes, there being two hundred tubes to each boiler, in order to generate steam.Prior to the voyage, the ship had undergone repairs at Port of Spain where twenty tubes were replaced, and also at Curacao, Netherlands.During the first portion of the voyage, the ship...