F. Badrena E. Hijo, Inc. v. The Rio Iguazu, 973.

• Decision Date: 18 January 1960
• Docket Number: No. 973.,973.
• Citation: 182 F. Supp. 885
• Parties: F. BADRENA E. HIJO, INC., v. THE Steamship RIO IGUAZU, Her Engines, Boilers, Tackle, etc., and Her Owner, Flota Mercante del Estado and The United States of America (War Shipping Administration), Universal Navigation Corporation and Waterman Steamship Corporation.
• Court: U.S. District Court — Eastern District of Louisiana

182 F. Supp. 885

F. BADRENA E. HIJO, INC., v. THE Steamship RIO IGUAZU, Her Engines, Boilers, Tackle, etc., and Her Owner, Flota Mercante del Estado and The United States of America (War Shipping Administration), Universal Navigation Corporation and Waterman Steamship Corporation.

No. 973.

United States District Court E. D. Louisiana, New Orleans Division.

January 18, 1960.

Deutsch, Kerrigan & Stiles, Malcolm W. Monroe, Robert B. Deane, New Orleans, La., proctors for libelant.

Chaffe, McCall, Phillips, Burke & Hopkins, Leon Sarpy, Donald A. Lindquist, New Orleans, La., proctors for Flota Mercante del Estado.

Phelps, Dunbar, Marks, Claverie & Sims, J. Barbee Winston, New Orleans, La., proctors for Waterman SS Corp.

M. Hepburn Many, U. S. Atty., Kathleen Ruddell, Asst. U. S. Atty., New Orleans, La., for the United States.

CHRISTENBERRY, Chief Judge.

This is an action for damage to a shipment of 524 bales of jerked beef carried from Buenos Aires, Argentina, to New Orleans, Louisiana, on the Steamship Rio Iguazu, and subsequently carried from New Orleans, Louisiana, to San Juan, Puerto Rico, on the Steamship Unaco, in the year 1944. The Rio Iguazu was owned and operated by Flota Mercante del Estado, hereinafter referred to as Flota, and the SS Unaco was owned by Universal Navigation Corporation, and under time charter to the United States of America. Waterman Steamship Corporation, hereinafter referred to as Waterman, acted as agent for the United States of America.

On discharge from the SS Unaco in San Juan, the shipment was found to be damaged. The nature of the damage was sourness, as a result of which the jerked beef was unfit for human consumption. An action was filed in this Court in September, 1945, by F. Badrena e Hijo, Inc., in the amount of $15,000 against the Rio Iguazu and Flota Mercante del Estado, and the United States of America (War Shipping Administration), Universal Navigation Corporation, and Waterman Steamship Corporation.

This cause having come on for trial, on the pleadings and the evidence of respective parties, and due deliberation having been had, the Court now makes the following findings of fact and conclusions of law:

Findings of Fact

1.

On August 21, 1944, respondent Flota received on board the Steamship Rio Iguazu, 524 bales of jerked beef, and in return therefor issued its bill of lading under which the beef was to be carried from Buenos Aires, Argentina, to New Orleans, "in transit to San Juan, Puerto Rico". The bill of lading provided for delivery to the order of Royal Bank of Canada, "notify Waterman Steamship Corporation". It contained no exceptions, and acknowledged receipt of the consignment in apparent good order and condition.¹

2.

The Rio Iguazu sailed from Buenos Aires for New Orleans on or about August 22, 1944, and arrived at New Orleans on or about September 22, 1944. The shipment was stowed in the No. 1 hold of the Rio Iguazu in the square of the hatch, together with 265 other bales of jerked beef on top of bales of wool and hides.

3.

Subsequent to issuance of said bill of lading by Flota, and prior to arrival of the Steamship Rio Iguazu in New Orleans, libelant paid $17,812.01 for the original negotiable Flota bill of lading, which document was evidence of ownership of the consignment described therein. On September 13, 1944, libelant delivered the Flota bill of lading to Waterman Steamship Corporation in order that Waterman could obtain delivery of the consignment at New Orleans. Waterman thereafter delivered said bill to Flota's agent at New Orleans in return for delivery of the consignment.

4.

Upon arrival of the Rio Iguazu in New Orleans, James A. Laing, Marine Surveyor, acting for Flota, boarded the Rio Iguazu and made a survey of her cargo aboard the vessel, and also subsequently on the wharf after discharge. Laing's survey was not made because of known or suspected damage, but such a survey was standard operating procedure of Flota. Laing visually inspected the exterior of the bales of jerked beef, and found them damp and discolored by contents and stained with grease from contents. However, Laing considered this the usual condition and appearance of jerked beef, based on his prior experience, and was of the opinion that the shipment was in apparent good order and condition. Laing did not inspect and does not know the actual condition of the interior of any of the bales of beef, and could not have done so without breaking the covering.

5.

There is no evidence that at the time of discharge from the Rio Iguazu the shipment was in a damaged condition.

6.

After discharge from the Rio Iguazu, the shipment was delivered on September 25, 1944, by Strachan Shipping Company, agent for Flota, to W. L. Richeson & Sons, Inc., for the purpose of moving the shipment from the wharf of Strachan Shipping Company to the wharf of Waterman. Waterman, acting as agent for libelant, had engaged W. L. Richeson & Sons, Inc., but at the expense of libelant, to receive the goods and to transfer them from Strachan's wharf to that of Waterman.² Delivery receipts obtained by Strachan Shipping Company to W. L. Richeson & Sons, Inc., show "all bags stained".

7.

W. L. Richeson & Sons, Inc., took possession of the shipment and delivered it to Waterman on September 26, 1944. On the delivery receipt obtained by W. L. Richeson & Sons, Inc. and the dock receipts issued by Waterman, the only exception noted was "1 bale T/R Gross Wgt 42#". Waterman's bill of lading, which was issued on September 27, 1944, was straight and non-negotiable. It contained only the one exception "1 bale T/R Gross Wgt 42#".

8.

Staining, discoloration, and greasiness of the bales of beef is the usual appearance of the bales of jerked beef, and do not indicate damage to the contents of the bales. Such conditions occur in part at least as a result of the contents of the bales exuding through the containers. Libelant became the owner of the shipment prior to issuance of Waterman's bill of lading, which was straight and non-negotiable, and libelant does not contend that the omission from Waterman's bill of lading with respect to the exterior of the bales has prejudiced or damaged libelant in any way.

9.

(a) After delivery of the shipment to Waterman on September 26, 1944, said shipment was loaded aboard the SS Unaco in the No. 1 lower hold, and the SS Unaco sailed for San Juan, Puerto Rico, via Mobile, on September 27, 1944.

(b) It had rained on September 25th, and, because the stevedores had left the Unaco's hatches, including No. 1, uncovered, rain entered the No. 1 hold for a period of about 10 minutes.

10.

Libelant did not obtain the inspection of the interior of any of the bales of beef after discharge from the Rio Iguazu and prior to delivery to Waterman in New Orleans, and libelant admittedly does not know the actual condition of the shipment at the time of delivery to Waterman.

11.

The Unaco was a dry cargo vessel built in 1918, with engines amidship. She had a raised forecastle and a raised poop. There were bulwarks about 4 feet in height between the after end of the forecastle and amidship accommodations.

12.

There were four ventilators to each hold of the four holds of the vessel. There was a single wooden 'tweendeck in each hold, and the two forward ventilators went into the lower hold and the two after ones to the 'tweendeck. These ventilators were of the cowl type and each set of two ventilators was in a line athwart the vessel, about 5 feet outboard of the keel line.

13.

The holds of the Unaco were ventilated by trimming the weather vents away from the wind and the lee vents into the wind to circulate air through the holds. If there was rain or a heavy sea running or if the weather was cloudy and damp, the vents were backed to the wind. According to the log of the Unaco, wind velocity on the voyage from New Orleans to San Juan at no time exceeded force 5 on the Beaufort scale which is approximately 17 to 21 knots.

14.

The shipment of jerked beef was stowed in the after end of the No. 1 lower hold of the Unaco. Stowed also in this hold were lumber, bags of animal feed and other general dry cargo. There is no source of heat in said hold and there was testimony that the No. 1 lower hold is one of the coolest stowage spaces in the vessel. The beef was situated on top of a shipment of lumber, approximately 11 to 12 feet from the bottom of the hold, athwart the vessel, beneath the coaming in the after end of the hold. There was no cargo stowed on top of the beef. There was a floor of dunnage under the beef, and there were permanent sweat battens at the sides of the vessel and at the after bulkhead of the No. 1 lower hold. The place and manner of stowage permitted the cargo to be ventilated.

15.

The Unaco sailed from New Orleans, Louisiana, on September 27, 1944, for Mobile, Alabama, arriving on September 28. The Unaco departed Mobile on October 4, 1944, for San Juan, and arrived there on October 13, 1944.

16.

Discharge operations were carried on until October 20, 1944. The date of discharge of the beef was probably October 19, 1944.

17.

After discharge of the shipment from the Unaco and while on the wharf, an inspection was made by Dr. Lowell R. Barnes, Assistant to the Inspector in Charge, and Mr. James O. Fly, Inspector, Bureau of Animal Industry, Department of Agriculture of the United States at San Juan. The shipment was also inspected and observed subsequently by Dr. Barnes and Mr. Fly at the Customs Warehouse in San Juan where it was taken for reconditioning. Dr. Barnes and Mr. Fly, whose testimony was taken by the Unaco interests, found portions of the shipment were sour and unfit for human consumption.

18.

Dr. Barnes and Mr. Fly testified that there were no indications from the external or apparent condition of the bales of beef that there was any damage. The cause of damage was sourness, which was detected by cutting the meat and then smelling it. The...