Flota Mercante Grancolombiana v. Fla. Const. Equip.
| Citation | 608 F. Supp. 1515 |
| Decision Date | 15 May 1985 |
| Docket Number | Civ. A. No. 81-1349. |
| Parties | FLOTA MERCANTE GRANCOLOMBIANA, S.A. and E.S. Binnings, Inc., Plaintiffs, v. FLORIDA CONSTRUCTION EQUIPMENT, INC. and Alonso Shipping Company, Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
Michael W. Lodwick, New Orleans, La., for plaintiffs.
Roger H. Fellom, New Orleans, La., for defendant Alonso Shipping Co.
Marvin Lewis, Miami, Fla., for defendant Florida Const. Equipment, Inc.
In this case plaintiffs Flota Mercante Grancolombiana, S.A. Granco, an ocean carrier domiciled in Colombia, S.A., and E.S. Binnings, Inc. Binnings, a Louisiana corporation, Granco's vessel agent in the Port of New Orleans, New Orleans, Louisiana, and Granco's subrogee and assignee, seek to recover alleged unpaid freight charges for Granco's carriage of two used, disassembled asphalt plants from the Port of New Orleans to the Port of Barranquilla, Colombia aboard Granco's M/V CIUDAD DE PEREIRA in June 1980. The defendants are Florida Construction Equipment, Inc., Florida, a Florida corporation, the shipper, and Alonso Shipping Company Alonso, a Louisiana corporation, Florida's freight forwarder. The freight charges appearing on the bills of lading for the two asphalt plants, a total of $103,621.93, were paid by or on behalf of the consignees in Colombia upon release of the cargo to them. The plaintiffs seek to recover from the defendants an additional sum of $155,080.71 demanded of the consignees and which they refused to pay. This additional sum is based on alleged corrected cubic measurements of the asphalt plants. The plaintiffs also seek to recover the sum of $1,852.88, an expense of Granco in causing a survey of the cargo after discharge in Barranquilla, plus attorney's fees and costs.
The defendant shipper, Florida, and the defendant freight forwarder, Alonso, deny any liability for the alleged additional freight and survey charges claimed. Florida filed a cross-claim against Alonso. Alonso filed a cross-claim against Florida and a counterclaim against Binnings.
The Court has jurisdiction under 28 U.S.C. § 1333 and 28 U.S.C. § 1331.
In February 1980 Florida arranged for the purchase of two used, disassembled asphalt plants in Amite, Louisiana for two companies in Bogota, Colombia, Sociedad de Ingenieria y Construccion Sico Ltda. SICO and Pavimentos Vias e Ingenieria Paving Ltda. PVIP. Luis E. Varela, president of Florida, went to Amite with the Colombian companies' representative, Senor Raphael Forero, to examine the two plants. Forero approved the plants for purchase and Varela made an agreement with the owner, Stanley Anderson, for Florida's purchase of them and gave a deposit, the balance to be paid within 30 days. The agreement between Varela and Forero was that the sale from Florida to Forero's companies would be "FOB New Orleans", and the plants would be shipped to Barranquilla, Colombia "Freight Collect."
Varela then commenced arrangements for shipment of the two plants to Colombia. He contacted by telephone Admiral Carlos Vasquez in Miami, Florida, the representative of Granco in Miami, and informed him of the purchase agreement with Forero and proposed the carriage of the asphalt plants by Granco to Colombia. He requested Vasquez to send someone to Amite to obtain information on which cost of the freight could be ascertained for the benefit of the negotiations between Florida and Forero. He further informed Vasquez that Granco should send two containers to Amite for the shipment of the loose parts of the plants. Vasquez told him that, since the shipment would originate in New Orleans, Louisiana, Granco's representative in New Orleans, Ignacio Restrepo, would be handling the shipment and that he should deal directly with Restrepo.
Information as to the cost of the freight was given to Varela which was acceptable to him and Forero in their negotiations, a total purchase price of $120,000 for the two plants was agreed upon, a container for the small parts was dispatched to Amite, and Varela retained Alonso as Florida's freight forwarder for the shipment.1 Alonso notified Binnings, Granco's vessel agent, of the shipment of asphalt plants and of their expected arrival at the wharf in New Orleans sometime in May. By the end of March the Colombian buyers of the two asphalt plants had established irrevocable letters of credit with Banco Mercantil, Bogota, Colombia in favor of Florida for the price of each plant. Florida was advised of the establishment of these irrevocable letters of credit by export credit advices issued by Flagship National Bank of Miami.
Alonso as freight forwarder for the shipper Florida had the duty to prepare all of the documentation required for the shipment and to deliver it to Granco's vessel agent Binnings. Binnings provided to Alonso Granco's document forms necessary to ship the cargo in compliance with the tariff of the East Coast Colombia Conference of which Granco is a member.2 Generally Binnings performs all of the functions that Granco would perform in the Port of New Orleans, if Granco operated there without a vessel agent. It receives from freight forwarders the prepared bills of lading, dock receipts and other paperwork necessary for the shipment of cargo from one port to another; it maintains and operates the First Street Wharf, a preferential berth assignment from the Board of Commissioners of New Orleans; it arranges for or actually performs stevedoring services, including the loading and stowing of cargo aboard vessels; it receives and stores cargo for loading aboard vessels and receives and stores cargo discharged from vessels; it calculates freight due on shipments of cargo, and collects freight due from shippers and freight forwarders.
In the normal handling of a shipment of cargo a discrepancy of the magnitude claimed in this case between the freight charges in the bills of lading and the calculations of freight subsequently made does not occur. No one involved with the shipment of these two asphalt plants had ever known of such a large discrepancy. Because of the manner in which the documentation was handled, the discrepancy was not discovered until the asphalt plants were loaded aboard ship.
Commencing the first week in May the first of 25 shipments of the asphalt plants was delivered by truck to the First Street Wharf without any delivery papers. Normally a freight forwarder sends a dock receipt before delivery of the cargo, or the cargo delivered to the dock is accompanied by a dock receipt, describing the cargo and giving its weight and measurements. Binnings' personnel on the dock accepted the cargo only after clearing the matter with the booking clerk in the main office, and then misidentified the shipment as used sugar mill machinery. The remaining truckloads delivered through May 30 also were not accompanied by dock receipts or by any other delivery papers.
As the machinery was delivered it was measured by clerks belonging to the International Longshoreman's Association and assigned to work for Binnings and stored on the First Street wharf. The clerk's linear measurements were given to the desk clerk and he kept them in a file on the dock. According to Binnings' Director of Stevedore Operations, Donald H. Harrell, the purpose of measurement of the cargo by the ILA clerks was to evaluate the size of the cargo for its loading aboard ship.
On May 16 the Binnings' office received from Alonso two dock receipts, one for each of the asphalt plants. The disassembled pieces were described and a number was given to each. The information as to gross weight and measurement which the freight forwarder should have included was lacking.3 Binnings allowed this irregular practice to be followed in this shipment as an accommodation to Alonso, whom it had known and done business with for many years, because it knew Alonso had little information about the plants which were being dismantled and delivered piecemeal.
Alonso obtained the information as to the parts of the asphalt plants listed on the two dock receipts from packing lists mailed to it about the middle of May by an employee of Florida, Mario Estrada, after Alonso informed Estrada that it needed packing lists for the two plants. Florida sent Estrada to Amite Louisiana to make a complete inventory and prepare packing lists with a number given to each part so that no parts of the plants would be lost. The packing lists Estrada prepared showing the name of each part and the number given to it are in evidence. Estrada is no longer an employee of Florida, cannot be located, and did not testify at the trial.
Mary Mire, an employee of Alonso in New Orleans, prepared and forwarded to the Binnings' office a short form bill of lading for each asphalt plant.4 Having only Estrada's packing lists, she lacked information as to weight and measurement of the cargo which Alonso as freight forwarder was obligated to supply on behalf of the shipper Florida to the carrier Granco. She called Estrada in Amite and informed him of her need for weights and measurements to prepare the bills of lading. By telephone he gave weight and measurements in cubic feet for each part listed on the packing lists, and Mire penned by hand that information on copies of the list. She then tallied the figures given to her by Estrada for each plant and thus obtained the figures she entered on the bills of lading. Bill of Lading # ZF-23 for SICO's asphalt plant showed a cubic measurement of 11,168 feet; Bill of Lading # ZF-24 for PVIP's asphalt plant showed 14,080 cubic feet, for a total of 25,248 cubic feet for the two plants.5
The consignee named in each bill of lading was the Banco Mercantil in Bogota, Colombia, and the notify party was the corporate purchaser of the plant in Bogota. On each bill of lading Mary Mire typed "FREIGHT COLLECT".6
On June 3 Binnings commenced loading the M/V CIUDAD DE PEREIRA, and when it was...
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