Flota Mercante del Estado v. Orient Ins. Co., 13933.
| Decision Date | 31 July 1952 |
| Docket Number | No. 13933.,13933. |
| Citation | 198 F.2d 740 |
| Parties | FLOTA MERCANTE DEL ESTADO v. ORIENT INS. CO. THE RIO PRIMERO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leon Sarpy, New Orleans, La., for appellant.
Malcolm W. Monroe, Eberhardt P. Deutsch, New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.
This suit in admiralty, instituted by Orient Insurance Company, as subrogee of Sidney Ross Company, Inc., against Flota Mercante del Estado, a department of the Government of the Republic of Argentina, as owner and operator of the Steamship Rio Primero, involves a claim of damages to a shipment of acetyl salicylic acid, hereinafter referred to by its common appellation, aspirin. Other merchandise included in the shipment is not involved in this litigation.
The evidence, submitted entirely in the form of depositions and exhibits, disclosed that the aspirin, packed in thick paper bags which were enclosed in wooden barrels, was delivered to Flota Mercante del Estado at the Port of New Orleans on or about February 24, 1943, consigned to the order of Cia Argentina Sidney Ross, Inc., S. A., Buenos Aires, Argentina. The cargo was accepted by Flota Mercante del Estado for shipment aboard the Rio Primero, for which it issued its bill of lading acknowledging that the "goods or packages said to contain goods hereinafter mentioned were in apparent good order and condition." Prior to the acceptance of the shipment at New Orleans, it was necessary for 29 of the barrels to be recoopered. The shipper, Sidney Ross Company, Inc., executed a letter of guaranty in which it agreed to hold the carrier harmless as to any loss or damage with respect to these specific barrels.
The vessel arrived at the Port of Buenos Aires on April 4, 1943. The shipment in question was landed and received into the local customs warehouse on dates from April 6 to 16, 1943. On April 7, 1943, the consignee requested that the firm of F. B. O'Grady & Company, Buenos Aires, Argentina, make a "survey and report upon alleged loss of contents and/or damage" to a part of the shipment. Pursuant to this request a survey was made on April 8th, and 16th, 1943, at the customs warehouse, and on May 8th, 1943, at the consignee's warehouse, where the merchandise was received on May 3rd, 1943. The carrier was notified of the loss by letter dated April 20, 1943, but, in a letter dated April 30, 1943, replied denying liability.
The "Certificate of Survey" submitted by F. B. O'Grady & Company disclosed that 15 barrels of aspirin, out of a total of 198 contained in the shipment, were broken with a loss of contents, and the aspirin which remained in 12 of these barrels "were damaged and/or wetted." The shortage was attributed, in the opinion of the surveyor, to loss through breakages in the barrels and the water damage attributed to "contact with water which entered into the barrels somewhere in transit." Neville Challoner, who testified by deposition, identified the "Certificate of survey" as being authentic and ratified its contents. He testified that he acted as inspector for the firm of F. B. O'Grady & Company in reference to the aspirin and that "in the deposits of the Customs House the barrels left signs of dampness on the ground."
There was testimony explaining that the term "in transit", as used in the Certificate, referred to the period expiring from the time the shipment left the deposits of the exporter until it arrived at the deposits of the consignee. Also, that the barrels used by Sidney Ross Company, Inc., were of good quality, although some of them had been recoopered. The damaged product could not be used in the condition in which it was received; however, it was reprocessed at a cost of $4,878.75, Argentina paper. During the course of the reprocessing, there was an additional loss of quantity. Only two of the barrels covered by the letter of guaranty issued by Sidney Ross Company, Inc., were damaged. These sustained a loss of contents, but no water damage.
Based upon a finding that the merchandise was received by the carrier in apparent good order and condition and delivered by it to the consignee in a damaged condition, the trial Court awarded judgment to appellee.1 Appellant prosecutes this appeal from that judgment, contending that the evidence, as a matter of law and fact, fails to support it because: (1) there is no evidence that the aspirin was in actual good order and condition when received by the carrier; (2)...
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