Highlands Ins. Co. v. Strachan Shipping Co.
| Decision Date | 07 October 1985 |
| Docket Number | No. 84-5993,84-5993 |
| Parties | HIGHLANDS INSURANCE COMPANY as Subrogee, Plaintiff-Appellant, v. STRACHAN SHIPPING COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert W. Blanck, Hayden & Milliken, P.A., John D. Kallen, Miami, Fla., for plaintiff-appellant.
Jack M. Coe, Lee, Schulte, Murphy & Coe, P.A., Miami, Fla., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD *, District Judge.
This action for breach of bailment, breach of warranty to perform in a workmanlike manner, negligence, and breach of a stevedoring contract is brought against a stevedoring firm, Strachan Shipping Co., by an insurer, Highlands Insurance Co., as subrogee for a Miami import firm that ordered 550 mysteriously disappearing color television sets. We AFFIRM the lower court's entry of judgment for Strachan.
In August 1981 a Miami firm, Sunday Imports, ordered 550 color TV sets from General Electric in Portsmouth, VA for resale to a client in Venezuela. Pilot Freight Company picked the sets up at GE, packed them in a container (the "land trailer," # 5572), and took them to its lot at Hollywood, FL where the trailer was emptied.
A day later, Caribbean Transportation picked up a sealed 40-foot "seagoing trailer" (REAZ # 600373) from Pilot Freight and delivered it to Lot 1 at the Port of Miami, a lot assigned to the appellee, Strachan Shipping, a Georgia stevedoring company licensed to operate at the Port. The trailer ostensibly contained the TV sets, but when it was delivered to Lot 1 it was not weighed (the scales were broken) and no official at the lot ever looked into or unpacked the container. Five days later, when Strachan was to load the still-sealed container on a vessel, it was missing--from a compound with a 6 1/2 foot chain link fence and a perpetually guarded gate. Police have not recovered the trailer or the sets.
Since Sunday Imports never received the TV's, it claimed the face amount of its cargo insurance policy from appellant Highlands Insurance. Highlands paid the claim, and then brought this suit as a subrogee of Sunday Imports against Strachan charging breach of bailment, breach of warranty to perform in a workmanlike manner, negligence, and breach of the stevedoring contract. At trial, the lower court found that Highlands did not prove its prima facie case and entered judgment in favor of Strachan. The single issue before us on appeal is whether that ruling was clearly erroneous.
The court below concluded that the plaintiff, Highlands, had the burden of proving by a preponderance of the evidence that the events it alleged actually occurred. Gardner v. Wilkinson, 643 F.2d 1135, 1137 (5th Cir.1981). As a part of this proof, Highlands was required to show by a preponderance of the evidence that the 550 TV sets in question were actually delivered in good order to the bailee Strachan. See Stein Hall & Co., Inc. v. The SS CONCORDIA VIKING, 494 F.2d 287 (2d Cir.1974). We agree with the trial court that Highlands failed to prove this element of its prima facie case.
It is well settled that documentary evidence alone, such as a bill of lading, is insufficient to establish proof of delivery of the contents of a sealed container. Spartus Corp. v. The S.S. Yafo, 590 F.2d 1310, 1319 (5th Cir.1979). See also Pillsbury Co. v. Illinois Central Gulf Railroad, 687 F.2d 241, 244 (8th Cir.1982) (). Direct evidence, such as the testimony of an eyewitness to the loading of the container, is necessary to confirm the contents. Id.
Highlands produced only documentary evidence to prove its case. It marked as exhibits a number of written bills of lading tracing various transfers. The crucial transfer of the sets was that from Pilot to Caribbean Transportation in Hollywood, FL. The only evidence that the 550 TV sets were actually unloaded from the land trailer and loaded into the seagoing trailer in Hollywood is a two-page handwritten "worksheet" which records that someone named "Jim" offloaded the inland trailer when it arrived. There is also an entry on this worksheet that shows a reloading of 19,250 lbs., the weight of the TV shipment. But the document does not identify the number of the trailer so loaded or its contents, nor does it note its sealing. The trial judge admitted this...
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