Inter-Ocean (Free Zone) v. Manaure Lines, Inc.

• Decision Date: 18 April 1985
• Docket Number: No. 83-1597-Civ-Aronovitz.,83-1597-Civ-Aronovitz.
• Citation: 615 F. Supp. 710
• Parties: INTER-OCEAN (FREE ZONE), INC. f/u/b/o Certain Underwriters at Lloyd's, London, Plaintiffs, v. MANAURE LINES, INC., "MANANA V", in rem, Strachan Shipping Company, Inc., and Metropolitan Dade County Seaport Department, Defendants.
• Court: U.S. District Court — Southern District of Florida

615 F. Supp. 710

INTER-OCEAN (FREE ZONE), INC. f/u/b/o Certain Underwriters at Lloyd's, London, Plaintiffs, v. MANAURE LINES, INC., "MANANA V", in rem, Strachan Shipping Company, Inc., and Metropolitan Dade County Seaport Department, Defendants.

No. 83-1597-Civ-Aronovitz.

United States District Court, S.D. Florida, Miami Division.

April 18, 1985.

Steven E. Goldman, Standard, Weisberg, Heckerling & Rosow, P.C., New York City, for plaintiff Inter-Ocean (Free Zone), Inc. Certain Underwriters at Lloyd's, London.

David R. Canning, Mitchell, Harris, Canning & Murray, Miami, Fla., for Strachan Shipping Co., Inc.

James A. Jurkowski, Asst. County Atty., Miami, Fla., for Metropolitan Dade County Seaport Dept.

MEMORANDUM OPINION GRANTING PLAINTIFF'S AND DENYING DEFENDANT STRACHAN'S CROSS MOTIONS FOR SUMMARY JUDGMENT

ARONOVITZ, District Judge.

THIS CAUSE came before the Court upon the parties' various cross motions for summary judgment. These motions include:

1. Plaintiff's Motion for Summary Judgment on Liability (D.N. 61);

2. Defendant STRACHAN's Motion for Partial Summary Judgment on Liability (D.N. 71);

3. Plaintiff's Cross Motion for Summary Judgment as to Value (D.N. 72) and;

4. Defendant STRACHAN's Cross Motion for Summary Judgment on Liability (D.N. 87).

The Court held a hearing regarding these motions and the issues raised therein on November 26, 1984. Counsel for all parties appeared and presented their views on all issues. Thereafter, the Court invited counsel for all parties to submit supplemental memoranda addressing certain issues raised at the hearing. The parties filed such supplemental memoranda. The Court has heard the argument of counsel and has carefully considered and reviewed the various motions, the supporting, opposing and supplemental memoranda filed thereto, the pertinent portions of the record, the applicable law and being otherwise fully advised in the premises, it is thereupon

ORDERED AND ADJUDGED as follows:

1. Plaintiff's Motion for Summary Judgment on Liability (D.N. 61) be, and the same is, hereby GRANTED for the reasons set forth hereinbelow.

2. Defendant STRACHAN's Motion for Partial Summary Judgment on Liability (D.N. 71) be, and the same is, hereby DENIED for the reasons set forth hereinbelow.

3. Plaintiff's Cross Motion for Summary Judgment as to Value (D.N. 72) be, and the same is, hereby GRANTED for the reasons set forth hereinbelow.

4. Defendant STRACHAN's Cross Motion for Summary Judgment on Liability (D.N. 87) be, and the same is, hereby DENIED for the reasons set forth hereinbelow.

Background

This is a case in which Plaintiff INTEROCEAN (FREE ZONE), INC. f/u/b/o CERTAIN UNDERWRITERS at LLOYD'S, LONDON ("INTEROCEAN") seeks damages of $144,656.00 for the unexplained loss or disappearance of a containerized cargo consisting of 600 color television sets and eleven cartons of audio tapes which were to be carried by sea on the Manaure Lines Inc. vessel "MANANA V" from the Port of Miami to LaGuaira, Venezuela, in June of 1982. The container and its full contents were safely delivered by Plaintiff's trucker into the possession and custody of the ocean carrier's stevedore, Defendant STRACHAN SHIPPING COMPANY, INC. ("STRACHAN"), at the Port of Miami. However, subsequent to the container's delivery, when one of STRACHAN's employees was dispatched to retrieve the container and load it aboard the ship, the container and its contents were discovered to be missing from the STRACHAN lot.

After the close of discovery, and after the submission of a Joint Pretrial Stipulation, Plaintiff INTER-OCEAN and Defendant STRACHAN agreed that the cause was appropriate for disposition by cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court agrees and finds that there are no genuine issues of material fact remaining in dispute. Accordingly, the Court awards summary judgment to Plaintiff both as to Defendant STRACHAN's liability and the stated quantum of damages.

The material facts showing that Plaintiff is entitled to summary judgment on both the issues of liability and damages are contained in the Joint Pretrial Stipulation, STRACHAN's answers to interrogatories, the depositions of Defendant's South Florida Operations Manager, John Williams and its Manager of Stevedoring Operations, Mats Erlandson, and in the documents appended by Plaintiff to its summary judgment motions. These documents include Defendant STRACHAN's Dock Receipt Number 41691, Port of Miami Seaport Scale Receipt Number 075514, Manaure Lines' Bill of Lading, the deposition testimony of Plaintiff's vice president and the commercial invoice for Plaintiff's cargo.

The Issue of Liability

It is clear from an examination of the following undisputed facts that entry of summary judgment for Plaintiff on the issue of liability is mandated. After having been loaded at Plaintiff's warehouse in Miami, Container Number XSRZ694013 was transported by truck to the Port of Miami on June 30, 1982. The cargo was booked to go aboard Manaure Lines' vessel the "MANANA V" and was therefore delivered by Plaintiff's trucker to that carrier's stevedore at the Port of Miami in June of 1982.

Prior to the container's arrival, a Manaure Line bill of lading had been issued for the cargo, which described it in the following terms:

40' HOUSE TO HOUSE TRAILER S.T.C. 611 ctns "ELECTRONIC EQUIPMENT."

Arriving at the entrance to the Port of Miami at approximately 12:30 p.m., Plaintiff's trucker stopped at the gatehouse or checkpoint on Dodge Island which is maintained by the Metropolitan Dade County Seaport Department and which is staffed by the Seaport Department's security personnel. In accordance with the Port of Miami's security procedures, Plaintiff's trucker duly presented its bill of lading, obtained a gate pass and proceeded on to have the container weighed at the seaport scale which is the property of and maintained by the Seaport Department.

At the seaport scale, Plaintiff's trucker had the container weighed and, as evidenced by the weight certificate, the official weight of the container was 50,200 pounds. The time noted on the weight certificate was 1:12 p.m.

The fully loaded container was then delivered to the possession of STRACHAN at the entrance to its yard or facility located on Lummus Island, Port of Miami. Receiving and delivery clerks who are members of the International Longshoreman's Association ("ILA"), were employed by STRACHAN to accept delivery of such containerized cargo preparatory to being loaded aboard ship. One of these receiving and delivery clerks furnished a STRACHAN receipt (also referred to as a trailer interchange report) to Plaintiff's trucker, who thereupon parked the container at a spot designated on the face of the dock receipt as space E-32, unhitched the container and drove off both Lummus Island and Dodge Island, and away from the Port of Miami.

When Plaintiff's trucker drove away, the fully loaded container was left in the possession of Defendant STRACHAN. Sometime later on that same afternoon of June 30, 1982, STRACHAN attempted to retrieve Plaintiff's container for loading aboard the "MANANA V", but neither the container nor its contents were anywhere to be found. Several days later, the empty container was found in downtown Miami, but Plaintiff's cargo was never found or accounted for.

There was no evidence in the record, either documentary or from a witness, showing an authorized removal of the container. There is ample circumstantial evidence in the record indicating that a theft occurred, among other bases for Plaintiff's asserted claims and legal grounds for recovery as hereinafter noted. STRACHAN has admitted that it is not in possession of a pick-up order (or trucker's bill of lading) showing an authorized removal of the container and Metropolitan Dade County's Port Security has no copy of the type of authorized gate pass which is normally required in order for a truck to be allowed to exit from the Port of Miami when hooked up to a container.

Counsel for STRACHAN has, however, maintained that there existed a conspiracy to steal Plaintiff's container from Defendant's cargo depot, and has maintained that the Federal Bureau of Investigation in Miami is conducting an investigation into this occurrence. Counsel for STRACHAN has further contended that the FBI is in possession of a forged gate pass and may have narrowed its suspicions to center upon a past employee of the Seaport's Security Department. However, no document or affidavit of any kind has been produced by counsel for Defendant STRACHAN.

In June of 1982, the area on Lummus Island which STRACHAN held pursuant to a lease from Dade County was fenced on three of its four sides with the side facing the water (Biscayne Bay) left unfenced and unprotected against authorized persons seeking to gain entry to Defendant's container depot. Defendant's Manager of Stevedoring Operations, Mats Erlandson testified that, to his knowledge, no other stevedore operating at the Port of Miami as of June 1982 had neglected to install fencing on all four sides of their respective leased premises.

Moreover, while STRACHAN did maintain a gate capable of being closed and locked at the front entrance to its Lummus Island depot, it was STRACHAN's practice to keep this gate wide open during the course of normal daytime business hours, with no security guard posted at the gate. While the ILA receiving and delivery clerks were supposed to be on duty at this main gate, neither they nor any other STRACHAN personnel kept a log of incoming or outgoing containers.

These same ILA receiving and delivery clerks were not employed for purposes of providing security or protection against theft of containerized cargo kept at Defendant's depot, although STRACHAN's South Florida Operations Manager, John Williams did testify at his deposition that these receiving and delivery clerks would be obligated to at least telephone port security in...