Levatino Company v. American President Lines, Ltd.

• Decision Date: 05 November 1964
• Citation: 233 F. Supp. 697,1964 AMC 1247
• Parties: LEVATINO COMPANY, Inc., Libellant, v. AMERICAN PRESIDENT LINES, LTD., and S.S. PRESIDENT HAYES, her engines, etc., Respondents.
• Court: U.S. District Court — Southern District of New York

233 F. Supp. 697

1964 AMC 1247

LEVATINO COMPANY, Inc., Libellant, v. AMERICAN PRESIDENT LINES, LTD., and S.S. PRESIDENT HAYES, her engines, etc., Respondents.

United States District Court S. D. New York.

May 12, 1964.

Decree Affirmed November 5, 1964.

Bigham, Englar, Jones & Houston, New York City, for libellant; F. Herbert Prem, New York City, of counsel.

Symmers, Fish & Warner, New York City, for respondents; William Warner, New York City, of counsel.

Decree Affirmed November 5, 1964. See 337 F.2d 729.

CASHIN, District Judge.

Libellant instituted this action in admiralty for short delivery and damage by freezing to two consignments, totaling 1,800 bags of fresh chestnuts, shipped on board respondent's vessel, S.S. PRESIDENT HAYES, at the ports of Naples and Leghorn in November 1960 for carriage to New York. Libellant's claim for short delivery, which involved 81 bags of chestnuts, has not been disputed by respondent, however, so that aspect of the case is not in issue.

FINDINGS OF FACT

1. In November 1960, the respondent entered into a contract of carriage to transport 1,800 bags of Italian chestnuts to New York on board the respondent's steamship "PRESIDENT HAYES". On November 22, 1960, Vincenzo Ingino delivered to respondent and the S.S. PRESIDENT HAYES, at the port of Naples, 800 bags of fresh chestnuts, consigned to shipper's order at New York under Bill of Lading #36. On November 30, 1960, the same shipper delivered to respondent and the S.S. PRESIDENT HAYES, at the port of Leghorn, 1000 bags of chestnuts consigned to libellant's order, at New York, under Bill of Lading #4. Respondent issued clean bills of lading for the said shipments.

2. The chestnuts had passed all tests and had been certified by Italian Government inspectors as being of good quality, sound and free from infestation. The chestnuts were not damaged by freezing prior to shipment. The official weather report of the Italian Government shows that no freezing temperatures existed in Italy prior to delivery of the chestnuts to the respondent's vessel in November, the month of shipment, which was confirmed by the ship's Chief Officer.

3. The chestnuts were in sound condition upon delivery to respondent's ship. The two consignments of chestnuts in question were stowed in the upper and lower reefer flats of the vessel's number five hold, lower 'tween deck and were carried from Italy to New York in refrigeration compartments of the PRESIDENT HAYES at temperatures of approximately 35° F. There is no evidence that any damage was sustained by the chestnuts during the course of the voyage.

4. The S.S. PRESIDENT HAYES berthed at respondent's Pier 9, Jersey City, on December 11, 1960. Discharge was commenced at about 10 or 10:30 P.M. on December 11, and continued until 5 A.M. on December 12, during which period 658 bags of libellant's chestnuts were transferred to the pier and covered with tarpaulins. The lower reefer flat of the PRESIDENT HAYES, which contained the remaining bags of chestnuts involved here, had not been opened for discharge.

5. A severe snowstorm occurred beginning on December 11, depositing a snowfall in the New York Metropolitan area of 17 inches. The storm began shortly after 1 P.M. on the 11th. By 7 P.M. there was one inch of snow on the ground; by midnight there were three inches of snow on the ground; by 6:50 on the morning of the 12th there were 12 inches; and by 11:50 A.M. there were 17 inches of snow on the ground, with slight flurries thereafter.

6. The United States Weather Bureau maintained records of temperature at the Battery during the times relevant hereto. These hourly temperatures appear in Appendix A. There were no material differences between the temperatures shown in Appendix A and those prevailing in Jersey City in the vicinity of respondent's Pier 9.

7. Inside Pier 9, pier personnel ascertained temperatures with one thermometer serving each section of 280 feet by 150 feet. The hourly temperatures which were recorded inside the pier, for the pier sections and times relevant hereto, appear in Appendix B.

8. Chestnuts freeze at temperatures of 20° F to 28° F.

9. Pier 9 was unheated. Further, no emergency heating appliances were installed thereon at any time during the extremely cold weather libellant's chestnuts remained on the pier. There was a lack of proof that a custom exists within the Port of New York not to provide heating in piers for cargo susceptible to freezing. Rather, libellant's witness, Fetherston, Director of Port Operations for the City of New York, testified that there are at least twenty piers within the Port of New York whose whole storage areas, or a portion thereof, were heated for the storage of perishable products.

10. There was no discharge on December 12 after 5 A.M. and throughout December 13 because of the heavy snowstorm. The records indicate libellant took delivery of "667" bags of chestnuts ex Bill of Lading #4 on December 14. The remaining bags of chestnuts ex Bill of Lading #4 and Bill of Lading #36 were discharged during December 14, with discharge of all chestnuts being completed by 4 A.M. on December 15. Upon the discharge of the chestnuts from the PRESIDENT HAYES, they were placed in the lower level of Pier 9, in sections 1 and 2. Most of the chestnuts were located in Section 1, but a smaller quantity was placed in Section 2. The libellant took delivery of all the chestnuts ex Bill of Lading #36 and 141 bags ex Bill of Lading #4 on December 15. On December 16 libellant took its final delivery of these chestnuts, 172 bags ex Bill of Lading #4.

11. The usage in the chestnut trade is that the cargo be cleared through customs in advance. This was done in the instant case. It is also the custom in the trade that the chestnuts be picked up as soon as possible after discharge, usually within 24 to 48 hours after the ship arrives. As a result of the snowstorm, however, libellant's trucks could not operate through the snowdrifts on December 12 and 13 to remove the chestnuts from the pier. On December 14, the first day it was possible under existing traffic conditions to operate trucks, libellant removed 667 bags from the pier. The remaining bags of libellant's two shipments were removed from the pier on December 15, while respondent's ship was still discharging, and on December 16, one day after the discharge was finished. Libellant acted expeditiously in taking delivery of the cargo.

12. As a result of the low temperatures which prevailed while the chestnuts were on respondent's pier (see Appendix A and Appendix B), extensive freezing damage occurred. Libellant's chestnuts were inspected on respondent's pier by a Mr. Stein, a cargo surveyor having 20 years experience covering 40 to 50 shipments of chestnuts a year which included one or two frozen chestnut shipments a year. He was on the pier on December 15 and 16, 1960. The bags of chestnuts were in pallets, placed from one to seven bags high on a pallet. Some of the bags were covered with tarpaulins, but some were not. The wind, however, could blow under the tarpaulins. Mr. Stein made a written record that some of the pier doors were open. He inspected quite a few bags and observed that the chestnuts had a color much darker than the proper color. He cut open some of the chestnuts and noted that the pulp was rubbery and dried out, lacking freshness. He opened a sufficient number of bags to be satisfied as to the condition of the entire shipment under Bill of Lading #4. He took pulp temperatures which registered 26 to 32° F. He found the majority of the chestnuts to be frozen, averaging 85 to 90% of the shipment. In making his inspections he took some bags from the center of the pallets as well as the outside bags and, in doing so, he spilled out the contents and examined chestnuts from all parts of the bag. From Mr. Stein's testimony, as well as from the testimony of other witnesses who inspected the chestnuts, it is clear that the freezing damage to libellant's chestnuts occurred while they were in respondent's custody on Pier 9.

13. Pier 9 was unfit for the delivery to or storage on of libellant's chestnuts under the temperature conditions prevailing during the period of storage. The chestnuts became frozen due to the unfitness of the pier, as well as to respondent's failure to provide temporary heating devices during the period of storage.

14. Had Pier 9 been equipped with permanent or even temporary heating devices, properly operated, the chestnuts could have remained thereon throughout their period of storage without becoming frozen.

15. There was some evidence submitted by respondent to the effect that freezing does not damage chestnuts. In particular, Mr. Woodruff, Chairman of the Food Processing Division, Georgia Experiment Station, testified that there is a commercial practice of freezing chestnuts for public sale. During the course of his testimony there was admitted into evidence two bags of chestnuts on which he had conducted his experiments. After giving full consideration to this testimony, however, the court is convinced that his testimony must be rejected since there was considerably more convincing and credible testimony by libellant's witnesses, who were merchants with lengthy practical experience, that freezing and thawing of chestnuts constitutes a hazard and results in damage to the product.

16. There was also much credible evidence by libellant's witnesses that it would be impractical and uneconomical to sort out or recondition frozen chestnuts, and that sale at public auction is the customary way of disposing of chestnuts in that condition. This practice was followed by the libellant herein. Libellant sold 1,719 bags at public auction at sale prices which were below the prevailing sound market value of chestnuts.

CONCLUSIONS OF LAW

I. The court has admiralty jurisdiction pursuant to 28 U.S.C. § 1333.

II. Both shipments of chestnuts were made by the same consignor, Vincenzo Ingino,...