Master Shipping Agency, Inc. v. M. S. Farida, REDERI-AKTIELBOLAG

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore LUMBARD, WATERMAN and VAN GRAAFEILAND; VAN GRAAFEILAND
Citation571 F.2d 131
PartiesMASTER SHIPPING AGENCY, INC., et al., Plaintiffs, v. M. S. FARIDA, her engines, boilers, etc. and Norton Line, Defendants, Third-Party Plaintiffs. STOCKHOLMSSVEA, Defendant, Third-Party Plaintiff-Appellee, v. COURT CARPENTRY & MARINE CONTRACTORS CO., and International Terminal Operating Co., Defendants, Third-Party Defendants-Appellants and Appellees. ockets 77-7392 and 77-7399.
Docket NumberD,Nos. 368 and 402,REDERI-AKTIELBOLAG
Decision Date28 February 1978

Page 131

571 F.2d 131
MASTER SHIPPING AGENCY, INC., et al., Plaintiffs,
v.
M. S. FARIDA, her engines, boilers, etc. and Norton Line,
Defendants, Third-Party Plaintiffs.
STOCKHOLMS REDERI-AKTIELBOLAG SVEA, Defendant, Third-Party
Plaintiff-Appellee,
v.
COURT CARPENTRY & MARINE CONTRACTORS CO., and International
Terminal Operating Co., Defendants, Third-Party
Defendants-Appellants and Appellees.
Nos. 368 and 402, Dockets 77-7392 and 77-7399.
United States Court of Appeals,
Second Circuit.
Argued Nov. 22, 1977.
Decided Feb. 28, 1978.

Page 132

M. E. DeOrchis, New York City (Chester D. Hooper, Haight, Gardner, Poor & Havens, and Alexander E. Rugani, Kirlin Campbell & Keating, New York City, of counsel), for defendant, third-party plaintiff-appellee, Stockholms Rederi-Aktielbolag Svea.

Robert H. Peterson, New York City (Eli Ellis, Peter J. McHugh, Hill, Betts & Nash, New York City, of counsel), for defendant, third-party defendant-appellant and appellee International Terminal Operating Co., Inc.

William Warner, New York City (Symmers, Fish & Warner, New York City, of counsel), for defendant, third-party defendant-appellant and appellee, Court Carpentry & Marine Contractors Co., Inc.

Before LUMBARD, WATERMAN and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

On February 19, 1969, the M. S. Farida sailed from New York for ports in South America with a cargo which included four heavy tractors. On February 21, the vessel's crew was forced to abandon ship because one of the tractors, weighing about 14.4 tons, had broken loose and punctured a large hole in the ship's hull below the water line. The crew did not learn what had brought the vessel to the verge of sinking until after it had been towed to Norfolk, Virginia and placed in dry dock.

Page 133

These are appeals from judgments awarding damages jointly and severally against International Terminal Operating Co., Inc., the stevedore which loaded the vessel, and Court Carpentry & Marine Contractors Co., Inc., the marine lasher which secured the tractors in place in the Number 2 lower hold. In a consolidated action tried in the Southern District of New York, both the ship and appellants were found liable on cargo's claims for damage, and judgment over was directed against appellants on the ship's cross-claim for indemnification of its liability to cargo and for its own losses.

The liability issues were tried before Judge Bonsal and his factual findings should not be set aside unless clearly erroneous. S. S. Amazonia v. New Jersey Export Marine Carpenters, Inc., 564 F.2d 5, 8 (2d Cir. 1977); Union Carbide & Carbon Corp. v. United States, 200 F.2d 908, 910 (2d Cir. 1953). 1 The district judge's conclusions as to fault are subject to more searching review. See, e. g., Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776-78 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966). However, where, as here, his conclusions were reached by application of the appropriate legal standards to the facts as found, there is no reason to disturb them. Cleary v. United States Lines Co., 411 F.2d 1009, 1010 (2d Cir. 1969); Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72, 75-76 (2d Cir. 1963).

A detailed review of the evidence is unnecessary. Court Carpentry was held at fault because it lashed the fourteen ton tractor to the floor while it was sitting on its flexible rubber tires. The proper practice, according to the ship's experts, would have been to support the tractor on rigid wooden blocks placed under its axles. The district court found, as an additional causative factor, that the wooden bracing around the tractor was inadequate and insecurely fastened in place.

Expert testimony also established that periodic inspections of the stowed tractors were required so that wire lashings, stretched or loosened by the pitching of the ship, could be tightened as needed. International was held at fault because it stowed cargo in front of an entranceway into the Number 2 hold, thus preventing entry into the hold by the ship's crew while the ship was at sea. The district court found that, had the ship's chief officer been able to enter the Number 2 hold when he attempted to do so on February 20, prompt remedial action could have been taken to avert the catastrophe or reduce the loss, "even if it meant heading for port."

The district court concluded that the foregoing defects in stowage made the Farida unseaworthy and that the ship failed to carry its burden of proving that its own fault or neglect did not contribute to the loss. See46 U.S.C. § 1304(2)(q); Nichimen Co. v. M. V. Farland, 462 F.2d 319, 329-30 (2d Cir. 1972). For this reason, the ship was held liable to cargo. However, this did not prevent the ship from recovering over against the stevedore and lasher for breach of their implied warranties of workmanlike performance. "The shipowner's own conduct will preclude it from obtaining indemnity from the stevedore only where it prevented or seriously handicapped the stevedore in his effort to perform his duties." Henry v. A/S Ocean, 512 F.2d 401, 407 (2d Cir. 1975). The district court found that no conduct of this nature took place, and this finding is supported by the evidence.

The district judge held appellants jointly and severally liable because he felt that an apportionment of damages as between them "would be speculative at best." We construe this holding as an equal division of damages, United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 407, 411, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975) 2 for the

Page 134

payment of which appellants are jointly and severally liable and for which a right of contribution exists. See Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 111, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974); The Alabama, 92 U.S. 695, 697-98, 23 L.Ed. 763 (1875); The Gulf Stream, 64 F. 809, 810-11 (2d Cir. 1894). In Getty Oil Co. (Eastern Operations) Inc. v. SS Ponce DeLeon,555 F.2d 328, 333-35 (2d Cir. 1977), we held that apportionment of damages is a factual determination which will not be disturbed on appeal unless clearly erroneous. The trial judge's...

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12 practice notes
  • Armco Chile Prodein, SA v. M/V NORLANDIA, No. 90-1081-Civ-J-20.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 27, 1995
    ...to each of the wrongdoing parties, damages should be assessed in equal proportions. See Master Shipping Agency, Inc. v. M.S. FARIDA, 571 F.2d 131, 133-34 (2d Cir.1978); Maurice Pincoffs Co., 697 F.Supp. This Court, however, is unaware of any cases that hold when a shipper sues a carrier, an......
  • Complaint of Interstate Towing Co., No. 1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 1983
    ...assumes, however, that the court applied correct legal standards in making its determination. Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131, 133 (2d Cir.1978). If the court applied improper legal standards its conclusion may be corrected as a matter of law. United States v. Sing......
  • Duferco S.A. v. Ocean Wide Shipping Corp., No. 99CV2951.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 7, 2000
    ...v. Philipp Bros. Div. of Minerals & Chemicals Philipp Corp., 499 F.2d 745 (2d Cir. 1974) and Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131 (2d Cir.1978) is misplaced for the same 16. In Clyde Commercial, a case decided when it was still common practice for the ship owner to load......
  • Phillips Petroleum Co. v. Stokes Oil Co., Inc., Nos. 87-5444
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 12, 1988
    ...(11th Cir.1983). Each one of these cases involved a claim for personal injuries. Although in Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131, 133 (2d Cir.1978), the Second Circuit once extended the Ryan doctrine into a property damage situation, more recently that circuit applied ......
  • Request a trial to view additional results
12 cases
  • Armco Chile Prodein, SA v. M/V NORLANDIA, No. 90-1081-Civ-J-20.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 27, 1995
    ...to each of the wrongdoing parties, damages should be assessed in equal proportions. See Master Shipping Agency, Inc. v. M.S. FARIDA, 571 F.2d 131, 133-34 (2d Cir.1978); Maurice Pincoffs Co., 697 F.Supp. This Court, however, is unaware of any cases that hold when a shipper sues a carrier, an......
  • Complaint of Interstate Towing Co., No. 1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 1983
    ...assumes, however, that the court applied correct legal standards in making its determination. Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131, 133 (2d Cir.1978). If the court applied improper legal standards its conclusion may be corrected as a matter of law. United States v. Sing......
  • Duferco S.A. v. Ocean Wide Shipping Corp., No. 99CV2951.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 7, 2000
    ...v. Philipp Bros. Div. of Minerals & Chemicals Philipp Corp., 499 F.2d 745 (2d Cir. 1974) and Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131 (2d Cir.1978) is misplaced for the same 16. In Clyde Commercial, a case decided when it was still common practice for the ship owner to load......
  • Phillips Petroleum Co. v. Stokes Oil Co., Inc., Nos. 87-5444
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 12, 1988
    ...(11th Cir.1983). Each one of these cases involved a claim for personal injuries. Although in Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131, 133 (2d Cir.1978), the Second Circuit once extended the Ryan doctrine into a property damage situation, more recently that circuit applied ......
  • Request a trial to view additional results

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