Nichimen Company v. MV Farland

• Decision Date: 29 October 1971
• Docket Number: No. 65 Ad. 1278.,65 Ad. 1278.
• Parties: NICHIMEN COMPANY, Inc., Plaintiff, v. MV FARLAND, her engines, boilers, etc., and A/S Vigra, Defendants.
• Court: U.S. District Court — Southern District of New York

333 F. Supp. 691

NICHIMEN COMPANY, Inc., Plaintiff, v. MV FARLAND, her engines, boilers, etc. and A/S Vigra, Defendants.

No. 65 Ad. 1278.

United States District Court, S. D. New York.

October 29, 1971.

Donovan, Donovan, Maloof & Walsh, New York City, for plaintiff; David L. Maloof, Donald M. Kennedy, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for defendant Vigra; M. E. DeOrchis, Chester D. Hooper, New York City, of counsel.

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

OPINION

BONSAL, District Judge.

Plaintiff Nichimen Company, Inc., of New York, N. Y., instituted this action for cargo damage against the MV FARLAND, her owner A/S Vigra ("Vigra"), and the time charterer Seaboard Shipping Co., Ltd. ("Seaboard"). The issues were tried before the court without a jury.

Plaintiff, a wholly owned subsidiary of Nichimen Co., Ltd., purchased 280 coils of steel from Nichimen Co., Ltd. (of Tokyo, Japan) by invoice dated December 15, 1964 and irrevocable letter of credit payable on presentation of clean on board bills of lading.

On August 8, 1963, Vigra, as owner of the FARLAND, had entered into a time charter with Seaboard as charterer. Clause 8 of that time charter provided:

"8. * * * The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, and trim the cargo at their expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate's or Tally Clerk's receipts."

On December 7, 1964, a "Freight Contract" was entered into between Seaboard as "Timechartered Owners" and plaintiff as "Charterers" whereby Seaboard agreed to supply a minimum of two holds of the FARLAND for the transportation of plaintiff's steel coils from Wakayama, Japan to New Haven, Connecticut. The rate of freight was "$9.00 (nine dollars) U. S. Currency per long ton F.I.O. fully prepaid in New York on telegraphic advice of completion of loading and signing Bills of Lading." The "Freight Contract" provided further that:

"The carrier does not assume the care, custody, control or safety of, and shall not be liable for the cargo until after it is loaded on board the vessel, nor for demurrage, storage or any other charges that may accrue against shipment while awaiting delivery to vessel.

* * * * * *

"Subject to provisions of carrier's bill of lading form currently in use in connection with shipments to destination named above."

The coils consigned to plaintiff were loaded on board the FARLAND, a six hold self-trimming bulk carrier, at Wakayama, Japan, on December 14-15, 1964. The FARLAND had no 'tween deck.

The coils, which weighed from 3-9 tons each, were strapped by 1¼" × 1/16" steel bands—two around the circumference and five passing through the eye at equal intervals. This is the usual manner of strapping steel coils, and the strapping was sufficient for this type of cargo. Edge protectors consisting of steel strips were also used.

While plaintiff paid the cost of loading the coils on board the FARLAND under the "Freight Contract," the coils were stowed and lashed under the supervision of a "specialist" who was hired by Aall & Co., Ltd. ("Aall & Co."), Seaboard's port agent at Wakayama. One hundred forty-two coils were stowed in Hold No. 2 from the after bulkhead and forward in six rows, two tiers high. The forward row was not fully stowed, however, as there was an opening at the center which was shored off with heavy lumber. One hundred thirty-eight coils were stowed in Hold No. 4 from the after bulkhead and forward in three rows, three tiers high. In both Holds Nos. 2 and 4, the coils were stacked up at the after end and the remainder of the hold was left empty. All of the coils were stowed on the round with their ends facing fore and aft and were lashed with wire, turnbuckles and open turnbuckle hooks. The lashings were secured to pad eyes welded to the side bulkheads in Hold No. 2 and to pad eyes welded to the after bulkhead in Hold No. 4. According to the master of the FARLAND, "very little" wood was used, but some wood, in dimensions of 1 × 2, 2 × 4, 2 × 5, and 1 × 6, was used between some of the coils as dunnage to prevent them from shifting. The wire, turnbuckles, hooks, pad eyes, and wood were provided by Aall & Co., Seaboard's agent. The master testified in his deposition that Seaboard's "specialist" directed that the coils be stacked at the after end of Holds Nos. 2 and 4 because the FARLAND was scheduled to stop at Vancouver, British Columbia, en route to New Haven to load Seaboard's lumber in all six holds and Seaboard desired as much space as possible in the bottom of Holds Nos. 2 and 4 to operate fork lifts when loading the lumber.

Nippon, Kaiji, Kentei, Kyokai, general marine surveyors, attended aboard the FARLAND on December 14-15, 1964, at the request of the shipper, Nichimen Co., Ltd., and reported on December 21, 1964 that the stowage of the cargo was proper and done in the best possible way to ensure safe transportation and delivery. In a deposition, the master of the FARLAND expressed his opinion that the coils had been properly stowed and lashed.

Upon completion of the loading on December 15, 1964, a bill of lading on Aall & Co.'s form was issued with respect to the 280 steel coils consigned to plaintiff. The bill of lading was signed by Aall & Co. "For and on behalf of the Master", and stated that the coils were shipped "in apparent good order and condition" by Nichimen Co., Ltd. on board the FARLAND for carriage from Wakayama to New Haven. The master testified that he did not see the bill of lading but that the usual practice was for Seaboard, or its agent, to sign the bills of lading on his behalf. The bill of lading was endorsed on the face as follows:

"Freight payable as per the terms and conditions of the Charter Party and/or the freight engagement.

"All the terms and conditions of the governing Charter Party and/or the Freight Engagement are herewith incorporated."

The Chief Mate signed a mate's receipt for the 280 coils.

The FARLAND sailed from Wakayama on December 15, 1964 for Vancouver with approximately 2,000 metric tons of cargo aboard out of her carrying capacity of 16,220 metric tons. On the 18th of December, the FARLAND encountered a storm. According the the vessel's rough log, the winds increased during the day and by 2200 on the 18th, the winds had reached force 8 on the Beaufort Scale (34-40 knots). The log entry for 2400 on the 18th states, "Ship is working heavily in the sea. Hull is shaking in trembling. Some water shipped." The log indicates that at 0120 on the 19th, the wind direction was east at force 10 (48-55 knots) and that the vessel's speed had been reduced; she was "lying on weather, pitching and some rolling." At 0500 on the 19th, the wind was E-NE and had reached force 11 (56-63 knots) and the vessel was "Lying in weather with steerage. Rolling and violent pitching." There follows an entry in the log which indicates that at 0815 on the 19th it was discovered that part of the cargo had shifted in Hold No. 2.

The master testified that at 0815 on the 19th "the whole cargo was shifted from the after end of the number 2 hold and spread all over the hold in one wave." He testified that this one wave, the height of which he estimated at 60 feet, lifted the FARLAND up, broke over her and dropped her "just like she fell off a rock." His inspection of the coils in Hold No. 2 shortly after 0815 on the 19th revealed that the lashings were broken. The master testified that the crew of the FARLAND had tightened the turnbuckles on the lashings in Hold No. 2 every day prior to the 19th.

At 1030 on the 19th, the following radio-telegram was transmitted by the FARLAND to Seaboard in Vancouver:

"CARGO IN NO TWO HOLD SHIFTED AND DAMAGED STOP AT THIS POINT NO DAMAGE TO THE SHIP SECURING OF SHIFTED CARGO IMPOSSIBLE STOP HOVED TO STOP WIND FORCE 11 VERY ROUGH SEA

MASTER"

There is no reference to a 60-foot wave in either the log or in the radio-telegram sent approximately two hours after the time the log indicates that the coils had shifted.

The FARLAND proceeded to Vancouver, arriving at the pier at 1900 on December 30. On arrival, the coils in Hold No. 2 were examined by Thomas W. Morgan, a marine surveyor, at the request of Seaboard, Vigra, and the cargo underwriters. Morgan's initial inspection revealed that approximately one-third of the steel coils had opened up to such an extent that the whole area of the lower hold was covered with unwound coils. The FARLAND was scheduled to load Seaboard's lumber in all six holds in Vancouver, and since Morgan determined that it was not practicial to floor off the cargo in Hold No. 2 in its damaged and scattered condition, it was decided to cut some of the damaged steel and remove it to a scow placed alongside the vessel. Thereafter, part of the packaged lumber cargo was placed in Hold No. 2, the cut sections of steel coils were replaced in Hold No. 2, and all six holds of the FARLAND were filled with lumber. Morgan was of the opinion that this procedure was "the only practical method of tackling this situation." Seaboard paid all costs of cutting and restowing the steel sections in Vancouver.

The stowage of the lumber cargo was completed on January 15, 1965. It was snowing and raining throughout the loading operation, and the lumber stowed in Hold No. 2 with plaintiff's steel coils was soaking wet.

On January 18, the FARLAND proceeded to Boston and Providence to discharge Seaboard's lumber. Due to a longshoremen's strike, the FARLAND did not arrive in New Haven until March 1, 1965. On March 2, 1965, after the remaining lumber cargo had been discharged from the FARLAND, Captain Axel Jelstrup, a marine surveyor representing the cargo underwriters, Captain J. Stave, a marine surveyor...