Nissho-Iwai Co., Ltd. v. Star Bulk Shipping Co.

• Decision Date: 11 June 1974
• Docket Number: 73-3158,NISSHO-IWAI,Nos. 73-3171,s. 73-3171
• Citation: 503 F.2d 596
• Parties: CO., LTD., Plaintiff-Appellee, v. STAR BULK SHIPPING CO. and Buchanan Shipping Co., Defendants-Appellants.CO., LTD., Plaintiff-Appellee, v. AMERICAN MAIL LINE LTD., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 596

503 F.2d 596

NISSHO-IWAI CO., LTD., Plaintiff-Appellee, v. STAR BULK SHIPPING CO. and Buchanan Shipping Co.,

Defendants-Appellants.

NISSHO-IWAI CO., LTD., Plaintiff-Appellee, v. AMERICAN MAIL LINE LTD., Defendant-Appellant.

Nos. 73-3171, 73-3158.

United States Court of Appeals, Ninth Circuit.

June 11, 1974.

David M. Salentine (argued), Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for defendants-appellants.

Dwight L. Guy (argued), Detels, Draper & Marinkovich, Seattle, Wash., for plaintiff-appellee.

Before MERRILL and WALLACE, Circuit Judges, and BURNS, ¹ District judge.

OPINION

PER CURIAM.

Four substantially similar and consolidated maritime claims for cargo damage were brought by Nissho-Iwai Co., Ltd. (Nissho) as consignee against appellants Star Bulk Shipping Co., A/S, owner of, and Buchanan Shipping Co., charterer of, the M.S. Star Clipper and appellant American Mail Line Ltd., owner of the S.S. Indian Oregon Mail. The appeal was taken from a judgment in favor of Nissho for damages to cargo and for costs of a unilateral survey. We affirm the former but reverse the award for the survey fee.

Appellants contracted to carry cargo to Japan. The cargo was carried to the Japanese ports of discharge and delivered to Nissho. There, the cargo was discharged from the vessels into lighters or barges hired by Nissho. At the time of discharge to Nissho's lighters, two sets of cargo checkers were aboard each ship: A.N.C.C. acting for Nissho and J.C.T.C. acting for the carriers. The A.N.C.C. and J.C.T.C. checkers tallied the cargo being discharged and checked its condition. Both sets of checkers prepared cargo boat notes listing the amount of cargo discharged to Nissho's lighters and the condition of the cargo. The pairs of boat notes contain the same tally. Thereafter, Nissho arranged to have the lighters towed away and at a later date or dates, Nissho arranged to have the cargo landed at one or more shoreside warehouses. After the landing, Nissho's warehouseman appointed a surveyor, N.K.K.K., to survey the cargo. The latter survey showed substantially greater cargo damage than the joint survey. The district court relied on the N.K.K.K. survey and assessed the survey fee to appellants.

Four questions are presented by appellants. Relying on United States v. El Paso Natural Gas Co., 376 U.S. 651, 657, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), they argue that the trial court's findings and conclusions must be rejected because they were mechanically adopted and 'do not reveal the discerning line for decision of the basic issues in the case.' They contend that 'the practice of announcing a general decision in favor of one party and then turning over the fact-finding to that party's counsel is not to be approved,' and cite a footnote in El Paso Gas. Id. at 657 n. 4, 84 S.Ct. at 1047. That footnote contains a suggestion made by a judge at a seminar to the effect that judges delegating the initial draft of findings to a party should not abdicate their judicial responsibility to make sure that the ultimate findings comport with the judges' actual determinations. Nor do we believe that Rincon Band of Mission Indians v. County of San Diego, 495 F.2d 1, 11 (9th Cir. 1974), states anything more illuminating. We are aware that busy judges sometimes request attorneys to prepare the first draft of proposed findings and conclusions. The vice is when the district judge fails to study them and make such changes as are...