Orient Overseas Line v. Globemaster Baltimore, Inc., 437

• Decision Date: 01 November 1976
• Docket Number: No. 437,437
• Citation: 33 Md.App. 372,365 A.2d 325
• Parties: , 1976 A.M.C. 2365 ORIENT OVERSEAS LINE et al. v. GLOBEMASTER BALTIMORE, INC., et al.
• Court: Court of Special Appeals of Maryland

Page 372

33 Md.App. 372

365 A.2d 325, 1976 A.M.C. 2365

ORIENT OVERSEAS LINE et al. v. GLOBEMASTER BALTIMORE, INC., et al.

No. 437.

Court of Special Appeals of Maryland.

Nov. 1, 1976.

Certiorari Denied Jan. 26, 1977.

Richard R. Jackson, Jr., and John C. Baldwin, Baltimore, with whom were Ober, Grimes, & Shriver, Baltimore, on the brief, for appellants Orient Overseas Line and Overseas Maritime Co., Inc.

Howard G. Goldberg, Baltimore, with whom were Phillps L. Goldsborough, III., and Smith, Somerville & Case, Baltimore, on the brief, for appellant/cross-appellee John T. Clark and Son of Maryland, Inc.

David W. Skeen, Baltimore, with whom were John H. Skeen, Jr., and Skeen & Roach, Baltimore, on the brief for appellees/cross-appellant Globemaster Baltimore, Inc.

Francis J. Gorman, Baltimore, with whom were Semmes, Bowen & Semmes, Baltimore, on the brief for appellee Cottman Co.

Argued before THOMPSON, MOYLAN, POWERS and MOORE, JJ.

MOYLAN, Judge.

Globemaster Baltimore, Inc. (Globemaster), consignee of cargo listed in two ocean bills of lading and assignee of cargo listed in four others, filed a suit in the Superior Court of Baltimore City against Orient Overseas Line and Overseas Maritime Company (Overseas), owners and operators of the S.S. Hongkong Merchant (Merchant) and the S.S. Hongkong Mariner (Mariner); John T. Clark & Son of Maryland, Inc. (Clark), discharging stevedore; and the Cottman Company (Cottman), the operator of a terminal at Pier 8, Canton Railroad, seeking damages for shortages in the cargo, consisting of handtools, shipped on Overseas' two ocean-plying vessels from Kobe, Japan, to the Port of Baltimore. Overseas, in turn, filed cross-claim against Clark and Cottman seeking indemnity. After a three-day non-jury trial, Judge Solomon Liss issued an oral opinion on March 14, 1975, finding all three defendants failed to use reasonable care in the handling of the cargo and entered a verdict in favor of Globemaster in the amount of $16,795.02, representing the value of the lost cargo and a proportionate share of the shipping costs and brokerage charges. Judge Liss, however, denied certain other items of damages claimed by Globemaster, including a $5,000 pre-judgment interest claim. Judge Liss also denied Overseas' cross-claims for indemnity against Clark and Cottman, holding that 'each of the defendants had been negligent in the handling of the cargo and that, therefore, they were not entitled to recover against each other.' The defendants were held jointly and severally liable under Maryland law, with no apportionment of damages based on degrees of negligence. Overseas and Clark appeal the judgments entered against them. Overseas also appeals the denial of its cross-claims. Globemaster appeals on the issue of damages. Cottman has filed no appeal.

In May of 1970, Globemaster entered into a contract with Overseas, through six ocean bills of lading issued in Japan, to have shipped, from Japan to Baltimore, 10,888 cardboard cartons of handtools. The first shipment of 7,316 cartons was loaded aboard the Merchant, which arrived at Pier 8 in the Lower Canton section of the Port of Baltimore on June 26, 1970. The cargo was discharged immediately and the ship resumed her voyage. Several weeks later, the Mariner arrived with the remaining 3,572 cartons. The cargo was discharged on July 15, 1970, and the ship departed immediately. Both vessels had made stops at other ports before arriving in Baltimore. Longshoremen in those ports, while discharging other cargo, had worked in the same holds where the Globemaster cargo was stored. There was no partition separating the Golbemaster cargo from other cargo.

The Mate's Receipts for the Merchant, which were prepared by a member of the crew of the Merchant at the time the cargo was loaded aboard to check the number of cartons and their condition, contain either the partially handwritten and partially stamped notation in the exceptions portion: 'Ship's N/R (not responsible) for cover torn, loss, shortage and/or Condition of Contents' or the stamped notation: 'Ship N/R for breakage and/or condition of contents.' The several receipts for the Mariner which were introduced into evidence contain no notation in the exceptions portion. Overseas sought to explain that the notations were general disclaimers of responsibility for the contents and the sufficiency of the packaging to withstand normal handling and did not admit any shortage or damage to the inside of the cartons. Clean bills of lading, containing no notations or disclaimers as to shortage, were issued by Overseas on both shipments.

Overseas' local agent in Baltimore, Thor Eckert Maritime Agencies, Inc. (Eckert), retained Cottman, which operated a transit shed at Pier 8, to perform terminal operations for Overseas' vessels and their cargoes. Eckert paid Cottman a dockage charge which permitted the vessels to tie up at the pier and a wharfage charge which permitted the cargo to be unloaded onto the pier and remain warehoused within the transit shed for five days following a discharge, after which time Cottman received demurrage charges from the cargo receiver, Globemaster, for pier storage and retained a lien on the goods until the charges were paid.

Eckert also retained Clark to perform the stevedoring services on the two shipments, which entailed unloading the cargo, tallying it, and then placing it within Cottman's shed. Longshoremen employed by Clark unloaded the cartons of handtools from the Merchant and the Mariner on June 26, 1970, and July 15, 1970, respectively. On each occasion, the cartons were stacked by the longshoremen on pallets, or drafts, removed from the vessel and placed on the pier apron adjacent to the vessel for checking by 'checkers' or 'tallymen' employed by Clark. The checkers were to tally the cargo and take exception to any damage or shortage in the cargo before the longshoremen placed the cargo in Cottman's shed.

Based on freight lists, or 'manifests,' which Overseas had forwarded to Eckert of all cargo aboard the vessels, Eckert had prepared Tally Records for use by Clark in checking the cargo upon arrival. These records contained the name of the vessel and its arrival date. They also identified the Globemaster cargo by bill of lading, commondity, markings, number of cartons and weight. Clark's checkers indicated the number of cartons removed from the vessels on 'ditto sheets,' which were copies of the freight lists or 'manifests,' and the sections in Cottman's shed where these cartons were placed. These notations were then transferred in Clark's office to the official Tally Records. The testimony revealed, however, that Clark's count was actually an estimate rather than an actual count. Because union rules prohibited the checkers from handling the cargo, they had to rely on a visual estimate of the number of cartons on a pallet. Thomas E. Hughes, one of Clark's checkers, testified that, from an external inspection, a checker can only see approximately 44 of the 64 cartons on an average draft. No exceptions were, furthermore , taken on the Tally Records as to the condition and number of cartons of Globemaster cargo removed from the vessels. A copy of the completed Tally Records was forwarded to Eckert and to Cottman. Eckert would have transferred any notations on the Tally Records to the freight lists. The only notations that appear on the freight lists as to the Globemaster cargo are 'Nil' and 'All acc for.' Cottman made no independent tally or inspection of the cargo when it was unloaded from the vessels and stored in the transit shed.

Edward Yealdhall was the pier superintendent for Cottman in 1970, at the time the Globemaster cargo arrived. He was present when the cargo was discharged from both the Merchant and the Mariner and stored in the transit shed. He testified that when the Merchant arrived, the cargo that was unloaded ws in 'very bad order' with loose tools lying in the middle of the pallets. Yealdhall testified that he went on board the Merchant to see if the cargo was being handled and stored properly. There he saw loose tools and broken cartons in the hatch. Other cargo had been stored on top of the Globemaster cargo. Yealdhall stated that when the pallet-loads of cardboard cartons were stacked three or four high on the pier, more cartons fell and broke open. As a result, Yealdhall testified that he complained to 'Sailor,' Edward Wos, Clark's stevedoring superintendent. 'Sailor' told him to get in touch with Steven Byan, who was then the Vice-President of Clark. Yealdhall stated, however, that even after he reached Steven Byan, nothing was ever done to remedy the situation. When the Mariner arrived, the cargo was in the same condition. Yealdhall testified that he again complained to his superiors.

Yealdhall described the Cottman shed as a long, enclosed shed, approximately 500 by 130 or 140 feet, with three doors on the west or land side and a big opening at the head of the pier for trucks to enter and exit. The east side was the loading side, and the west side was the delivery side. His office was on the northwest side of the pier. The shed was not partitioned on the inside with the exception of a galvanized wire cage, approximately 75 by 150 feet at the south side of the pier for securing 'hot' or highly pilferable cargo. The cage had a lock on its only entrance and was covered on the top with barbed wire. It was in this cage that Yealdhall testified he placed some of the very badly broken cartons for safekeeping. Other broken cartons, however, were not placed in the cage until the truckers, who arrived on numerous occasions sometime later to pick up the cargo, rejected the broken cartons.

The cargo from the Merchant, which was discharged on June 26, was picked up intermittently from July 9 through July 20. The cargo from the Mariner, which was discharged on July 15, was picked up intermittently from July 22 through August 5. During this time,...