Pioneer Import Corporation v. The Lafcomo

• Decision Date: 31 March 1943
• Parties: PIONEER IMPORT CORPORATION v. THE LAFCOMO et al.
• Court: U.S. District Court — Southern District of New York

49 F. Supp. 559

PIONEER IMPORT CORPORATION v. THE LAFCOMO et al.

District Court, S. D. New York.

March 31, 1943.

Iselin, Riggs, Ferris & Mygatt, of New York City (George C. Sprague, Morris D. Ferris, and H. C. Archibald, all of New York City, of counsel), for libelant.

Tompkins, Boal & Tompkins, of New York City (Arthur M. Boal, of New York City, of counsel), for claimant.

Hunt, Hill & Betts, of New York City (John W. Crandall and Earle H. Houghtaling, Jr., both of New York City, of counsel), for respondent.

LEIBELL, District Judge.

Libelant brings this action in rem against the S. S. "Lafcomo", owned by the claimant, and against the respondent in personam as the operator of the steamship under a time charter from claimant. The action is for damages (in excess of $62,000) to a shipment of 1,847 cases and 20 bundles of 4 cases each of lily of the valley pips carried from Rotterdam to New York in November-December, 1939. The Bill of Lading was in the usual form of the respondent, a common carrier, and bore the stamped notation: "Shipped on deck at shipper's risk." When the shipment arrived in New York the pips were so badly damaged by sea water that they were worthless commercially and libelant sustained a total loss.

The arrangement for the shipment on the "Lafcomo" was made on November 25, 1939. The principal issue in this case is what was the agreement made by the libelant and the respondent, acting through their respective agents at Rotterdam, as to the place and manner of the stow. Employees and managers of the foreign agents testified through depositions, taken in question and answer form. The libelant's shipping agent was Van Es & Co.; the respondent was represented by Van Nievelt, Goudriaan & Co., who in turn employed stevedores, Thomsen's Havenbedrijf, all of Rotterdam, Holland.

Libelant's agents testified that when the shipping space was engaged, it was understood that the cases of lily of the valley pips were to be carried on the forward deck and were to be covered with tarpaulins. The respondent admits that the original request for space was in that form but asserts that later, after some discussion over the telephone, the libelant's agents withdrew the request that the cases be covered with tarpaulin but held to their demand that the shipment be carried on the foredeck. Below deck space, between decks under the forward hatches, was offered libelant's agents and was refused. The cases were stowed on the plating of the forward deck in the wings of the hatches. The shipment was in good order and condition when received on board. No covering of any kind was placed over the cases. In a North Atlantic crossing in the first half of December the "Lafcomo" ran into weather such as is experienced at that time of the year—strong winds and high seas, some of which came aboard on the forward deck. The shipment of lily of the valley pips was thoroughly soaked by the salt water.

I have concluded that the agreement of the parties contemplated stowage of the cases on the forward deck, properly covered by tarpaulins. The shippers wanted the cases in a cool place and protected from the sea water. The testimony of libelant's witnesses is supported by the notation on the loading permit which libelant's agents, Van Es & Co., prepared and delivered with the cases to the stevedore employed by respondent. That notation on a contemporary document, delivered by the shipper's agent to the carrier's representative and accepted by him, was never changed. The question arises—if the respondent agreed to those conditions, why did it fail to comply with them? Probably the answer is that neither on the ship nor at the respondent's dock did they have the tarpaulins necessary to cover this deck cargo. The ship had only three spare hatch tarpaulins. The arrangement for the shipment was made Saturday, November 25, 1939, about 1 P. M. When the deck cargo (except 167 cases) was brought alongside the "Lafcomo" pier on a lighter that same afternoon about 5:30, the stevedore telephoned respondent's agents and asked where he was to get the tarpaulins. He was told the cases did not have to be covered. The stevedore was anxious because the hour was late Saturday and he could not get tarpaulins on Sunday. The cases were loaded aboard the "Lafcomo", on the forward deck the following afternoon, Sunday, November 26th, and on the evening of that day. The "Lafcomo" finished loading about 3 A.M. November 27th. The weather was bad when she left her pier, so she was shifted to a buoy in the stream until 9 A.M. on November 29th when she sailed for New York. When the "Lafcomo" arrived here on December 16th the cases were unloaded and placed on the pier. They were very wet and appeared to have been pretty well soaked. Prospective buyers noted this and samples of the packing (spagnum moss) showed a high salt water content. Later tests clearly established that the salt water had severely damaged the lily of the valley pips which had been packed in the spagnum moss.

Libelant contends that not only did respondent breach its agreement in not covering the cases with tarpaulins but that respondent and claimant were negligent in the manner in which the cases were stowed on the forward deck, that they did not exercise reasonable and proper care. The "Lafcomo" was a Hog Island ship of the well-deck type, 419 feet long overall with a beam of 58 feet. The No. 1 and No. 2 hatches were on the forward well-deck. A solid bulwark extended along both sides of the ship. Freeing ports, mooring rings in the bulwarks and some scuppers afforded means for the ship to free herself from seas that might come aboard. Hog Island ships are known as wet ships. These cases were so stowed in the wings of the hatches that they left a space of only four inches between the outside of the stow and the bulwark, with the result that two of the four freeing ports, both of the mooring rings, and part of the scuppers in each bulwark were blocked off and obstructed. The "Lafcomo" shipped sea water on the foredeck over the bulwarks and some by the forecastle head. At intervals the foredeck would not be cleared of water from one wave before it was flooded by another wave and the lower tiers of the stow were thus submerged in sea water for considerable periods of time during the voyage.

Libelant's experts have testified and demonstrated through a model that the cases could have been stowed on top of the No. 1 and No. 2 hatches, which were three feet above the deck plating. Libelant's expert, Captain Lynner, has testified how, if this had been done, the lower tier of the stow would have been well above most of the seas that came aboard and all the ships freeing ports, mooring rings and scuppers would have been unobstructed and would have greatly aided the ship in quickly freeing herself from the sea water. By stowing the cases on the hatches instead of along the bulwarks in the wings of the hatches, the cases would have been about fifteen feet from either side of the ship — well removed from most of the seas that came aboard. Half the stow on the hatches would have been at least three feet higher from the deck, than the top of the stow as made along the bulwark, where the cases were tiered from some plank dunnage to a height of six feet and six inches. There would have been that additional protection even if no tarpaulin had been used. I believe that in stowing these cases (containing lily of the valley pips — plant life), where they were certain to be soaked with salt water, the respondent and claimant evidenced a disregard for the requirements of this particular deck cargo. They knew the libelant wanted to protect the cargo from the salt water and yet to have it stowed on deck where it would be cool. They knew that it should have had the same protection as flower bulbs, and the shipper on paying the freight in advance in New York to respondent's agents, made that request. That part of the foredeck on which the cases were stowed was the part most exposed to the waves. Not even ordinary care was used. It might have been a more laborious and difficult task to make the stow on the top of the hatches, but it could have been done, and the inherent nature of the shipment required that it should have been done.

Indeed, by stowing this cargo so that it blocked off part of the freeing ports, mooring rings and scuppers, the "Lafcomo" was rendered unseaworthy in respect to its carriage. The J. L. Luckenbach, 2 Cir., 65 F.2d 570, 572. The ship was not seaworthy "quoad that cargo" as stowed. The Thomas P. Beal, 3 Cir., 11 F.2d 49, 51. The ship itself is responsible in a suit in rem for damage to the cargo, whether the basis for the damage claim is unseaworthiness of the ship or improper stowage of the cargo. The Sundial, 2 Cir., 43 F.2d 700. A lien arises against the ship for damage to cargo caused...