Puerto Rican-American Ins. Co. v. Sea-Land Service, Civ. No. 86-0479 (JP).
| Decision Date | 09 December 1986 |
| Docket Number | Civ. No. 86-0479 (JP). |
| Citation | 653 F. Supp. 396 |
| Parties | PUERTO RICAN-AMERICAN INSURANCE CO., Packers Provisions Co. of Puerto Rico, Plaintiffs, v. SEA-LAND SERVICE, INC., Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Francisco Bruno Rovira, San Juan, P.R., for plaintiffs.
Jimenez, Graffam & Lausell, San Juan, P.R., for defendant.
The plaintiffs, Packers Provisions Co. of Puerto Rico (Packers), and its insurance company, Puerto Rican-American Insurance Co. (PRAICO), brought this action against the defendant, Sea-Land Services, Inc. (Sea-Land) to recover for damages suffered by a shipment of fresh meat while being transported by defendant from Puerto Cortés, Honduras, to San Juan, Puerto Rico. The action was submitted to the Court under its admiralty jurisdiction, 28 U.S.C. § 1333,1 and a non-jury trial was held on September 17, 18, 19 and 22, 1986. After careful review of the content of the testimony of the witnesses at trial and the exhibits submitted by the parties, the Court, pursuant to Fed.R.Civ.P. Rule 52(a), makes the following findings of fact and conclusions of law:
I. FINDINGS OF FACT:
1. Empacadora Alus, S.A. (Alus) is a slaughterhouse and meat processing facility located in San Pedro Sula, Honduras, that prepared and shipped 700 boxes of fresh bovine boneless beef to Packers.
2. The meat in question was processed between July 23 and July 30, 1985, from cattle which had been slaughtered between July 22 and July 29, 1985.
3. The Trailer Interchange Receipt issued in Honduras establishes that container SEAU 262149 was delivered at Alus' facility on August 1, 1985, on which date it was inspected and loaded by Alus employees, sealed with seal number XXX-XXXXXXX, and returned to Sea-Land for shipment to San Juan, Puerto Rico.
4. The shipment of meat consisted of individual meat cuts which were vacuum packed in cry-o-vac bags.2 A varying number of cry-o-vac bags was then placed in larger plastic bags lining the cardboard boxes. The cardboard boxes were 20 inches long, 16 inches wide, and 6 inches deep. Each box contained between 55 and 60 pounds of meat. The specifications to which the boxes were manufactured called for a maximum vertical loading capacity of 275 pounds.
5. Prior to loading aboard container SEAU 262149, the shipment of meat in question had been properly processed and cared for by Alus, was in good condition, and had a temperature of 31 degrees Fahrenheit.
6. Fresh beef which is properly processed, promptly vacuum-packed in cry-o-vac packaging, and kept at 31 degrees Fahrenheit will remain fit for human consumption for a period of six to eight weeks after the slaughtering of the cattle.
7. The 700 boxes were stowed inside container SEAU 262149 in an "airflow pattern." This allowed cold air to circulate around the individual boxes. The boxes were placed with the 20-inch dimension running along the length of the container and the 16-inch dimension running across the width of the container. Each tier of cargo consisted of layers of four boxes each, placed across the container with a six to eight inch space between the boxes. Each layer was staggered alternately to the left and right in order to create the airflow pattern. No bracing was provided in order to prevent cargo shifting.
8. Container 262149 had an interior length of 385.5 inches. Given the box length of 20 inches and the container's interior length there were a maximum of 19 tiers. Loading 700 boxes in 19 tiers requires a minimum of 36 boxes in each tier. With 4 boxes to a layer, each tier must have had 9 layers. This accounts for 684 of the 700 boxes shipped. Simple arithmetic dictates that the last sixteen boxes must have gone on top of the nine layers.
9. Sea-Land received the shipment in question already loaded on container SEAU 262149 and issued bill of lading No. 156-310427 dated August 2, 1985. The bill of lading in its pertinent parts describes the shipment as follows: "Lot No. 94"; "700 boxes. — bovine fresh boneless beef"; "temperature supplied by shippers: 31 degrees Fahrenheit"; "cargo received reading 31 degrees Fahrenheit"; "shippers load stowage weight and count."
10. The third paragraph of Clause 7 of the bill of lading states as follows: "When a loaded container, van or trailer is received, carrier will set the thermostatic control to maintain air temperature in the container to within a range of plus or minus five degrees Fahrenheit of the temperature requested by the shipper on the face hereof."
11. There is no dispute as to the good condition of container SEAU 262149 at the time it was delivered to Alus for loading and subsequently returned to Sea-Land for shipment. At this time the refrigeration unit of the container was found to be working properly and maintaining the requested temperature of 31 degrees Fahrenheit. The walls, doors, floor, and roof of the container were also found to be in good condition and proper for the shipment in question.
12. Container SEAU 262149 was loaded at Puerto Cortes, Honduras, on August 2, 1985, aboard Sea-Land's vessel SS SHELLEY BAY. The SS SHELLEY BAY sailed from Puerto Cortes, Honduras on August 2, 1985, and arrived at the port of Kingston, Jamaica, on August 13, 1985, where the container remained at Sea-Land's agent's yard until August 15, 1985. On August 15, 1985, the container was loaded on Sea-Land's vessel M/V STRIDER JUNO. The M/V STRIDER JUNO arrived at San Juan, Puerto Rico, on August 17, 1985, where the container was unloaded.
13. On August 17, 1985, Sea-Land gave the delivery order for container SEAU 262149. On August 19, 1985, Packers had received notice that the container was available for delivery and had obtained all clearances required from the United States Customs Service for delivery of the shipment. However, the container remained in Sea-Land's yard until September 5, 1985, when it was picked up by Transporte Acosta, Inc., a trucker designated by Packers. At the time the container was picked up by Transporte Acosta, Inc., it was reading 31 degrees Fahrenheit.
14. During the 35 days the container was in Sea-Land's possession, readings of the container temperature were in compliance with the contractual obligation assumed by the carrier with the exception of three readings of 40, 40, and 46 degrees Fahrenheit.
15. While the container was in Sea-Land's possession at least two temperature readings were recorded each day. The readings of 40, 40, and 46 degrees Fahrenheit occurred on different days and were preceded and followed by proper readings. The recorded temperatures refer to the temperature of the air within the container and not the temperature of the meat itself. Temperature fluctuations occur routinely during defrosting cycles or during vessel loading or unloading operations when refrigeration units are shut off for safety reasons.
16. On September 6, 1985, when Packers opened the container it noted damage to the shipment. The bottom layers of cargo were crushed. Damage was especially severe at the bottom three layers. As a result of the crushing, some cry-o-vac bags had burst and the blood contained within the cry-o-vac bags had stained the boxes.
17. During unloading, Packers noted a conical hole, with diameter of five inches at the base of the cone. The hole was in the inside right wall of the container. The cover used to seal the hole on the inside of the container was found on the floor of the container. No evidence was presented regarding how or when the cover was dislodged, although it may have been dislodged during the loading or unloading of the cargo.
18. At some time after delivery, the gasket sealing the right side door of the container was found dislodged and damaged. No evidence was presented as to when the damage occurred. Again, the door may have been damaged during loading or unloading.
19. During the routine inspection of the imported beef performed by the United States Department of Agriculture , the inspector refused entry to the United States to 650 boxes of fresh boneless beef cuts. Entry of this shipment was refused because in the 30 boxes actually inspected, there were three cuts of meat that had spoiled and unfit for human consumption. This meat was found in broken cry-o-vac packaging. The meat inspected from sound cry-o-vac bags was found to be in good condition, at acceptable temperatures, and would have been allowed into the United States. According to U.S.D.A. regulations, however, indication of spoilage in a randomly selected sample mandates refusal of entry to the entire shipment. 9 C.F.R. § 327.3 (1986).
20. Aside from the 650 boxes which were refused entry into the United States, there were 50 boxes of manufacturing beef in the same container that were allowed entry into the United States by the U.S. D.A.
21. After the shipment, an inspection of container SEAU 262149 found the refrigeration unit working properly.
22. Under U.S.D.A. regulations, Packers had the option of destroying the 650 boxes which had been refused entry into the United States, converting the same into animal feed, or re-exporting the product for final disposition outside of the United States. Packers opted to re-export the shipment, returning it to Alus.
II. CONCLUSIONS OF LAW
The bill of lading issued in the instant case for carriage of goods by sea from Puerto Cortes, Honduras, to San Juan, Puerto Rico, is subject to the provisions of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq.
Under the provisions of COGSA the burden of production as well as the burden of persuasion may rest with either party depending on the circumstances involved and the defenses or exceptions raised by the carrier. This shifting of burdens has been often described as a "ping-pong volley-like exchange." EAC Timberlane v. Pisces, Ltd., 745 F.2d 715, 719 (1st Cir. 1984); EAC Timberlane v. Pisces, Ltd., 580 F.Supp. 99, 114 (D.P.R.1983); see also Nitram, Inc....
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