Thyssen, Inc. v. S/S FORTUNE STAR

• Decision Date: 24 October 1984
• Docket Number: No. 80 Civ. 5664(RO).,80 Civ. 5664(RO).
• Citation: 596 F. Supp. 865
• Parties: THYSSEN INC., Plaintiff, v. S/S FORTUNE STAR, her engines, boilers, tackle, etc., Taiwan International Lines, Ltd., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

596 F. Supp. 865

THYSSEN INC., Plaintiff, v. S/S FORTUNE STAR, her engines, boilers, tackle, etc., Taiwan International Lines, Ltd., et al., Defendants.

No. 80 Civ. 5664(RO).

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

October 24, 1984.

Harold M. Kingsley, New York City, for plaintiff; Randal D. Pratt, New York City, of counsel.

Dougherty, Ryan, Mahoney, Pellegrino, Giuffra & Zambito, New York City, for defendants; Vincent J. Barra, John A. Ciraldo, New York City, of counsel.

AMENDED OPINION

OWEN, District Judge.

This is an action for salt-water damage to steel pipe shipped aboard the vessel S.S. Fortune Star under charter to defendant Taiwan International Lines, Ltd. Plaintiff Thyssen Inc. was the owner of the pipe shipped from Korea to Puerto Rico under clean bills of lading with a specific clause that the pipe be "stowed under deck." The cargo was unquestionably received in good order and condition by the carrier and initially stowed in accordance with the instructions under supervision of the ship's officers. However, before crossing the Pacific, pursuant to an order of an officer of the vessel, most of the pipe was removed from below deck and stowed above deck, covered with canvas and plastic sheets.

Thereafter, in the Pacific, the vessel encountered rough weather and swells causing the vessel to roll and pitch and constantly take sea water on deck for a number of days, during which time the coverings for the pipe were badly damaged and torn. As a consequence of this, the pipe, upon arrival in Puerto Rico, was determined by a joint survey to have depreciated 23% in value. Plaintiff having contracted to sell the shipment to a customer for $214,743.70 was therefore required to remit to the customer $49,391.05. In addition, the plaintiff spent $3,989.15 in surveyor's fees to establish the damage. Plaintiff was reimbursed for its loss pursuant to a marine insurance policy by Italia Assicurazioni SpA which is hereafter deemed the real party in interest.

The removal of the cargo from below deck stowage to deck stowage is an unreasonable deviation from the bill of lading, exposing the cargo to additional risk and results in an "abrogation of the contract." Jones v. Flying Clipper, 116 F.Supp. 386 (S.D.N.Y.1953). Defendant Taiwan is therefore liable to the plaintiff as an insurer for its damage in the amount of $53,380.20 constituting the depreciation in value and the cost of the survey. The joint survey here, conducted by representatives of all...