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March 21, 1951


The opinion of the court was delivered by: GODDARD

These consolidated suits seek to recover for loss and damage to shipments of bagged coffee from Santos, Brazil, to New York City in the S.S. Troubador, a vessel that was owned, operated, managed and controlled during the voyage involved in this action by the respondent United States. Both libels have been dismissed without costs by consent as to United Fruit Co., Cosmopolitan Shipping Co., Inc., and Moore-McCormack Lines, Inc.

The vessel left Santos on March 18, 1943 and did not arrive in New York City until June 30, 1943.

 The Troubador was a coal burning vessel built in 1919. She had a top speed of six or seven knots under normal conditions, but because of numerous breakdowns resulting in lost speed and delays for calls at various ports for repairs and further delays waiting for convoys to form, this voyage that would ordinarily take this vessel about one month took 104 days.

 When the ship's hatches were opened in New York, it was found that the coffee had bleached and swelled so that the bags were pressed against the deck beams and up about two feet into the squares of all hatches. Many of the bags and the twine with which the bags were sewn had rotted. This, plus the swelling of the coffee, caused many bags to burst and spill all or parts of their contents. According to the ship's stowage plan, 91,634 bags were loaded at Santos. The surveyor, who acted for the ship and carrier, reported that on shipments totalling 91,387 bags, 11,429 were slack and 2,298 were empty.

 The libelants' claims are for (1) shortage of whole bags of coffee; (2) slackage from torn or burst bags; (3) actual physical damage to coffee delivered; and (4) the loss sustained by reason of the difference in the value of the coffee delivered to the respondent at Santos in intack bags and the lesser value of the bags of sweepings containing coffee and foreign matter substituted by the respondent to offset the shortage and slackage.

 Under the Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1303, 1304, if the shipper proves that his goods were loaded in good condition and outturned damaged, the carrier, in order to avoid liability, must prove (1) that the harm resulted from an 'excepted cause' for which the carrier was not liable, or (2) that it exercised due diligence to avoid and prevent the harm. American Tobacco Co. v. The Katingo Hadjipatera, D.C., 81 F.Supp. 438.

 The respondent carrier has raised as a defense the contention that there was an inherent vice or quality in the coffee when it was loaded aboard the vessel. When the defense of inherent vice is raised, it brings into issue the good condition of the goods when shipped. The Niel Maersk, 2 Cir., 91 F.2d 932, certiorari denied, 302 U.S. 753, 58 S. Ct. 281, 82 L. Ed. 582; American Tobacco Co. v. The Katingo Hadjipatera, supra.

 The respondent has offered no convincing evidence in support of its contention. The respondent asserts that the coffee was 'old crop' (prior to the current or new crop); that the expansion was the natural result of the aging of the coffee: However, experts testified at the trial that the difference between current and old crop coffee in both weight and bulk is almost imperceptible. It is apparent that the great expansion in the coffee here in such a relatively short time must be from another cause.

 The bills of lading recite that the coffee when loaded was in 'apparent good order and condition'. The coffee was shipped under the supervision of the Brazilian Government's coffee control organization. There was much testimony, that, when loaded, the coffee was not swollen; that the bags were of the type customarily used; the bags were dry and not torn, burst or rotted, and that the coffee was loosely bagged. Despite very rough handling, only a very few bags burst during loading.

 The fact that approximately 80,000 bags out of approximately 91,000 bags were outturned in good condition is some evidence that the entire cargo was in good condition when loaded. Cargo Carriers, Inc., v. Brown Steamship Co., D.C., 95 F.Supp. 288, 1950 A.M.C. 2046.

 After careful consideration of all the testimony, I am satisfied that the coffee was in good condition when loaded aboard the Troubador.

 It is undisputed that some of the coffee outturned in a damaged condition and since the respondent did not show that the damage was the result of an excepted cause, it is incumbent upon the respondent carrier to show that it exercised due diligence to avoid the damage.

 The libelant contends that the S.S. Troubador was not seaworthy. However, under the Carriage of Goods By Sea Act, 46 U.S.C.A. 1300 et seq., neither carrier nor ship is liable for loss resulting from unseaworthiness unless caused by a failure to exercise due diligence to make the ship seaworthy. Ore Steamship Corporation v. D/S A/S Hassel, 2 Cir., 137 F.2d 326. It appears that the carrier did exercise such due diligence in this case.

 Due diligence is that diligence which a competent vessel owner would or should exercise under the circumstances. The Bill, D.C., 47 F.Supp. 969. The S.S. Troubador was reconditioned in 1941-1942 and received a seaworthy certificate from the American Bureau of Shipping in December, 1942. New boilers were installed by a reputable marine boiler maker. In December, 1942, the vessel was drydocked and extensive voyage repairs were made in Philadelphia. Voyage repairs were made at New York and Norfolk just prior to the voyage to Santos. At Santos voyage repairs were made and the classification surveyor surveyed her holds and declared her to be seaworthy and 'fit to carry dry and perishable cargo'. I think respondent has shown it did exercise due diligence to make ...

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