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Hecht, Levis & Kahn Inc. v. S.S. President Buchanan

decided: August 27, 1956.

HECHT, LEVIS & KAHN, INC., LIBELLANT-APPELLANT,
v.
THE S.S. PRESIDENT BUCHANAN, HER ENGINES, ETC., AND AMERICAN PRESIDENT LINES, LTD., RESPONDENT-APPELLEE.



Author: Lumbard

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

The purchaser of crude rubber in transit by ship from Singapore to New York has sued the respondent carrier for damage to the rubber, allegedly caused by improper stowage. Judge Walsh, in an opinion delivered orally at the close of the evidence, found for the carrier, except for the minor item of oil damage. The question raised by this appeal is whether Judge Walsh committed error in finding that the damage resulted from the inherent vice of the cargo rather than improper stowage of the carrier.

The S.S. President Buchanan is a cargo ship of the "Victory Ship" class, owned by the appellee, American President Lines, Ltd., and operated by it as a common carrier for hire between the ports of Singapore and New York, among others. On May 15, 1951, the appellee received on board at Singapore the consignment in question. It consisted of 500 bales of flat bark rubber apparently in good condition. A bill of lading to that effect was given to the shipper. The bill of lading specified the total weight of the shipment as 112,000 pounds, "gross and net."

Flat bark rubber is one of the lowest and softest grades of commercial rubber. This shipment consisted of "bareback" bales which means that they had no wrapping, but were merely banded with three steel bands to a bale.

210 bales of the shipment were stowed in three or four tiers in the upper one-fourth of the number 4 forward starboard deep tank on top of some 1,069 other bales of rubber. This deep tank is located immediately aft of the engine room, being separated from it by an unsheathed steel bulkhead. The other bulkheads of the deep tank are formed by the shaft tunnel to port, the number 4 after starboard deep tank to aft, and the skin of the vessel to starboard. Below the deep tank are the double bottom fuel oil tanks and above it is the number 4 lower hold. Two small gooseneck pipes, each having an inside diameter of 2 3/4 inches, extend from the deep tank to the weather deck; the primary purpose of these is apparently to provide for the overflow of liquid cargo. On this trip the cover of the deep tank was raised by four-by-four beams placed across the top of the tanks in order to provide additional ventilation.

The remaining 290 bales of the shipment were stored in the number 5 lower hold on top of a cargo of hemp, separated from the hemp by a canvas tarpaulin. The number 5 lower hold was equipped with ventilators fore and aft.

On June 12, 1951, while the shipment was at sea, the libelant-appellant purchased it, cash against documents, from the original consignee. One of the documents included in the transfer was a clean on board bill of lading. When the President Buchanan docked at New York on July 15th, however, much of the rubber was unloaded in a massed and fused state. The shipment was in such poor condition that part of it could not be discharged bale by bale but had to be cut into pieces and lifted out in chunks. 230 whole bales were delivered along with chunks and pieces which weighed 54,955 pounds. Apparently included among the chunks and pieces requiring reconditioning were 59 additional whole bales which were damaged by oil. A test weighing of 50 of the 230 bales indicated that the total weight of the 230 bales was 50,830 pounds. Thus the total weight of the rubber delivered was approximately 105,785 pounds. The libelant sought to prove that the damage to the rubber flowed from the shipowner's negligence in stowing the cargo. It contended that the number 4 deep tank, because of its proximity to the boilers and because of an alleged lack of proper ventilation, should not have been used for the carriage of rubber.On the other hand the respondent contended that these damages to the cargo were caused by an inherent vice in the rubber.

In the opinion which he dictated at the close of the case and in his additional opinion denying a motion for reconsideration Judge Walsh found that the cause of the deterioration of the rubber was its inherent vice. He relied largely on evidence that flat bark rubber has a tendency to deteriorate, especially if it is improperly dried or more than six months old, and on expert testimony that the stowage in number 4 deep tank was proper stowage. In support of its contention that stowage in the deep tank had caused the damage, the libelant argued that the rubber which had been carried in the number 5 hold was relatively undamaged and that all of the rubber in the number 4 deep tank was damaged, including shipments which did not belong to the libelant. Judge Walsh found, however, that these contentions were not supported by the evidence.

With respect to oil damage Judge Walsh found for the libelant and referred the matter to a commissioner for determination of the amount of damage. From this portion of the decree there has been no appeal.

The libelant argues on this appeal that Judge Walsh's findings are clearly erroneous and further that he improperly placed on the libelant the burden of proving that the damage to the rubber was not the result of inherent vice. Libelant also objects to Judge Walsh's dictating his opinion and failing to make separate findings of fact and conclusions of law.

Judge Walsh's memoranda sufficiently indicate the factual and legal bases for his conclusion. Failure to make separately itemized findings and conclusions is not reversible error under Admiralty Rule 46 1/2, 28 U.S.C.A. so long as the opinion of the trial judge clearly states the findings and conclusions upon which the judgment is based. United States v. Ladd, 4 Cir., 1952, 193 F.2d 929, 930; Koehler v. United States, 7 Cir., 1951, 187 F.2d 933, 938; cf. Kelley v. Everglades Drainage District, 1943, 319 U.S. 415, 422, 63 S. Ct. 1141, 87 L. Ed. 1485. In a case such as this where the issues are relatively simple we believe that the immediate dictation of an opinion by the judge while the evidence and issues are fresh in mind is a salutary practice which saves time and further expense. See also Polarus Steamship Co., Inc., v. The T/S Sandefjord, 2 Cir., 236 F.2d 270.

We are of the opinion that Judge Walsh's findings are not clearly erroneous. There was conflicting evidence on the questions whether some of the damaged rubber came from the number 5 hold and whether all the rubber in the deep tank was damaged. Thus Albert Domergue, the Captain of the President Buchanan, testified that some of the fused rubber came from the number 5 hold and that the rubber under the libelant's in the number 4 deep tank came out all right. Carl E. Megquier, the pier superintendent who supervised the unloading of this shipment, testified that the rubber in the number 5 hold, as well as that in the deep tank, was "badly stuck" and "severely fused." He also testified that the rubber which had been stowed underneath libelant's in the number 4 deep tank came out fairly well and that no consignee other than the libelant took exception to the condition of its shipment. All of this testimony tended to support the conclusions that it was some characteristic of the libelant's rubber, rather than the place of stowage, which caused the deterioration.

Respondent produced evidence that flat bark rubber has a natural tendency to deteriorate with age. Walter Lang testified that after six months flat bark rubber starts to deteriorate badly and that it tends to fuse into a mass. He also testified that deterioration results from a failure to dry the rubber properly and that "discoloration" is evidence of improper drying. The weight certificate prepared for the libelant when the rubber was unloaded contained a notation that there was "discoloration" in the shipment. The libelant ...


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