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January 30, 1959

Anthony LEVATINO, Stephen Levatino and Joseph Levatino, d/b/a Levatino Company, Plaintiffs,
GENERAL STEAM NAVIGATION CO., LTD., OF GREECE and Greek Line and Trans-Atlantic Shipping Corporation, Defendants

The opinion of the court was delivered by: HERLANDS

This is an action by a firm of chestnut importers against the owners of the Olympia. *fn1" Plaintiffs seek to recoup from defendant the damages that plaintiffs say they suffered when the wholesale market price of imported chestnuts dropped 40 per cent shortly after October 6, 1955.

The springboard for plaintiff's claim is the undisputed fact that all of plaintiffs' 2,020 cases of chestnuts were not unloaded from the Olympia on October 5, 1955, the same day that the Olympia arrived in New York.

On Wednesday, October 5th, the Olympia, arriving on schedule, docked at North River Pier 88 at 8:07 a.m. and commenced discharging cargo at 9:00 a.m. For the next ten hours, until 7:00 p.m., the Olympia was engaged without interruption in discharging cargo, which consisted of general cargo, tomatoes, and chestnuts. There were 5,000 cases of chestnuts aboard, constituting eighteen different lots, consigned to seven New York importers, including the plaintiffs. The plaintiffs had four lots totaling 2,020 cases.

 At 7:00 p.m. the Olympia stopped discharging cargo in order to go into drydock. It left Pier 88 'without engines' (without power) and was tugboated to the Bethlehem Yards for dry-docking examination and repairs.

 By the time the Olympia left Pier 88 it had discharged a considerable portion of its cargo, including 775 cases out of plaintiffs' total of 2,020 cases, as well as chestnuts for other consignees. There is no suggestion that the defendant followed an improper sequence of unloading or that defendant discriminated in its unloading orders.

 The Olympia returned to Pier 88 on Friday, October 7th, and at 7:15 a.m. resumed discharging cargo, including plaintiffs' balance of 1,245 cases.

 Plaintiffs charge that it was defendant's culpable fault and negligent delay in failing to discharge all of plaintiffs' chestnuts before the Olympia went into drydock on the night of October 5th that prevented plaintiffs from carrying out their intention to sell their chestnuts at the public auction held on Thursday, October 6th, which would have been before the sharp break in the market price.

 Plaintiffs assert that it is settled custom in the Port of New York for steamships carrying chestnuts to work overtime and even 'around the clock' if necessary, in order to discharge a cargo of chestnuts. This alleged maritime custom, the plaintiffs say, is an outgrowth of the mercantile practice of selling chestnuts at public auction on Tuesdays and Thursdays.

 This public auction operation involves the following features: when cargo is landed it must be inspected by United States Plant Quarantine inspectors and cleared through Customs. Samples, consisting of five cases for each shipment and each grade of nuts, must be taken and brought to another pier where the auction will be held commencing at about 3:00 a.m. on Tuesdays and Thursdays. A printed catalog of all items to be auctioned is prepared by the auctioneers. Sellers must submit such information as amounts and quality to the auctioneers by 5:00 p.m. on the day before the sale, which in this case would have been 5:00 p.m. on Wednesday, October 5th.

 There is grave doubt whether the plaintiffs actually intended to sell the chestnuts at a public auction to be held on October 6, 1955. The conduct of the plaintiffs and their dock representatives is, in the Court's opinion, inconsistent with such intention. The plaintiffs and their representatives did not make reasonably appropriate inquiries of available and informed pier and ship personnel, such as the ship foreman, the dock boss and the pier superintendent. The plaintiffs left the pier prematurely while cargo was being discharged. They made no arrangements for Plant Quarantine inspectors' examination and sampling of the cases still to be discharged.

 The Court does not accept the testimony offered in behalf of the plaintiffs that they or their representatives were told at about 3:00 or 3:30 p.m. by the delivery clerk or the dock boss or the inward freight agent that the vessel would stop discharging cargo at 5:00 p.m. The contrary evidence adduced by the defendant is convincing. The plaintiffs were not told that the vessel would cease discharging operations at 5:00 p.m. or thereabouts.

 It was plaintiffs' responsibility to keep themselves advised of the status and progress of the cargo discharging operation. There was no obligation upon the vessel to take affirmative steps by issuing bulletins or periodic reports or otherwise to keep all of its consignees au courant. The plaintiffs should have had their dock representatives remain on the pier. Instead, Edward Bovino, one of plaintiffs' dock representatives, walked off at 5:00 p.m. while the discharging operation was still under way and after 120 to 140 cases of plaintiffs' chestnuts had already been landed on the pier. The plaintiff Stephen Levatino left the pier at 4:00 p.m.

 The evidence presented by the plaintiffs as to the alleged custom or usage relating to cargoes of chestnuts whereby ships work 'around the clock' to discharge such cargo was discredited by the defendant's more reliable and impressive testimony to the contrary. Since in fact there was no such custom, it is not necessary to decide the question of law whether any such custom would be binding on the defendant. See Carver, Carriage of Goods by Sea (10th ed., 1957) pp. 686, 689, 690, 692.

 The defendant acted carefully and prudently throughout. The plaintiffs have failed to sustain their burden of proving by the weight of credible evidence that any acts of the defendant, whether of omission or commission, were negligent or that the defendant was at fault or failed in the performance of any statutory duties and obligations. 46 U.S.C.A. § 1303(2, 8). The defendant and its engaged personnel worked beyond and more than the regular hours.

 The vessel was at all times seaworthy. The dry-docking arrangement and its timing were reasonable and proper. That the vessel went in, as it did, for examination and repairs did not violate any obligation owing to the plaintiffs. The vessel discharged 775 of plaintiffs' cases on October 5, 1955; and these were delivered to plaintiffs when they called for them the next day, notwithstanding the fact that plaintiffs had paid freight charges for only 500 cases.

 The great bulk, if not the entire balance, of plaintiffs' lots was covered by bills of lading (numbered 17 and 19), representing chestnuts that were stowed in refrigerated or chilled space in hatches No. 2 and No. 3. There is no claim of spoilage. The defendant worked the hatches properly and carefully in all respects.

 Under the circumstances of this case, dry-docking was not an unreasonable deviation. The dry-docking was effected with diligence, and the vessel was returned to its pier and resumed discharging of cargo by the morning of Friday, October 7, 1955. The defendant acted at all times with proper care and dispatch.

 Moreover, the bills of lading herein covered the contingency of dry-docking (cf. Knauth, Ocean Bills of Lading (4th ed., 1953) 265-266). What was done by defendant satisfied the statutory criteria of 'properly and carefully' discharging the plaintiffs' cargo. 46 U.S.C.A. § 1303(2).

 In view of the entirely proper manner of all of defendant's operations arrangements (including dry-docking), the dry-docking clauses in the four bills of lading covering the plaintiffs' shipments were not rendered inoperative by the provisions of 46 U.S.C.A. § 1303(8).

 If, arguendo, the dry-docking be characterized as a 'deviation', it was a 'reasonable deviation.' 46 U.S.C.A. § 1304(4). See Gilmore and Black, The Law of Admiralty (1957) pp. 158-159.

 The dry-docking had to be performed at the hours in which it was done because the state of the tide must be taken into consideration as an essential part of the operation. The defendant did not act arbitrarily or improvidently.

 Moreover, even if the vessel had remained at Pier 88 on October 6th, it is highly doubtful whether the vessel would have been justified in discharging all of the chestnuts in view of the heavy rain, especially during the hours from 5:00 a.m. to 1:00 p.m. on October 6th. (Exhibit 9, Weather Bureau report.) Had the vessel undertaken to discharge chestnuts in the rain there would have been strong likelihood that the vessel would be liable for any damage to the nuts notwithstanding any exculpatory clauses in the bills of lading. Meyer & Brown, Inc. v. Cunard Steamship Co., Ltd., D.C.S.D.N.Y., 1924 A.M.C. 873 (not officially reported); The Africa Maru, 2 Cir., 1932, 54 F.2d 265.

 In this case, the plaintiffs have failed to show that any alleged unseaworthy condition was causally connected with the plaintiffs' alleged loss. See The Temple Bar, D.C.D.Md.1942, 45 F.Supp. 608, 613, affirmed 4 Cir., 1943, 137 F.2d 293; Hartford & New York Transp. Co. v. Rogers & Hubbard Co., D.C.D.Conn.1930, 40 F.2d 954, affirmed 2 Cir., 47 F.2d 189, certiorari denied 283 U.S. 835, 51 S. Ct. 483, 75 L. Ed. 1446.

 Even if it be assumed arguendo that the vessel had the burden of proving that it had acted reasonably and had not been guilty of any unreasonable delay in unloading, the defendant more than sustained that onus probandi. The duty resting on the defendant was to unload the cargo within a reasonable time and in a reasonable manner; and this duty was owing to all shippers and not merely to the plaintiffs. See United States Shipping Board Emergency Fleet Corporation v. Florida Grain & Elevator Co., 5 Cir., 1927, 20 F.2d 583, 585; New York & Porto Rico S.S. Co. v. Guanica Centrale, 2 Cir., 1916, 231 F. 820, 826. The defendant fully performed that duty.

 It appears clearly that the plaintiffs did not pay the freight charges for the portions of their cargo covered by bills of lading numbered 17 and 19 (Exhibits 6c and 6d) until October 7th and October 10th, by checks issued on October 6th and October 7th (Exhibits 14 and 16). Plaintiffs had paid freight charges on October 5th for only the 500 cases represented by bills of lading numbered 14 and 16 and which cases were included within the 775 cases discharged on October 5th.

 It is not necessary to decide whether the bills of landing were effectively modified by the unauthorized oral agreement by defendant's inward freight clerk to permit plaintiffs to take cargo for which freight charges were unpaid. Regardless of that feature and assuming but without deciding that credit had effectively been extended to the plaintiffs, the ...

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