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September 19, 1968

LEVATINO COMPANY, Inc., Plaintiff,
M/S HELVIG TORM, her engines, etc., and D/S Torm A/S, Defendant, and John W. McGrath Corporation, Defendant-Impleaded

Cooper, District Judge.

The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Plaintiff, a New York corporation, instituted this action in admiralty *fn1" to recover for shortage and damage to seven shipments of Spanish melons, *fn2" comprising 12,846 wooden cases, delivered to defendant D/S Torm A/S, a Danish steamship company doing business as a common carrier under the trade name of Torm Lines, at the Port of Alicante, Spain, for transportation to the Port of New York on board defendant's vessel the Helvig Torm. Defendant impleaded John W. McGrath Corporation (hereinafter McGrath), the discharging stevedore, asserting its right to indemnification for any liability imposed on it as a result of McGrath's negligence.

 The action is within the admiralty jurisdiction of this Court. 28 U.S.C. § 1333. The rights of the parties being governed by the Carriage of Goods by Sea Act (hereinafter COGSA), 46 U.S.C. § 1300 et seq., and the Harter Act, 46 U.S.C. § 190 et seq. COGSA covers the period "from the time when the goods are loaded on to the time when they are discharged from the ship." 46 U.S.C. § 1301(e). The Harter Act is applicable to "the period between the discharge of cargo from the vessel and its proper delivery." Caterpillar Overseas S.A. v. S.S. Expeditor, 318 F.2d 720, 723 (2d Cir.), cert. denied, 375 U.S. 942, 84 S. Ct. 347, 11 L. Ed. 2d 272 (1963); Levatino Co. v. American President Lines, 233 F. Supp. 697 (S.D.N.Y.), aff'd, 337 F.2d 729 (2d Cir. 1964); Isthmian Steamship Co. v. California Spray-Chemical Corp., 290 F.2d 486 (9th Cir. 1961).

 There is no substance to the contention that Levation Company, Inc. (hereinafter Levatino) lacks standing to sue. Regardless of the precise terms of the arrangements between Levatino and the Spanish shippers, it is well established that the former advanced between $1.90 and $2.00 per case to each of the shippers. *fn3" These monies have not been repaid. Accordingly, plaintiff has a substantial financial interest in the outcome of this litigation having itself sustained an actual loss as a result of delivery of the melons in damaged condition. *fn4" Cf. Compagnie De Navigation v. Mondial United Corp., 316 F.2d 163 (5th Cir. 1963).

 Additionally, it is well settled that "the agent of absent owners may libel in admiralty, either in his own name or in that of his principals." The Thames, 81 U.S. 98, 109, 14 Wall 98, 20 L. Ed. 804 (1871); Houseman v. The Schooner North Carolina, 40 U.S. (15 Pet.) 40, 10 L. Ed. 653 (1841). "[An] agent's unauthorized act in filing a libel for absent owners may be subsequently ratified by them, and proof of such ratification, made before the decree is entered, will be sufficient." Aunt Jemima Mills Co. v. Lloyd Royal Belge, 34 F.2d 120, 122 (2d Cir. 1929).

 Of the five shippers involved, *fn5" two authorized plaintiff to file suit, *fn6" and one subsequently ratified such action. *fn7" The remaining two shippers neither expressly authorized nor expressly ratified plaintiff's act of filing suit on their behalf; *fn8" one, *fn9" however, considers it "advisable for his interest that Levatino Company, Inc. filed the suit." (Exs. *fn10" 1 and 10.) *fn11"

 Defendant's motion to strike portions of Stephen Levatino's deposition (Exhibit 13) is denied. *fn12" We note that many of the portions objected to by defendant were substantiated by the independent testimony of the shippers.

 On or about December 21, 1960, 12,846 cases of Spanish melons were delivered by six shippers to the pier at Alicante for carriage aboard defendant's vessel. The Helvig Torm arrived at the Port of New York on January 4, 1961. The melons were discharged on January 5th and 6th and placed in a heated pier warehouse at Edgewater, New Jersey. There they were inspected jointly by the parties' surveyors on January 11th and by the United States Department of Agriculture on January 13th, and found to be in damaged condition. The latter's Condition Inspection Certificates (Ex. 19) indicate that when observed on January 13th the melons showed considerable damage by bruising and by watersoaked and translucent flesh; that many if not most of the melons were ripe and firm; that soft melons were present; and that substantial decay, mostly cladosporium and fusarium rot, in advanced stages was present. *fn13"

 3,492 cases were detroyed by dumping at the direction of the Bureau of Customs (Exs. 15 and 16). An additional 1,581 cases were destroyed by McGrath (Ex. 17).

 By agreement of all parties, proof as to damages is to await the determination of liability.

 Under COGSA, plaintiff establishes a prima facie case by showing the good condition of the cargo at delivery and outturn by the vessel, or by the stevedore for whose conduct the vessel is responsible, *fn14" in damaged condition. See M. W. Zack Metal Co. v. S.S. Birmingham City, 311 F.2d 334 (2d Cir. 1962), cert. denied, 375 U.S. 816, 84 S. Ct. 50, 11 L. Ed. 2d 51 (1963); Schroeder Bros., Inc. v. Saturnia, 226 F.2d 147 (2d Cir. 1955); Levatino Co. v. S.S. Hellas, 1966 A.M.C. 40 (S.D.N.Y.); Levatino Co. v. American President Lines, supra. "The burden then lies with the carrier to exculpate itself by proving (a) that the harm resulted from an 'excepted cause', a cause for which it is statutorily not liable, or (b) that it exercised due diligence to avoid and prevent the harm." American Tobacco Co. v. Katingo Hadjipatera, 81 F. Supp. 438, 445, modified on other grounds, 194 F.2d 449 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370 (1952); 46 U.S.C. § 1304.

 Plaintiff sustained its burden of showing the good condition of the melons at the time of delivery to the vessel in Alicante. The evidence presented convincingly established that the melons were carefully selected and inspected; that they were disinfected (with the exception of the melons shipped under Bœ #10); that no scarred, bruised, soft, overripe, diseased, or otherwise defective melons were shipped; that the melons were properly packed in wooden cases with a layer of excelsior surrounding them; and that the cases were delivered to the ship at Alicante in unbroken condition. *fn15"

 Since the melons were delivered to defendant in Spain in sound condition and were received by plaintiff at the port of destination in damaged condition, plaintiff's prima facie case of liability against defendant is established. Levatino Co. v. American President Lines, supra. The burden now ordinarily shifts to defendant "to prove the damage occurred through a cause excepted under the Act or the exercise of due diligence to prevent the harm." M. W. Zack Metal Co. v. S.S. Birmingham City, supra.

 The respective contentions

 Plaintiff, however, undertook to establish the precise causes of the damage sustained by the melons. *fn16" It presented evidence to show that the watersoaked, translucent condition of the melons was attributable to freezing which occurred as a consequence of exposure of the melons to sub-freezing air for several hours while a shipment of tomatoes, belonging to another consignee, were discharged first from the vessel. As for the conditions of bruising and decay, plaintiff endeavored to establish that they resulted, in the main, from improper stackage on the pier.

 Defendant Torm Lines denies that the melons were frozen or that it was negligent to discharge the tomatoes first under the circumstances, and strongly asserts that the bruising and other conditions found in the melons were not due to the stacking on the pier. Defendant contends that the damaged condition of the melons was caused by their own inherent vice (shipping them late in the season) and improper packaging. *fn17"

 McGrath contends that "any damage by freezing, or otherwise, existed on discharge from respondent's vessel at New York" (Pre-Trial Order, December 16, 1964, p. 4). In its Post-Trial Memorandum, McGrath asserts that "it did not bruise the melons and that they were not frozen."

 Damage by freezing

 The Helvig Torm commenced discharging cargo on January 5th at 8:00 A.M. At that time, the forward part of No. 4 hatch was opened and a shipment of tomatoes stowed in reefer spaces was removed. Discharge of the tomatoes was apparently completed by 2:00 P.M. that same day.

 The melons were stowed in Nos. 2, 3, 4 and 5 tween decks and lower holds (Tr. 409).

 Spanish melons freeze at approximately 29 degrees Fahrenheit (F.). During the hours of 8 and 12 on the morning of January 5th the outside temperature ranged between 20 degrees and 28 degrees F. (Ex. 25).

 Stowage in reefer spaces ensured that the tomatoes, unlike the melons, would not be exposed to the freezing temperatures prevailing outside the ship. Therefore, the melons could have been discharged first without subjecting the tomatoes to any unnecessary risk of exposure to sub-freezing air. The only reason assigned by the stevedore for first discharging the tomatoes was that "there was a call from the pier that the tomatoes had been permitted, the trucks would be down to pick them up and there would be immediate delivery" (Tr. 481).

 We are in full agreement with Messrs. Kuhne and Keeler that the melons should have been discharged before the tomatoes (Tr. 135-36; 591-93). *fn18" We are convinced that the stevedore was negligent *fn19" in discharging the tomatoes before removing the melons from No. 4 tween deck and lower hold; *fn20" that order of discharge unnecessarily subjected the melons to the risk of damage as a result of exposure to the subfreezing temperatures.

 While convinced that the order of discharge was improper, we are not satisfied that it proximately caused any damage to the melons; the evidence does not preponderate in favor of plaintiff's contention that the watersoaked, translucent condition ...

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