The opinion of the court was delivered by: POLLACK
The plaintiff seeks to recover the loss arising from damage to a cargo of styrene monomer carried in defendant's vessel from Canada to Europe. Plaintiff claims that it turned over to defendant approximately 1,006 tons of clear water-white styrene monomer and that defendant delivered the chemical at Rotterdam seriously discolored and 11 1/2 tons short of the shipped weight.
The plaintiff is Dow Chemical Company (United Kingdom), Ltd. (hereinafter Dow UK), a British corporation. The defendant is D'Amico Societa Di Navigazione, S.P.A. (hereinafter D'Amico), an Italian corporation, which owns the S/S "GIOVANNELLA D'AMICO". The impleaded defendant is Dow Chemical International Limited, S.A. (hereinafter Dow International), originally a Venezuelan corporation and now a Panamanian corporation; Dow International chartered a portion of the vessel for the shipment.
The subject of the suit, styrene monomer, is a petrochemical used in the manufacture of plastics. Dow Chemical Company of Canada (hereinafter Dow Canada) manufactured the styrene monomer in question at its plant in Sarnia, Ontario. Dow UK bought the styrene there and directed Dow International to ship it to London; later, Dow UK changed the destination to Rotterdam.
The cargo was loaded aboard the GIOVANNELLA on 7 November 1960 at Sarnia and the ship sailed the following day. After a stormy North Atlantic passage, the vessel arrived at Rotterdam on 25 November 1960.
The styrene monomer, as manufactured at Sarnia, was a clear water-white liquid. Plaintiff introduced documentary evidence at trial that the cargo was delivered to the ship at Sarnia in apparent good order and condition and that when delivered at Rotterdam it was a brownish yellow which materially impaired its value. Ordinarily, this would have been enough to establish a prima facie case, leaving the defendant, in order to avoid liability, with the necessity of proving that it exercised due diligence to make the ship seaworthy -- that is, fit for the carriage of the cargo. Schnell v. The Vallescura, 293 U.S. 296, 303-305, 55 S. Ct. 194, 79 L. Ed. 373 (1934).
However, where the cargo may contain a hidden defect or inherent vice present at the time of shipment and not readily discernible, then plaintiff must show delivery to the ship in actual good order and condition in order to establish its prima facie case. Elia Salzman Tobacco Co. v. S. S. Mormacwind, 371 F.2d 537, 539 (2d Cir. 1967); The Niel Maersk, 91 F.2d 932 (2d Cir. 1937).
Dow Canada personnel and their independent cargo surveyor, The Saybolt Company, took numerous samples of the styrene monomer from the end of the loading line and a few samples from the GIOVANNELLA's tanks while the cargo was being put aboard. At least ten of these samples were subjected to more or less complete chemical analysis by a technician at Dow Canada's Sarnia laboratory. However, the logbooks in which the technician's results were originally recorded were not introduced at trial, having been inexplicably destroyed by Dow Canada after the commencement of this litigation. The samples themselves were likewise inexplicably discarded after this controversy had arisen. Nor was the technician himself produced, despite the fact that he was still employed by Dow Canada well after the suit had begun.
Instead, plaintiff introduced at trial a summary table of the results of ten of the chemical analyses, with only four of these being reported in full. This table had been prepared by the supervisor of the Dow Canada laboratory five months after the cargo was loaded aboard the GIOVANNELLA. Plaintiff also introduced a memorandum prepared by this same supervisor shortly before this suit was commenced which set forth the same results in even more conclusory fashion. In addition, plaintiff introduced a letter, dated two weeks after the discoloration was discovered at Rotterdam, from a Dow Canada executive to a "Claims Agent" setting forth a single set of figures, evidently a composite of some sort of the analyses of eleven samples taken from the end of the loading line.
These documents, if credited, would tend to establish the actual good order and condition of the styrene monomer at loading. (A few of the samples taken from the ship's tanks showed some discoloration; these will be discussed further below.)
However, it is well settled that the intentional destruction of a document or object relevant to the proof of an issue on trial can give rise to a strong inference that its production would have been unfavorable to the spoliator. Richardson on Evidence, § 91 at p. 64 (9th ed. Prince 1964); Fisch on New York Evidence, § 1127 at p. 554 (1959). Moreover, where a witness is under the control of a party and could testify, if called, to material facts, the failure to call that witness can give rise to the strongest inference against that party which the opposing evidence permits. This is particularly true where the testimony would be important and where it can be inferred that the witness would ordinarily tend to be favorable to that party. Richardson on Evidence § 92 at pp. 64-65 (9th ed. Prince 1964); Fisch on New York Evidence, § 1126 at pp. 551-552 (1959); 1 Bender's New York Evidence, § 30 at pp. 443-444 (Frumer & Biskind 1968). See also A. C. Becken Co. v. Gemex Corporation, 314 F.2d 839, 841 (7th Cir. 1963); Matter of Eno, 196 App.Div. 131, 163, 187 N.Y.S. 756 (1st Dept. 1921).
In addition, plaintiff introduced into evidence the testimony of another Dow Canada executive and of two Saybolt Company employees on the issue of actual good order and condition. Each of these men had either visually examined some samples taken during loading or studied them in the Dow Canada laboratory for color purity. However, examination for color did not necessarily rule out inherent vice, latent defect or other intervening cause of discoloration of the cargo. The proof did not indicate that these further samples were subjected to complete chemical analysis in addition to their examination for color.
At the close of plaintiff's case, defendant moved to dismiss for failure to establish a claim upon which relief could be granted. The Court reserved decision and the defendant then went forward in the discharge of the burden cast upon it by the plaintiff's proofs. The evidentiary problems discussed above thereupon became largely academic on the evidence presented by defendant affirmatively establishing the actual cause of the damage to the cargo and defendant's freedom from negligence.
Plaintiff's claim in this case is that the GIOVANNELLA was unseaworthy due to contamination in her No. 5 port and starboard tanks from a previous cargo.
Defendant introduced into evidence documents and testimony indicating that the No. 5 port and starboard tanks of the GIOVANNELLA had been cleaned and inspected three times prior to loading the cargo and found fit for the carriage of styrene monomer. The cleaning methods included extensive "butter-worthing" followed by hand scraping.
The National Cargo Bureau inspected the tanks at the Port of Duluth after the initial cleaning was accomplished following discharge of the prior cargo of benzine. The National Cargo Bureau surveyor issued a certificate "to indicate preparedness of Tanks for STYRENE MONOMER cargo to be loaded at Sarnia and subject to approval by Surveyors at port of loading".
Cleaning of the tanks was continued on the trip from Duluth to Sarnia. Upon arrival, a Saybolt Company representative, acting for Dow Canada, inspected the tanks, found them fit for loading, and issued a certificate to that effect. However, a Dow Canada executive inspected the tanks and demanded more cleaning. This was done. After re-inspection, Dow Canada issued a certificate attesting that "Tank No. 5, Port and Starboard, on the tanker 'Giovannella D'Amico' was prior to loading Styrene Monomer inspected and found to be clean and dry and satisfactory to load above-mentioned cargo".
Plaintiff attacked the validity of this certificate on the ground that its inspectors were not fully informed as to the previous cargo in those two tanks of the GIOVANNELLA. It is undisputed that, prior to the styrene monomer, the No. 5 port and starboard tanks had contained benzine which had been used to flush out the dirty tanks of another vessel, the M/T COASTAL CARRIER. Cross-examination of plaintiff's witness, an independent cargo surveyor involved in the transfer of the benzine between the two ships, established that the benzine was owned by the Dow Chemical Company (of the United States), evidently the parent Dow company. A representative of that company had been present when the benzine was transferred from the GIOVANNELLA into the dirty tanks of the COASTAL CARRIER and then back into the GIOVANNELLA. This was done pursuant to an agreement between Dow and the owners of the COASTAL CARRIER.
The cargo surveyor acted at the request of and made his full report to T.J. Stevenson & Co. of New York, ship agents and brokers. Defendant introduced the testimony of a Dow International executive which established that T.J. Stevenson & Co. and its subsidiaries acted for Dow International in finding ships for the latter's cargoes; that T.J. Stevenson & Co. or one of its subsidiaries suggested and helped arrange the charter of the two GIOVANNELLA tanks for the styrene monomer; that Dow International inquired of and was advised by T.J. Stevenson & Co. or one of its subsidiaries as to the cargo previously in those two ...