The opinion of the court was delivered by: BONSAL
Plaintiff, as subrogee to the rights of the owners of the cargo, seeks to recover damages from the defendant on the ground that most of the cargo was lost while being carried on defendant's vessel. At the trial, plaintiff established that the cargo, consisting of 47 drums containing synthetic latex and 35 drums containing gasoline additive, was delivered aboard defendant's vessel, the S.S. FLYING TRADER, in Baltimore and New York, for shipment to Bombay, India; that defendant issued clean bills of lading for the cargo; and that, with the exception of 4 drums of the gasoline additive, the cargo did not reach its destination. Thus, the burden was on the defendant to prove that the loss was due to an excepted cause under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1304, or that it exercised due diligence to avoid the loss. 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); Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426 (2d Cir. 1962); Levatino Company v. M/S Helvig Torm, 295 F. Supp. 725 (S.D.N.Y.1968); American Tobacco Co. v. The Katingo Hadjipatera, 81 F. Supp. 438 (S.D.N.Y.1948), mod. 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).
Excepted Causes under COGSA
Sections 4(2)(a) and (n) of COGSA, 46 U.S.C. § 1304(2)(a) and (n), provide:
"(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from -
(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;
(n) Insufficiency of packing."
At Baltimore, the Firestone Tire & Rubber Company shipped 47 drums of synthetic latex to its affiliate in Bombay, India, the Firestone Tire and Rubber Company of India, Limited. On May 29, 1963, defendant issued its clean bill of lading. The 47 drums were stowed, one drum high, across the forward end of the upper 'tween deck of the No. 1 hold. The FLYING TRADER proceeded to Philadelphia and then to New York.
At New York, Esso International, Inc. shipped 35 drums of gasoline additive to its affiliate in Bombay, India, the Esso Standard Refining Company of India, Limited. On June 7, 1963, defendant issued its clean bill of lading for the shipment, which was loaded aboard the FLYING TRADER in the aft end of the lower 'tween deck of the No. 1 hold. Three large tanks were stowed forward of the drums, for discharge at Kandla, the port immediately before Bombay.
Additional cargo was stowed in the upper 'tween deck of the No. 1 hold: (1) 1664 bags of silicon for discharge at Alexandria, on top of the drums of latex; (2) general cargo for discharge at Genoa and Beirut, just aft of the drums of latex; (3) canned goods and boxed parts for discharge at Beirut, and additional bags of silicon for discharge at Alexandria, in the after end of the upper 'tween deck of the No. 1 hold.
The FLYING TRADER sailed from New York on June 8, 1963, calling at Barcelona, Genoa, Beirut and Alexandria. When she sailed from Alexandria, only the 47 drums of latex remained in the upper 'tween deck of the No. 1 hold, together with a shipment of 25 drums of "Plasticiser," loaded at Alexandria for discharge at Bombay.
The FLYING TRADER sailed from Alexandria on July 2, 1963. She went through 3 days of swells on July 8, 9, and 10, 1963, rolling continuously at angles of from 3 to 24 degrees. She arrived at Karachi Roadstead on July 11, and anchored at 0037 about 3 miles off the Manora Point Lighthouse, at a bearing of about 30 degrees, to await the pilot; which at anchor she was rolling up to 35 degrees in a deep swell.
At 0530 hours the pilot boat approached, and the vessel first took a position off Manora Point at a bearing of about 30 degrees to the Manora Point Lighthouse, so that the wind and the heavy southwesterly monsoon swells, which were reaching up to 20 feet, were on her port quarter. The pilot came alongside the starboard side, but could not board because of the heavy rolling the FLYING TRADER was undergoing, and he "ordered" Captain Mountain to change her position, so that the sea was to her stern. This position was also unsatisfactory to the pilot and he again "ordered" Captain Mountain to change position. The pilot then boarded the FLYING TRADER from her port bow, at 0614 hours. In this third position, the sea was to the starboard quarter of the FLYING TRADER, she was rolling up to 40 degrees, and she was in the trough of the sea.
Captain Mountain's deposition indicates that he had made 50 voyages to the Port of Karachi, and that the weather on this voyage was more severe than usual. He stated that a Victory ship such as the FLYING TRADER would roll heavily when the sea and wind are to her starboard quarter, which was her position when she picked up the pilot. When the vessel picked up the pilot, she was in the trough of the sea, that is, lying obliquely or at right angles to the sea, and he "wouldn't maneuver in this position, you know. This is my requirement to embark the pilot. Pilot's orders." Finally, he said that a British vessel about half a mile to the southeast of the FLYING TRADER had attempted to board a pilot, failed, and stood out to sea, heading her bow into the swells, to return when the seas abated.
After the pilot boarded, he told Captain Mountain that something was loose in the holds, as did the Chief Officer. The FLYING ...