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March 30, 1972

M.V. "CALANCA", her engines, boilers, etc., and St. Gotthards Schiffahrts A.G., Defendants

Brieant, District Judge.

The opinion of the court was delivered by: BRIEANT

BRIEANT, District Judge.

This cause was tried before the Court, without a jury, on December 21, 1971, and has been fully briefed.

 The complaint, verified June 24, 1966, was filed by Atlantic Banana Company, a Florida corporation, suing in its own behalf, and for the benefit of Pan American Fruit Company, for which it acted as agent in connection with the shipment of bananas from Puerto Bolivar, Ecuador, and, more specifically, as agent in connection with prosecuting this claim for damages to the bananas.

 Defendant is the owner of the M.V. "CALANCA". It is a Swiss corporation, not present in this District. The CALANCA is said to be of Swiss registry, a merchant marine counterpart of the legendary Swiss Navy.

 The owner answered the complaint by a pleading verified January 24, 1969. No claim of owner with respect to in rem jurisdiction was filed. However, after the evidence had been taken by the Court, the parties stipulated in writing that defendant's objection to in rem jurisdiction be withdrawn, and a claim of owner is deemed to have been filed. It was further stipulated that claimant's answer shall be deemed "the same as that of the vessel owner, now on file" (Stipulation and Order dated January 3, 1972). It was also stipulated at the same time that a Charter Party dated January 17, 1963, between defendant and Cornell Shippers, which Charter Party had been assigned to Federal Transport Co., and admitted into evidence as Exhibit B, be withdrawn as an Exhibit, and "neither party will claim against each other under the Charter Party."

 It was agreed that the sole issue to be tried is that of liability. Damages are to be settled by agreement, and, in the absence of agreement, the issue is to be tried separately.

 The CALANCA was a diesel driven, propeller operated motor ship with electrically operated refrigeration, particularly adapted to the banana trade. She had been regularly engaged for some time in the carriage of bananas under refrigeration from Central American ports to South Atlantic and Gulf ports of the United States. Not being powered by steam, she was dependent on electricity for operating the ship's gear and the refrigeration.

 Bananas are regularly carried from Central American ports to the United States in refrigerated ships. They are loaded at an ambient temperature between 74 and 78 degrees Fahrenheit, and must be brought down as promptly as possible to approximately 52 degrees Fahrenheit, and are thereafter carried during the voyage at that temperature, and so maintained until discharge. This delays the ripening of the bananas, which are cut green, for about six to ten days, for purposes of transportation and exposure to sale. The practice, known to defendant and its Master, is to cut bananas specifically for a shipload, since they must be loaded within 10 to 24 hours of cutting, including an allowance for time in transportation from the plantation to the pier. During pre-cooling, prior to and during loading and stowage, a temperature of 35.5 degrees Fahrenheit is established, to bring the cargo down to the required temperature for the carriage.

 The CALANCA had three diesel operated electric generators coupled to transformers and related linkage, termed as "Auxiliary I, II and III," generally used for the generation and application of all the electrical energy on shipboard. As noted, the same electricity which operated the vessel also operated the refrigeration. It was possible for the vessel to navigate, and to pre-cool for and refrigerate a newly loaded cargo with two working generators, and the third generator, in effect, constituted a reserve supply of power.

 In a prior voyage from Cristobal to Gulfport on June 18, 1965, while carrying a cargo of bananas originating at Guayaquil, one of the transformers had failed in connection with one of the three available units of electrical generating equipment known as Auxiliary No. I.

 The Master caused the inoperative transformer to be removed from the vessel for repairs at Gulfport. The part had not been returned or replaced when the vessel broke ground for Puerto Bolivar on June 22, 1965, so that when the vessel arrived in Puerto Bolivar she had only two operative generators. The charterer had nominated the vessel to go to Puerto Bolivar to load a particular cargo of bananas, and plaintiff, and its assignor, Pan American Fruit Company, had, by cable, directed its Guayaquil agent, Bananas, S.A., to cut and ready for shipment 37,545 boxes or cases of bananas, each at 43 lbs. net weight, for the CALANCA. When the vessel arrived at the pier, these bananas had been cut and were on the pier, ready to be lifted by the CALANCA. The CALANCA had commenced pre-cooling her cargo holds, and at 1330 hours on June 30th, loading was commenced. Both generators were working adequately, but the third generator, No. I, remained inoperative since prior to leaving Gulfport. The temperature in the holds was satisfactory when loading was commenced.

 The usual tally sheets were being prepared, and as to these, the Master or his duly authorized agent was a participant.

 Loading and stowage of the bananas was commenced, with leave of the Master at 1330 hours on June 30, 1965, by a stevedore designated by plaintiff's Guayaquil agent. At 1836 hours on that day, the electrical equipment of Auxiliary No. III failed. It was ascertained that the rectifier was inoperable and pitted. Efforts to make repairs at Puerto Bolivar were unsuccessful and attempts to reconstruct the inoperable rectifier with parts taken from Auxiliary I, as well as attempts to shift the transformer from No. III Auxiliary into the No. I to replace that component which, as noted, had been removed at Gulfport, were also unsuccessful. While the vessel's officers and men were attempting to effectuate emergency repairs, the loading continued until 2300 hours on June 30, 1965, when it was finished for the day.

 The Master recognized the existence of an emergency. His attempts to reach the local representative of Bananas, S.A., which began at 0050 hours on July 1st, were unsuccessful, until 0800 hours on July 1st, when the Master informed Bananas, S.A. in Guayaquil of the emergency, and asked for "the best electrical engineer with all spare parts available." An engineer, Mr. Lovinger, retained by plaintiff's agent, arrived at 1100 hours on July 1st. His attempts to reestablish the electrical supply were unsuccessful.

 In the meantime, on July 1st, the loading of the bananas continued into hatches which the Master believed, correctly, could be refrigerated with only one Auxiliary working, but at 1145 hours, the Master refused to allow the loading of bananas to begin in Hatch No. 1, as this area could not be refrigerated unless at least two of the Auxiliary generators were operating. Those other hatches which had been fully loaded with bananas were properly closed and the temperature maintained. On the morning of July 2nd, the Master again refused to accept further cargo aboard the ...

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