The opinion of the court was delivered by: TENNEY
This is a suit by Eutectic Corporation (a New York corporation) ("Eutectic") against defendant shipowner Norton Line ("Norton")
to recover for the loss of a complete shipment of 93 cases of nickel core wire carried aboard the M/V Gudmundra from Santos, Brazil in August 1969, and discharged at the port of New York. The shipowner, Norton, impleaded its stevedore/terminal operator, International Terminal Operating Co., Inc. ("International"), seeking indemnity for any liability to Eutectic resulting from the loss, together with counsel fees and expenses.
By stipulation of all parties at the commencement of the trial, plaintiff Eutectic agreed that its damages would be fixed in the amount of $38,000 and that this sum would be payable to it from either the defendant shipowner Norton or the third-party defendant stevedore/terminal operator International.
1. On July 30, 1969, the M/V Gudmundra arrived at Santos, Brazil, its last port of loading in South America, before sailing for ports on the east coast of the United States.
2. On July 31, 1969, the 93 cases of nickel core wire were loaded aboard the vessel in the No. 4 upper 'tween deck. The 93 cases were "tallied" on board at the time of loading (TPP Exh. 6)
and a short form bill of lading, incorporating the provisions of the long form bill of lading and indicating Eutectic as consignee was issued by Norton (TPP Exh. 5). The Chief Mate also issued a receipt for the 93 cases (TPP Exh. 7). The vessel's manifest listed them as aboard as did the stowage plan (TPP Exh. 8, 9). The wire was packed in wooden cases approximately 2' X 1' X 10" and the 93 cases had a total weight of 22,550 pounds (TT at 53,
TPP Exh. 5). No other shipments of cases of nickel core wire were loaded aboard the vessel for discharge at ports on the east coast of the United States. Most of the cargo loaded at the South American ports consisted of bags of coffee and cartons of corned beef.
3. The vessel sailed from Santos on August 1, 1969 and arrived at Jacksonville, Florida on August 15, 1969 where she discharged bags of coffee and cartons of corned beef. She departed for New York on August 16, 1969 and arrived at New York on August 16, 1969 (TTP Exh. 2, at 12).
4. Before the vessel arrived at New York, International was furnished with a copy of the ship's manifest (TPP Exh. 8), which showed both the marks on the cases and exactly the number of cases to be discharged by the stevedore, and a copy of the stowage plan (TPP Exh. 9), which showed where the cases were stowed (TPP Exh. 3, at 14-15, 20, 28-30). International prepared from the manifest a sorting sheet listing all the New York cargo to be discharged, including the cases of wire in question (TPP Exh. 3, at 11-13).
5. Under the terms of a written agreement between Norton and International (TPP Exh. 10, para. 3), International was to supply complete terminal services, including labor for clerking, checking, watching and delivering. International also agreed to break out of stow, discharge, place and tier cargoes on its pier (id., para. 3), and to provide sufficient personnel to perform the work, including watching service (id., para. 5(b)).
6. The vessel docked at Pier 21, New York, on Tuesday, August 21, 1969, at 6:45 P.M., she had discharged her New York cargo and sailed on the latter date at 7:40 P.M. (TPP Exh. 2, at 12-15). No tally was made of the cases of wire (TT at 26). However, the vessel's delivery receipt, prepared by International, lists 93 cases of nickel core wire consigned to Eutectic as received in good order from on board the M/V Gudmundra but never delivered to the consignee, with the notation "Not Found" (TPP Exh. 11, TT at 23-24). At no time prior to the departure of the vessel did International or anybody else report any shortage to the vessel (TT at 47-48).
7. The cases were first placed in a locked crib in warehouse B at Pier 21. Such a crib is the safest place at the pier (TT at 42). However, some time prior to Friday, August 29, 1969, the consignee called for the cases and they were taken out of the crib and placed in an open "farm" in front of the delivery office. The consignee did not have the proper papers and, therefore, delivery was not made. The cases, however, were not returned to the crib. Rather, they remained in Warehouse Shed A "shortline" where small cases are received or delivered (TT at 42-46, TPP Exh. 2, at 95-96). The cases were last seen in this area at 4:20 P.M. on Friday, August 29, 1969. The terminal was closed over the Labor Day weekend and pier operations resumed on Tuesday, September 2, 1969, at which time it was discovered that the cases were missing. (TPD Exh. A and D).
8. Although Pier 21 was officially closed for the holiday weekend at 11:00 P.M. on Friday, August 29, 1969, longshoremen were assigned to continue loading M/V Gudmundra (on a subsequent voyage) until 2:10 A.M., Saturday, August 30, 1969 (TPD Exh. D).
9. When the loss was discovered, the M/V Gudmundra was searched at the port of Savannah, Georgia to investigate the possibility that the cases might have been reloaded aboard the vessel in error. The cases, however, were not found.
10. Approximately 18 to 20 guards were normally on duty on Pier 21. However, on Sunday, August 31 and Monday, Labor Day, September 1, 1969 ...