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July 9, 1976

VANA TRADING CO., INC., Plaintiff,
S.S. METTE SKOU, her engines, boilers, etc., and Flota Mercante Grancolombiana, Defendants and Third-Party Plaintiffs, v. Ove SKOU and International Terminal Operating Co., Inc., Third-Party Defendants

The opinion of the court was delivered by: POLLACK


 POLLACK, District Judge.

 This admiralty cargo suit was brought by Vana Trading Co. (hereinafter "Vana") against the S/S Mette Skou and its timecharterer, Flota Mercante Grancolombiana S.A. (hereinafter "Flota") for alleged damage and loss to a shipment of 5,000 cartons of Colombian yams. Flota impleaded the owner of the vessel, Ove Skou, and the stevedoring company at New York, International Terminal Operating Co., Inc. (hereinafter "I.T.O.") as third party defendants.

 The S/S Mette Skou was time chartered by Flota from her owner, Ove Skou, on a Time Charter form approved by the New York Produce Exchange, with some changes, which was dated April 26, 1974.

 The yams in question were shipped late in the season from Colombia, South America. They had matured in November or December 1973, months before shipment, but were not shipped at that time. Instead, they were allowed to remain in the ground from November or December 1973 until they were harvested in March 1974. After harvesting, they remained in the storage sheds before they were finally packed into the cardboard cartons used for shipping.

 On June 15, 1974, the yams were individually wrapped in unprinted newspaper and packed into the cardboard boxes which contained only two hand holes and a slit for ventilation. The yams were trucked to Cartegena, Colombia. After storage in a government warehouse, they were brought to the pier on June 18, or 19, 1974, subsequent to the vessel's arrival.

 When the Mette Skou arrived at Cartegena, the Charterer informed the vessel's officers that the Charterer had booked 5,000 cartons of yams. At that time, only the deep tanks on the vessel were empty and available for cargo. The shipper examined the deep tanks and the ventilation system which serviced the deep tanks, and did not object to the storage of the yams in the deep tanks.

 At the time that the yams left Cartegena, Colombia, defendant Flota delivered to the shipper's forwarding agent a bill of lading numbered 1, dated at Cartegena, Colombia, June 1974 and signed by Flota's authorized Cartegena Agents, which recited receipt in apparent good order and condition of the 5,000 cartons of yams consigned to the order of Vana at the Port of New York. The Bill of Lading was executed by Flota's authorized Cartegena agents on behalf of Flota; and for and on behalf of the Master of the S/S Mette Skou. The Instituto Colombiano Agropecuario of the Republic of Colombia's Ministry of Agriculture issued a certificate stating that the yams were found to the best of the inspector's knowledge to be substantially free from injurious diseases and pests, and were believed to conform to the current phytosanitary regulations of the United States.

 The proof showed that the shipment together with two other shipments of yams were loaded aboard the S/S Mette Skou, under deck and stowed in the port and starboard No. 3 hatch deep tanks at the direction of the Master.

 The cartons of yams were stowed 10-13 tiers high with 2 x 4's between every third tier. The cartons were set out about eight to nine inches from the wings of the tanks with air channels both fore and aft and athwart ship each about six to ten inches wide. Ventilation was provided by two six inch service pipes which extend at the sides to the main deck. The electrically-operated ventilation system for the deep tanks was run continuously through the entire voyage until the yams were discharged at New York.

 When the vessel arrived in New York on July 1, 1974 at 0700 hours request was made by the vessel's officers to the Charterer, Flota, and to I.T.O., the defendant stevedore, to begin discharge of the yams immediately after arrival. New York was experiencing a heat wave at the time. However, Flota and I.T.O. failed to begin discharge of the cargo until July 2, 1974. After discharge the cartons were placed in I.T.O.'s warehouse, which was not adequately ventilated.

 The yams were delivered by I.T.O. on behalf of Flota in a damaged and cooked condition. At the time of delivery the yams exhibited excessive heat, moisture, sprouting and tissue breakdown. The plaintiff claimed that it attempted to sell the yams to various wholesale dealers but was unsuccessful because the yams were damaged and decayed. The plaintiff also claimed that it dumped the yams but the evidence was inconclusive concerning the extent of the dumping involved.

 Pursuant to the terms of the charter party, the Charterer had the entire responsibility and authority for the load, stow and trim of the cargo under the supervision of the Captain. The charter party did not warrant or express that the No. 3 deep tanks were suited for the carriage of yams, and as between the owner of the vessel and the Charterer, the decision to load yams in the No. 3 deep tanks was ultimately made by the Charterer. The participation of the officers of the vessel in the loading was as the agents for the Charterer Flota, and not for the owner. Nichimen Co. v. M.V. Farland, 462 F.2d 319 (2d Cir. 1972); International Produce, Inc. v. S.S. Frances Salman, 1975 A.M.C. 1521 at 1544-5 (S.D.N.Y. 1975).

 The evidence satisfactorily establishes that the ship was not unseaworthy; that ventilation was not warranted in the charter party but in fact existed and that the ventilation was appropriate in the deep tanks for the shipment of merchantable cargo delivered on board in good condition, properly packed and wrapped. Consequently, the third party claim of Flota against Ove Skou cannot be sustained and is to be dismissed with costs to be assessed against Flota. Ove ...

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