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WABCO TRADE CO. v. S.S. INGER SKOU

October 24, 1979;

WABCO TRADE COMPANY, DIVISION OF WORLD STANDARD EXPORT, LTD., Plaintiff,
v.
S.S. INGER SKOU and S.S. AMARYLLIS, their engines, boilers, etc., GCC SHIPPING CO., LTD. d/b/a CONSTELLATION LINE, and CONSTELLATION NAVIGATION, INC. Defendants.



The opinion of the court was delivered by: SWEET

Wabco Trade Company ("Wabco"), a Delaware Corporation has sued GCC Shipping Co., Ltd. ("GCC"), a Greek corporation, and Constellation Navigation, Inc. ("Constellation"), a New York corporation, for damages in the amount of $ 212,984.96, plus interest and the cost of this action, resulting from the loss of four motor graders. This court has subject matter jurisdiction under 28 U.S.C. § 1332 and Rule 9(h), Fed.R.Civ.P.

The parties have stipulated to most of the operative facts, and those that are contested have been decided upon the submission of exhibits. This court finds that plaintiff shipped four motor graders from Charleston, South Carolina aboard the S.S. INGER SKOU, bound for Beirut, Lebanon. Defendant GCC was the common carrier for transport of the motor graders from Charleston. Constellation was the agent of GCC, and issued a negotiable bill of lading for the shipment of Wabco's four motor graders.

Due to political disturbances in Beirut, the INGER SKOU discharged plaintiff's motor graders at Piraeus, Greece on or about October 20, 1975. Shortly thereafter, Constellation sent the following undated letter to Wabco:

 
Dear Sirs:
 
We very much regret to advise that because of the current state of affairs in Beirut we have been compelled to discharge the captioned cargo at Piraeus, Greece. While we have taken this step pursuant to our rights under clauses 5 and 6 of the bill of lading, and reserve all of our rights under said bill of lading and those clauses, it is our intention for the time being to bear the expense of storage at the Piraeus Free Zone in the hope that the situation in Beirut will stabilize in the reasonably near future and the cargo can be reloaded onto one of our vessels and transshipped to Beirut. Although we shall pay the cost of storage, all risk during this storage is and will continue to be for the account of cargo.
 
If there is any change in this arrangement, or if final delivery will in fact have to be made at Piraeus, we shall notify you.

 Exhibit 62.

 On December 3, 1975, Wabco instructed Constellation to hold the motor graders in Piraeus until Wabco advised Constellation of a further destination. (Exhibit 68). Orestes Christophides, Constellation's manager and part owner, testified that he forwarded a photocopy of plaintiff's letter to GCC in Greece and that he agreed orally that GCC would hold the goods in Piraeus. (Christophides Dep. p. 52). GCC made no written reply, but did hold the graders in Piraeus for three months following Wabco's request on December 3.

 In early March, 1976, GCC, without notifying Wabco or the consignee designated in the bill of lading, transshipped the goods from Piraeus to Beirut on board the S.S. AMARYLLIS. The graders arrived in Beirut on March 11, 1976; GCC's agent in Beirut took custody of the goods and delivered them to the Beirut Port Authority in exchange for a warehouse receipt.

 The evidence indicates that Wabco did not learn of any change in status of its goods until March 26, 1976, over two weeks after arrival of the goods in Beirut. Wabco did not verify that its goods had been sent on until March 31, 1976, over three weeks after the date of shipment from Piraeus.

 The government warehouse in which the graders were bailed was apparently ransacked, the graders seized, and, despite efforts by the parties, were never recovered. There is some suggestion that they were used as armored vehicles during the civil disorder.

 GCC, the carrier, has asserted that the bill of lading remained in force following the discharge of the graders in Piraeus, and that GCC acted in accordance with the bill in transshipping the goods to Beirut. Wabco, the shipper, has urged that the contract of carriage contained in the bill of lading was terminated when the graders were discharged in Piraeus and notices were exchanged by GCC and Wabco and that the subsequent onshipment to Beirut constituted an unjustified conversion. In light of the unique circumstances presented here, GCC will bear the damages resulting from the loss of the graders.

 GCC relies upon clauses 6(a) *fn1" and 7 *fn2" of the original bill of lading. These clauses permit the carrier to divert cargo to an unscheduled port to avoid risk of damage to the ship, to store the goods at shipper's expense, and to act as forwarding agent in transshipping the goods by any means. GCC urges that it did no more than fulfill its duties under its contract of carriage by discharging the goods in Piraeus, holding them for four months, and then transshipping to Beirut without further notice to Wabco.

 In fact, the parties agreed otherwise, and the contract of carriage was terminated in Piraeus. When GCC notified Wabco that it had discharged the goods in Piraeus in late October, it stated that it intended to ship the goods on to Beirut "in the reasonably near future." GCC specified that although it would pay the cost of storage "for the time being," "all ...


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