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PHILIPP BROS. v. MV "SABOGAL"

June 3, 1980

PHILIPP BROTHERS, DIVISION OF ENGELHARD MINERALS AND CHEMICALS CORPORATION, Plaintiff, against MV "SABOGAL", her engines, boilers, etc. and COMPANIA PERUANA DE VAPORES S.A., Defendants.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

Plaintiff Philipp Brothers brings this admiralty suit against defendant Compania Peruana de Vapores S.A. ("CPV") and its vessel, the M/V SABOGAL, to recover damages allegedly suffered by shipments of bagged wolfram ore during ocean carriage on board the SABOGAL from Matarani, Peru to New York in October-November, 1974. CPV denies any liability. After a bench trial, and consideration of the testimony of the witnesses, the depositions, exhibits, and the presentations of counsel, the Court enters the following Findings of Fact, Discussion, and Conclusions of Law.

FINDINGS OF FACT

 Plaintiff Philipp is a domestic corporation with an office at 299 Park Avenue, New York, N. Y., and is an importer and seller of various ores.

 Defendant CPV is a Peruvian corporation, engaged in the common carriage of goods by water for hire, and at the pertinent times owned the M/V SABOGAL, a general cargo and container vessel with five cargo holds.

 Plaintiff had a contract with Corparacion Minera de Bolivia ("Comibol"), pursuant to which Comibol supplied wolfram ore to plaintiff from Comibol's Bolsa Negra and Kami mines, located in the interior of Bolivia. The shipments in suit consist of eight lots originally emanating from the Kami mine, and one lot from the Bolsa Negra mine.

 It was Philipp's practice to accumulate ore purchased from Comibol at the warehouse facilities at the port of Matarani, Peru owned by Compania de Lanchas, plaintiff's forwarding agent at that port. Lanchas would then load quantities of ore on board designated vessels, as directed by Philipp.

 The evidence with respect to the shipments in suit shows that, in accordance with customary practice, the ore was bagged by Comibol at its mines, and sent by truck to the port of Matarani, for warehousing and ultimate loading into a vessel. Plaintiff's agent in Bolivia, Somco Ltd. at La Paz, gave written notice (DXA) to plaintiff's traffic officer in New York that the nine lots ultimately destined for the SABOGAL had been dispatched by trucks from the mines on July 29, 1974 (two lots of 600 bags each); on August 15, 1974 (three lots, one of 437 bags and two of 600 bags each); on September 6, 1974 (one lot of 600 bags); on September 20, 1974 (one lot of 600 bags); and on September 30, 1974 (two lots of 600 bags each). All these lots came from the Kami mine, except the 437-bag lot dispatched on August 15, which originated at the Bolsa Negra mine.

 The Lanchas warehouse certificates (DXD, E, F, G) reflect the arrival, in the warehouse at Matarani, of eight of these lots, on the following dates: August 22, 1974 (the two lots shipped from Kami on July 29, and the lot shipped from Bolsa Negra on August 15); on August 29 (one of the two lots shipped from Kami on August 15); on October 15 (the lot shipped from Kami on September 6); on October 10 (the lot shipped from Kami on September 20); and on October 15 (the two lots shipped from Kami on September 30). There is no reference in the warehouse certificates to the second lot shipped from Kami on August 15, but the reasonable inference is that this lot arrived at Matarani on August 29, together with the second lot with which it had been dispatched from Kami.

 The warehouse certificates in evidence (DXD, E, F, G) recite that eight of the lots had reached Matarani in "good overseas shipping condition"; no notation as to the ninth lot appears. There is no evidence in the record to establish the precise meaning of that description, or the inspection undertaken to ascertain the condition.

 Plaintiff gave its agent, Lanchas, instructions to load the nine lots in question on CPV's vessel SABOGAL for carriage to New York. The SABOGAL arrived at Matarani on October 16. She discharged a cargo of "milk" (method of packaging not specified) from the five holds. On October 17 at 1720 hours, loading of the wolfram ore commenced in the No. 5 lower hold, and was completed at 1430 on October 18. The SABOGAL, having also loaded coffee in No. 1 hold, departed Matarani at 1740 on October 18.

 The SABOGAL's chief mate, Ricardo Romero Bazalar, examined the No. 5 lower hold before the ore was loaded, and found it clean and dry. One of Bazalar's duties was to inspect the condition of the cargo as it was loaded. Damaged bags would be reported to the stevedore's tallyman, and the condition described under the column "Observaciones" on the tally sheets (PX3), as well as posted in the ship's log. Bazalar had no specific recollection of the condition of this cargo. There are no notations of damage on the tally sheets, or in the log (DXU). The mineral itself can spot or stain bags containing wolfram ore; Bazalar would not report that condition, which is normal. If the cargo appears wet on loading, "the bags are transferred and sent to the tallyman, and once again, it is posted in the log, . . . But, if the bag is dry, there is no need to make any comment, any observation." Bazalar deposition at 18, 49; no exceptions are noted to dry bags of ore, id. at 41.

 Upon loading of the ores at Matarani, CPV's agents issued a series of "clean" bills of lading (PX2), reciting receipt of the goods by CPV "in apparent good order and condition."

 The ore was stowed away from the hatch opening, so that had rain fallen through the open hatch it would not have wetted the cargo. In point of fact, this was the dry summer season at Matarani, and no rain fell during loading. Bazalar dep. at 36; DXEE, record of Peruvian National Meteorological and Hydrological Service for September and October, 1974, at Mollendo Station, adjacent to Matarani Bay, showing no rain at all during month of October, and traces only on four days in September.

 The bags of ore were stowed one on top of the other, since they were heavy and generally do not move about. This is known as a "block stow," to refer to its ...


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