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September 23, 1980;

SS "RIO IGUAZU", her engines, boilers, etc., v. EMPRESA LINEAS MARITIMAS ARGENTINAS (Argentine Lines) and Pittston Stevedoring Corp., Defendants

The opinion of the court was delivered by: LEVAL


Philipp Bros. Metal Corp. ("plaintiff", "shipper" or "owner" of the cargo) brought this action against Empresa Lineas Maritimas Argentinas (the "carrier"), owner of the S.S. Rio Iguazu, and Pittston Stevedoring Company (the "stevedore"), alleging a shortage in a shipment from Buenos Aires to New York of tin bars belonging to plaintiff. The tin bars were placed aboard the Rio Iguazu in Buenos Aires, and discharged by Pittston, the carrier's stevedore, in New York. The carrier and the stevedore filed cross-claims against one another for indemnification.

 The ship was discharged in New York by Pittston on November 3 and 4, 1976, and arrival notices were sent to plaintiff as consignee. The plaintiff, not having yet sold the cargo, did not call for it during the free time provided, but instead caused it to be weighed on the pier on November 17 by Pidgeon, an independent weigher, who found and certified all the cargo covered by the bill of lading to be present. During the next two months, the plaintiff sold the cargo and arranged for truckers to pick up the shipment in three separate lots. When the last portion was picked up at the Pittston pier by plaintiff's trucker on January 19, 1977, the trucker found that only 113 bundles remained instead of the 118 bundles which should have been there. Furthermore, it was apparent that rebundling had occurred. A shortage of 2,326 pounds (roughly equivalent to 5 bundles) was confirmed by weighing when this portion of the shipment was delivered by the trucker to Gould, the purchaser of the tin bars.

 The purchaser Gould accordingly reduced its purchase payments to the plaintiff by $ 10,013.33, the price attributable to the missing cargo. It also billed the plaintiff $ 910.15 for the extra labor required to weigh the broken, rebundled and incomplete shipment.

 A. The Owner's Claim against the Stevedore

 I find that the plaintiff succeeded in proving that Pittston by negligence or fraud breached its obligations as bailee and caused the loss.

 The evidence demonstrates that Pittston received in its warehouse and held after the expiration of free time the full shipment of 233 bundles, exactly as shown on the ship's manifest.

 On the other hand, the proof establishes convincingly that when the freight was picked up by truckers to be delivered at the owner's instructions, less than the full amount of cargo remained. At the time of the final pickup, which occurred on January 19, 1977, there should have been 118 bundles remaining, but only 113 bundles were found. Putting together all of the shipments out from Pittston's warehouse, Pittston delivered out only 228 bundles instead of 233. The cargo had disappeared from Pittston's custody while it held the cargo as bailee.

 Pittston objects that there is evidence from which the court could infer that Pittston did not receive the full amount of the cargo called for by the manifest. There was testimony by Petrocelli, Pittston's pier manager, that in the hold of the ship the cargo was not properly bundled, that bundles had broken apart, that pieces were floating free, and indeed, an Exception Report was prepared by the clerk in the shed to which this cargo was transported to the effect that the bundles could not be counted because of breakage of packages.

 According to Petrocelli's testimony, he was aware from the first of the existence of a possible controversy as to whether all of the merchandise called for by the bill of lading and the manifest came over the rail.

 However, at no time did Pittston take any steps to demonstrate that it received less than the full shipment. To the contrary, documents prepared by Pittston are consistent with the full shipment being in its hands. Furthermore, Pittston was well aware that, at the owner's instance, on November 17, the cargo was weighed and certified by Pidgeon. Indeed, Pittston accommodated the weigher by providing him with a forklift and operator. If Pittston had any suspicions, as Petrocelli's testimony suggests it did, it could have supervised or monitored the weighing.

 So far as the evidence shows, Pittston did not in any way look in on or advise itself of the conclusions reached by Pidgeon in making his weighing.

 Pittston now seeks to cast aspersions on the honesty of the weight taken at that time, but has offered absolutely nothing in evidence to impeach Pidgeon's certifications.

 Pittston furthermore could have protected itself by taking a weight and/or count of its ...

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