The opinion of the court was delivered by: LEVAL
This action involves damage to cargo consisting of crane booms, steel rafters and building material shipped from Texas to Saudi Arabia in 1975. Plaintiff, Swindell-Dressler Co., the consignee of the cargo, is an engineering firm which had undertaken to build and operate a factory at Bahra, Saudi Arabia, for the Saudi Red Brick Company, (an enterprise of Sheikh Al-Amoudi). Defendant Hellenic Lines, Inc. is the owner of the Hellenic Laurel and the Hellenic Ideal, aboard which ships the cargo was transported from Houston to the port of Jeddah in Saudi Arabia.
The parties have stipulated, and the proof further showed, that "port conditions, including precautions taken with respect to cargo, were extremely poor" in the port of Jeddah at the time in question. The congestion was strangulating. Ships were required to wait months at the port before having access to a docking area to unload cargo.
Cargo in Jeddah was not delivered directly by carrier (or stevedore) to consignee, but was first delivered into the hands of Saudi customs whose laborers and machinery unloaded the stevedore's trucks and later loaded the consignee's trucks when the consignee came to take delivery. Documentation as to the handling of cargo was comparatively scarce, as was qualified personnel.
The first shipment in question was aboard the Laurel which departed Houston on about August 7, 1975, and arrived in Jeddah on October 5. Discharge of cargo did not occur until December 5 through 22. The cargo was transported by the stevedore into the customs shed where it was unloaded by customs to await the consignee.
On January 1, 1976, the plaintiff, having received notice of delivery, sent employees of Saudi Red Brick to pick up the cargo at customs. Saudi Red Brick transported the cargo from the customs sheds to the construction site at Bahra, some 35 kilometers away. On January 3, 1976, plaintiff noted extensive damage to the cargo and requested a survey. Inspections were made on January 10 and 31 and a report was prepared confirming extensive damage to certain items.
The second shipment departed Houston on board the Ideal on September 8, 1975. The Ideal arrived in Jeddah October 30. Its cargo was discharged beginning January 12, 1976. Employees of Saudi Red Brick again called for the plaintiff's cargo on January 15, 1976, and transported it to the construction site at Bahra. On February 10, 1976, plaintiff requested a survey; inspections were conducted and once again damage was noted to a number of steel members.
Photographs were offered by plaintiff taken at the construction site showing a number of badly mangled pieces of construction steel.
Plaintiff sues to recover for the damage to its cargo. I have concluded that the claim fails. Plaintiff has not shown that the goods were in a damaged condition when delivered by the carrier's stevedore into Saudi customs custody. Indeed, plaintiff has not even shown that the goods were damaged when delivered by customs into the possession of the plaintiff's agent, Saudi Red Brick. I therefore need not consider what would be the consequences of the intermediate possession of Saudi customs if the cargo were shown to have been in damaged condition when first available to the consignee. Had such damage already existed when delivery was accepted by the consignee's agent at the customs shed, the consignee could have created a record to demonstrate this. It could perhaps have received a confirmatory damage report from customs. If not, it could at least have brought witnesses or surveyors to customs to establish the damage. It was all the more imperative that it do so as to the second shipment after the first was received in bad condition. In both cases the plaintiff sent employees of Saudi Red Brick to pick up its goods at customs. In neither case, however, does the evidence show any perception of damage before the goods were at the job site. In fact in the second case, no record or evidence of the damage exists prior to 26 days after delivery from customs.
In each case the cargo had been handled and transported by the plaintiff's own agents, including at least one loading or unloading, prior to the first notation of damage.
Under the circumstances, I find that plaintiff has failed to establish sufficient likelihood that the damage was not the doing of its own Red Brick crews after their receipt of the goods from customs. See McMillan v. Marine Sulphur Shipping Corp., 607 F.2d 1034 (2 Cir. 1979), cert. denied, 445 U.S. 905, 100 S. Ct. 1082, 63 L. Ed. 2d 321 (1980); Dreijer v. Girod Motor Co., Inc., 294 F.2d 549 (5 Cir. 1961). Plaintiff has therefore failed to make out its prima facie case. See Demsey & Assoc. v. S.S. Sea Star, 461 F.2d 1009 (2 Cir. 1972).
Plaintiff argues that its burden should be eased by two instances of unreasonable deviation. First, both vessels called at an unscheduled port in Heraklion, on the Island of Crete, to change crews. In one case a log note shows the debarkation of a person who may have been a passenger. Secondly, on the Laurel, it appears that certain large steel pieces were transported on deck, in deviation from the imputed term of the clean bill of lading which requires carriage in the hold of the ship. See DuPont de Nemours International S.A. v. S.S. Mormacvega, 493 F.2d 97 (2 Cir. 1974); Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, 422 F.2d 7 (2 Cir. 1969), cert. denied, 397 U.S. 964, 90 S. Ct. 998, 25 L. Ed. 2d 255 (1970).
Assuming without deciding that the issue of deviation is pertinent in light of plaintiff's failure to show that the damage occurred prior to its receipt of the goods, I find that no unreasonable deviations occurred. The detour to Heraklion and brief stop there added only 29 miles to the voyage, delayed the ship an insignificant amount of time, and was in each instance primarily for the purpose of switching crews. See American Metal Co. v. M/V Belleville, 284 F. Supp. 1002 (S.D.N.Y.1968). It had no causal relationship with the damage. Nor was the storage above deck improper. Defendant showed that the risk of handling damage to huge construction members is reduced rather than increased by storage above decks because this eliminates the need for the difficult operation of lowering oversize bulky and heavy objects through the hatches into the holds, and the converse on discharge. There was no showing that exposure to the elements was a factor to be considered in the storage of this cargo, or that such exposure contributed to the damage. See DuPont de Nemours International S.A. v. S.S. Mormacvega, supra. It has not been shown that the damaged members were those carried above decks.*
The last remaining issue concerns Hellenic's obstruction of plaintiff's attempts to conduct discovery. This was discussed in a recorded conference on December 1, 1978, during which I noted a "persistent and undoubtedly intentional ...