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WESTWAY COFFEE CORP. v. M.V. NETUNO

September 15, 1981

WESTWAY COFFEE CORPORATION, Plaintiff,
v.
M.V. NETUNO, her engines, boilers, etc., v. COMPANHIA DE NAVEGACAO MARITIMA NETUMAR, Defendants



The opinion of the court was delivered by: SAND

This case involves the mysterious disappearance of 419 cartons of instant coffee from a sealed container, consigned to plaintiff from Brazil to New York on the M.V. Netuno. A trial to the Court has been held and this opinion constitutes the Court's findings of fact and conclusions of law.

FACTS

Plaintiff Westway Coffee Corporation placed an order for 1710 cartons of instant coffee from Dominium, S.A. of Sao Paulo, Brazil. Dominium obtained six containers from defendant Companhia De Navegacao Maritima Netumar ("Netumar"), owner of the M.V. Netuno, in connection with the shipment consigned to plaintiff. The empty containers were driven by truck to the Santos scale, where they were weighed to determine their tare. (Dos Santos Dep. at 7; da Silva Dep. at 14; Mello Dep. at 17). The containers were then taken to a warehouse in Sao Paulo, Brazil, owned and controlled by COBEC, a Brazilian government organization. The containers were loaded at the COBEC warehouse, under the supervision of an official of the Brazilian Coffee Institute, the Brazilian governmental agency in charge of coffee exports, who certified (Plaintiff's Exhibits 15A-F) that each container was loaded with 285 cartons of instant coffee, and sealed the containers, which were then padlocked. See Barros Dep. at 6-8. The containers were then driven to Santos, Brazil, approximately 60 kilometers away. At Netumar's request and expense, the containers were weighed on May 28 and 29, 1979, before entry to the Eud Marco Terminal Warehouse. The weights of all six containers corresponded to the presence of 285 cartons of instant coffee in all six containers. The containers remained in the Eud Marco Warehouse until June 7, 1979. Although the Eud Marco Warehouse General Manager testified that it was Netumar's practice to request weighing of the containers upon exit from the warehouse, if they had been in the warehouse for more than two days, Netumar did not request that these containers (which were in the warehouse for at least seven days) be weighed upon exit from the terminal warehouse.

 On June 7, 1979, the containers were driven to the vessel and loaded by ship's gear, and Netumar issued a bill of lading (plaintiff's exhibit 21) dated June 7, 1979, reflecting shipment of the six containers. *fn1" The bill of lading lists the serial numbers of the containers and their gross weight, and the following typed description: "S.T.C. (said to contain) each 285 boxes with soluble coffee spray." The gross weights listed are consistent with all six containers containing 285 boxes of coffee. *fn2" Three legends have been stamped on the bill of lading: "Said to contain (STC)"; "Shipper's load and count (SLAC); and "Contents of packages are shipper's declaration." The efficacy of these legends is a major dispute between the parties, which will be resolved infra.

 Defendant's employees testified that the containers were sealed and locked when they were loaded on the M.V. Netuno, and that the two containers involved in this action were stowed in hatch 4, central cell, in the upper tween deck of the vessel. The M.V. Netuno arrived in New York on June 25, 1979 and the containers were discharged at Pier 36, East River, New York City, on June 26, 1979.

 On June 25, 1979, Chemical Bank presented Westway with a sight draft payable in 120 days for acceptance, with supporting documents, including the June 7, 1979 bill of lading. After reviewing the supporting documents, Westway accepted the draft, and Chemical Bank held the draft until October 23, 1979 when payment was due. Westway paid the draft when it became due.

 On June 27 or 28, 1979, the six containers, seals and locks intact, were opened on Pier 36 for sampling. Four of the containers were filled to capacity (285 cartons), but containers CTIU 294907 and CTIU 412376 were not full. It was ultimately determined that the two containers held 419 cartons less than the number listed in the bill of lading and Westway's order from Dominium. Westway duly notified Netumar of the claimed shortage on June 29, 1979. This lawsuit followed. *fn3"

 DISCUSSION

 Under Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1300 et seq., a consignee establishes a prima facie case by proving "delivery of the goods to the carrier ... in good condition, and outturn by the carrier ... in damaged condition." Vana Trading Co. v. S.S. "Mette Skou, 556 F.2d 100, 104 (2d Cir.) cert. denied 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977) (quoted in Caemint Food, Inc. v. Lloyd Brasileiro Companhia De Navegacao, 647 F.2d 347, 352 (2d Cir. 1981)). The burden then shifts to the carrier to establish "that the loss or damage falls within one of the COGSA exceptions set forth in 46 U.S.C. § 1304(2)." Id. at 105. If the carrier satisfies this burden, "the burden then returns to the ... consignee to "show that there were ... concurrent causes of loss in the fault and neglect of the carrier.' " Id. (citations omitted).

 Plaintiff contends that the weights stated in the June 7, 1979 bill of lading constitute "prima facie evidence of the receipt by the carrier of the goods as therein described," 46 U.S.C. § 1303(4); see Woodhouse Drake & Carey (Trading), Inc. v. S.S. "Hellenic Challenger", 472 F. Supp. 31, 33 & n.4 (S.D.N.Y.1979); that it was entitled to rely on the weights stated in the bill of lading which was duly negotiated to it; and that Netumar is estopped from claiming that the missing cartons of coffee were not in the containers when Netumar took possession of them. *fn4"

 Defendant contends that plaintiff has failed to prove delivery of the full quantity to the carrier, and thereby has failed to establish a prima facie case; and alternatively, that defendant has established that it exercised proper care; and that plaintiff's estoppel theory does not apply to cases involving sealed containers. *fn5" These contentions are based largely on the disclaimers contained in the bill of lading, and on the fact that the goods were "hidden" within the containers. *fn6"

 We reject defendant's position for the reasons succinctly stated by Judge Weinfeld in Woodhouse, supra, 472 F. Supp. at 33-34:

 
COGSA provides the answer to defendant's contention. Section 1303(3) provides:
 
After receiving the goods into his charge the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a ...

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