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KELLOGG v. S.S. "MORMACSEA"

April 22, 1982

SPENCER KELLOGG, Division of Textron Inc., Plaintiff,
v.
S.S. "MORMACSEA" and S.S. "MORMACVEGA", S.S. "MORMACWAVE", Her engines, boilers, etc. and v. MOORE-McCORMACK LINES, Inc., Defendant



The opinion of the court was delivered by: SOFAER

MEMORANDUM OPINION AND ORDER

Plaintiff Spencer Kellogg, Division of Textron, Inc. ("Spencer Kellogg") commenced this admiralty suit to recover money damages from defendant Moore-McCormack Lines, Inc. ("Moore-McCormack") for the alleged short delivery of two shipments of castor oil, shipped from Recife, Brazil, to Brooklyn, New York. Plaintiff is the consignee of the cargo, which was sent in two shipments, one aboard each of the defendant vessels, S.S. MORMACVEGA and S.S. MORMACSEA. The goods were shipped by Soc. Alg. Nor. Brasiliero, S/A of Recife, Brazil ("SANBRA"). The parties to this action have waived their right to a trial. Instead, they have submitted all their evidence to the Court in written form and asked the Court to render judgment in accordance with the evidence submitted. The evidence submitted raises issues of fact that would have required a trial if summary judgment had been sought. But the parties have agreed that no witnesses will be called, perhaps because of the relatively small amount of money at stake. See Plaintiff's Letter of April 27, 1981; Defendant's Letter of May 7, 1981.

 The castor oil shipped from Brazil in this case was loaded on defendant's vessel by SANBRA. Prior to loading, the tanks of both ships were inspected for tightness by the American Bureau of Shipping, an independent organization. In addition, at SANBRA'S request, the Societe Brasileira de Superintendencia S.A. inspected the tanks and found them to be in a satisfactory condition for the carriage of oil. The oil was transported to the ship by truck. En route, the trucks were weighed at the Institute of Alcohol, an official agency of the Brazilian Government. To determine the weight of the oil placed on board, the trucks were weighed again after delivery, and this figure was subtracted from the original weight. These figures were given to the chief mates of the respective vessels who wrote them on the bills of lading that were issued by the ships.

 Both ships eventually arrived in New York and discharged their cargo into the barge MANOLEINE, which was under contract with the plaintiff to receive the cargo. The cargo was then transported to and discharged into storage tanks partly at the Hudson Tank Storage Company in Weehawken, New Jersey, and partly at plaintiff's facilities in Edgewater, New Jersey. Plaintiff sues for alleged shortages on delivery, measured by the amounts that the bills of lading indicate were delivered to the carrier.

 To establish a prima facie case of non-delivery of cargo under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. §§ 1300-1315 (1976), the cargo owner must prove that the carrier received the amount of cargo claimed but delivered a smaller amount. See, e.g., Vana Trading v. "S.S. Metto Sleon," 556 F.2d 100, 104-05 (2d Cir. 1977); Cummins Sales & Service, Inc. v. London & Overseas Insurance Co., 476 F.2d 498, 500 (5th Cir.), cert. denied, 414 U.S. 1003, 38 L. Ed. 2d 239, 94 S. Ct. 359 (1973); Demsey & Assoc., Inc. v. S.S. Sea Star, 461 F.2d 1009, 1014 (2d Cir. 1972); M.W. Zack Metal Co. v. S.S. Birmingham City, 311 F.2d 334, 337 (2d Cir. 1962), cert. denied, 375 U.S. 816, 11 L. Ed. 2d 51, 84 S. Ct. 50 (1963). COGSA provides that the "bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described." 46 U.S.C. § 1303(a) (1976). To establish the quantity of castor oil entrusted to Moore-McCormack, plaintiff has presented four bills of lading, which state that the carrier received 1,256,622 pounds (285,000 kilos) of castor oil on each vessel. In addition, plaintiff has provided further evidence of the quantity delivered by presenting the depositions of independent surveyors, certificates of inspection of the cargo, other documents prepared by Sociedade Brasiliero de Superintendencia S.A., handwritten tallies showing the amount loaded on board defendant's ships, and the depositions of the chief mates of defendant's ships.

 Defendant contends that the bills of lading are not prima facie evidence of delivery to the carrier of the amounts stated, because the goods were in fact weighed by independent surveyors hired by the shipper and not by the carrier. Defendant points specifically to a disclaimer in the bills of lading, which states:

 
"WEIGHT OF CARGO DETERMINED BY A THIRD PARTY, AND ISSUANCE OF THIS BILL OF LADING SHALL NOT BE AN ADMISSION BY CARRIER THAT WEIGHT STATED IN THE BILL OF LADING IS ACCURATE."

 Defendant's Trial Memorandum at 4.

 The Second Circuit recently reaffirmed the established principle that a carrier may not avoid the evidentiary consequences of representations in a bill of lading by including disclaimers similar to the one in this case. In Westway Coffee Corp. v. M. V. Netuno, 675 F.2d 30 (2d Cir. 1982), the carrier issued an onboard bill of lading that listed the gross weight of containers filled with coffee but was also marked "Said to Contain (STC)," "Shipper's Load and Count," and "Contents of Packages Are Shipper's Declaration." Noting that carriers can readily check the weight of goods even though they are often unable to check their condition, the Court refused to permit such qualifications to vary the carrier's representation in the bill of lading about the cargo's weight. In a unanimous decision, Judge Newman wrote:

 
Once the carrier lists the weight of the goods (which normally will be readily verifiable by the carrier), he represents that he has no reasonable ground for suspecting that the weight of the goods actually received varies from the listed weight and that he has reasonable means of checking the weight, 46 U.S.C. § 1303(3)(c) (1976). This is enough for a prima facie showing of receipt of the listed weight. 45 U.S.C. § 1303(4)(1976).

 Id., slip op. at 1737.

 Defendant's attempt to disclaim is not materially different from those denied effect in Westway Coffee. The disclaimer here is somewhat longer, and it explicitly proclaims its intended legal effect. But the more pointed disclaimers in Westway Coffee and other, similar cases, could only have been intended to have the same effect, i.e., to make the shipper rather than the carrier responsible for the bill of lading's representation as to weight. See, American Trading Co. v. The Harry Culbreath, 187 F.2d 310, 313 (2d Cir. 1951); Spanish-American Skin Co. v. The M. S. Ferngulf, 143 F. Supp., 345, 349-50 (S.D.N.Y. 1956), aff'd, 242 F.2d 551 (2d Cir. 1957); George F. Pettinos, Inc. v. American Export Lines, Inc., 68 F. Supp. 759, 764 (E.D. PA. 1946), aff'd, 159 F.2d 247 (3d Cir. 1947). If in fact the shipper is responsible, because it delivered less than it represented to the carrier, Congress has provided that the carrier's remedy is an indemnity action against the shipper; the carrier may not normally negate its statutory guaranty of the accuracy of the shipper's measurements. See 46 U.S.C. § 1303(5); Nitram, Inc. v. Cretan Life, 599 F.2d 1359 (5th Cir. 1979); Westway Coffee Corp. v. M. V. Netuno, supra, at 1738.

 Defendant in this case argues that the disclaimer in the bills of lading should be given effect, because it is the custom of the trade in castor oil in Brazil for the shipper to weigh the cargo. COGSA provides a limited authority for carriers effectively to disclaim responsibility for a representation as to the weight of cargo:

 
Where under the customs of any trade the weight of any bulk cargo inserted in the bill of lading is a weight ascertained or accepted by a third party other than the carrier or the shipper, and the fact that the weight is so ascertained or accepted is stated in the bill of lading, then, notwithstanding anything in this chapter, the bill of lading shall not be deemed to be prima facie evidence against the carrier of the receipt of goods of the weight so inserted in the bill ...

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