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Kellogg v. S.S. and S.S.

decided: March 16, 1983.

SPENCER KELLOGG, DIVISION OF TEXTRON, INC., PLAINTIFF-APPELLEE,
v.
S.S. "MORMACSEA" AND S.S. "MORMACVEGA", THEIR ENGINES, BOILERS, ETC., V. MOORE-MCCORMACK LINES INCORPORATED, DEFENDANT-APPELLANT



Appeal from a judgment entered in the United States District Court for the Southern District of New York, Sofaer, J., awarding damages for short deliveries of castor oil.

Lumbard, Mansfield and Meskill, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

In this admiralty suit, carrier-appellant Moore-McCormack Lines, Inc. ("Moore") appeals from an award of $15,312.68 plus costs and interest entered on April 27, 1982 in favor of consignee-appellee Spencer Kellogg, Division of Textron, Inc. ("Kellogg") by Judge Sofaer, Southern District of New York. The parties waived a trial below and submitted all evidence in written form. Judge Sofaer found, in an opinion and order reported at 538 F. Supp. 230, that the appellees had established liability and damages for short deliveries of castor oil under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. ยงยง 1300-1315. We agree. As the record below supports this conclusion, we affirm.

Kellogg contracted with Moore for two equal shipments of 570,000 kilos of castor oil from Recife, Brazil to Brooklyn, New York aboard the appellant's vessels, the S.S. Mormacvega and the S.S. Mormacsea. Prior to shipment, the vessels' tanks were checked and cleared for tightness by the American Bureau of Shipping and the Sociedade Brasileira de Superintendencia S.A. To establish the weight of the castor oil loaded on the vessels, the trucks delivering the oil were weighed before and after loading. The bills of lading, accepted without dispute by the appellant at the time, stated that each vessel received 570,000 kilos of castor oil. The bills of lading also contained the following disclaimer:

"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 THIS BILL OF LADING IS ACCURATE."

The castor oil was loaded on the Mormacvega in September, 1977 and the vessel arrived in New York later that month; the Mormacsea was loaded in October, 1977 and arrived in New York on November 3, 1977. The appellee's barge, the Manoleine, met the vessels in New York. The appellant had sealed the sounding tubes in its tanks preventing accurate ullages*fn1 of the cargo before it was discharged onto the barge. Measurements conducted through the manhole covers of the tanks, a less precise procedure, did, however, reveal shortages. Subsequent shortages noted both on board the Manoleine and at the oil's final destination, storage tanks in Weehawken and Edgewater, New Jersey, further established that appellee did not receive the full amount shipped. The discrepancies in each case between the quantities shipped and three different measurements of what was delivered are reflected in the chart below:

MORMACVEGA

Quantity

Shipped Alleged

(lb s.) (from Shortage

bill of lading) Quantity Delivered*fn2 (less.5%)

1,256,622 1,237,565 ...


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