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BENJAMIN v. M.V. "BALDER EEMS"

July 28, 1986

NANCY T. BENJAMIN, Plaintiff,
v.
M.V. "BALDER EEMS" and "FORTALEZA", their engines, boilers, etc., in rem, PANERA N.V. and PUERTO RICO MARITIME SHIPPING AUTHORITY (NAVIERAS de PUERTO RICO) and PUERTO RICO MARINE MANAGEMENT INC., in personam, Defendants



The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J.:

 The following constitutes the Court's findings of facts and conclusions of law pursuant to Fed. R. Civ. P. 52. The parties have agreed to the following facts, upon which the matter is tried to the Court without a jury. *fn1"

 BACKGROUND

 This matter involves a claim by the plaintiff, Mrs. Nancy T. Benjamin, against Puerto Rico Maritime Shipping Authority, Puerto Rico Marine Management, Inc. and the ship "BALDER EEMS" for damage to a shipment of household goods owned by the plaintiff and shipped by the plaintiff from her home in the Dominican Republic to San Juan, Puerto Rico, on the M.V. "BALDER EEMS" in May, 1981. The terms of the contract of carriage called for the goods to be loaded, stowed and counted by the shipper, the plaintiff. See Exhibit A to Statement of Agreed Facts.

 The plaintiff's goods were loaded into a shipping container at her home at Santo Domingo by a moving company retained by the plaintiff, and transported to the defendants' terminal at Boca Chica. It is agreed that when received by the defendants the cargo was in good order and condition. The day the container was received by the defendants, and prior to the container being loaded on the M.V. "BALDER EEMS", officers of the Dominican National Police, the Dominican Customs Service and the Dominican Port Authority, pursuant to a search warrant issued by the Assistant Prosecuting Attorney of Santo Domingo, see Exhibit B to agreed Statement of Facts, opened the container and searched its contents for drugs. On May 10, the container was ready to be loaded when, as noted above, the secret police prevented the container from being loaded on board for transport while they conducted the aforesaid search. See Transcript of Argument ("Tr.") at 2.

 During the search, the contents of the container were unloaded by the police and were re-stowed by them upon completion of the search. A small bottle containing a white powder was confiscated and analyzed, but was found not to be an illegal substance. No drugs were found. During the course of the search, however, some of the contents of the container were damaged, and some apparently pilfered. It is agreed that this was done by the Dominican authorities during the time that the container was under their detention. On May 14, the police permitted the container to be loaded on the M.V. "BALDER EEMS" for transport.

 The plaintiff obtained an estimate of $26,936.55 to repair the damaged items and to replace those lost, which is agreed to be reasonable.

 It is also agreed that the United States Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315 (1981) ("COGSA"), governs the rights, duties, obligations and defenses of the parties.

 By further agreement of the parties, the sole issue to be decided by this Court is whether the so-called COGSA defenses to cargo damage claims provided under COGSA, 46 U.S.C. §§ 1304(2)(g) and 2(q), preclude the plaintiff from claiming that the carrier, Puerto Rico Maritime Shipping Authority, or the ship is responsible for the damage suffered to the goods due to a breach of the contract of carriage.

 It is defendants' position that the Court must find that COGSA precludes a recovery against the carrier or the ship under the agreed facts of this case.

 DISCUSSION

 From the agreed statement of facts, it is clear that the damage to plaintiff's goods "was done by the Dominican authorities and while the container was under their detention," see Agreed Statement of Facts at 2, and while the goods were in a foreign country. See Tr. at 4. Thus, the key issue is whether the agreed facts of this case fall within the "restraint of princes" exception to COGSA, as set out at 46 U.S.C. 1304(2)(g). *fn2" This exception clearly refers to arrest or seizure of cargo under judicial process in the normal course of court administration. See G. Gilmore & C. Black, The Law of Admiralty, § 3-34, at 164-66 (2d ed. 1975). To the extent that any negligence by the Dominican officials in lawfully effecting the search caused the damage to plaintiff's property, that damage would clearly not be attributable to defendants. See Tr. at 30; 46 U.S.C. 1304(2)(g); cf. Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426, 430-32 (2d Cir. 1962).

 However, there is an issue raised by the agreed upon "pilferage" committed by the Dominican officials, i.e., whether plaintiff's damages resulting from that pilferage are properly attributable to the defendants, or whether defendants are protected by the restraint of princes exception. Plaintiff contends that these acts of the agents of the foreign sovereign are "ultra vires," and thus do not fall within the restraint of princes doctrine. Plaintiff further contends that defendants had some responsibility to at least make an effort to protect plaintiff's container from pilferage, to report such acts to other Dominican authorities, and to promptly inventory the property in question and notify plaintiff of any damage or ...


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