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December 9, 1986

S/S RO RO GENOVA, her engines, boilers, tackle, etc., COSTA ARMATORI, S.P.A., SOCIETE DUNKERQUOISE d'ARMEMENT, Defendants

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

This is an action for damages arising out of the shipment of a cargo of chocolates from Italy to the United States. A non-jury trial was held on January 13 through 16, 1986. The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).


 Plaintiff, Perugina Chocolates & Confections, Inc. ("Perugina (USA)"), is a corporation with an office and place of business at 333 North Street, Teterboro, New Jersey. Perugina (USA) is engaged in the business of importing fancy chocolates for re-sale. Plaintiff is a subsidiary of IBP Industrie Buitoni Perugina S.p.A. ("Perugina (Italy)"), an Italian corporation engaged in the manufacture of chocolates and confections. Perugina (USA) owned and imported the cargo which is the subject of this action. Defendant Costa Armatori S.p.A. ("Costa Line") is an Italian corporation with an office and place of business, c/o Costa Cargo Services, Inc., 26 Broadway, New York, New York. Costa Line is engaged in the business of acting as a common carrier of goods by water for hire. Defendant Societe Dunkerquoise d'Armement ("Societe") is a French corporation with an office and place of business at 16 Boulevard Malesherbs, Paris, France. At all times material to this action, Societe owned and operated the M/V Ro Ro Genova ("Ro Ro Genova") as a merchant ship engaged in the common carriage of general cargoes. At all times material to this action, Costa Line was the charterer and operator of the Ro Ro Genova and issued the bill of lading covering the cargo in question.

 The chocolates and confections which are the subject of this lawsuit were manufactured in a factory located in Perugia, Italy owned and operated by Perugina (Italy). The chocolates and confections were manufactured in a temperature controlled environment at 18 degrees C (64 degrees F). After manufacture, the chocolates and confections were kept in a refrigerated warehouse at a constant temperature of 10 degrees C (50 degrees F).

 During the summer months, Perugina (Italy) ordinarily ships chocolates and confections to the United States in refrigerated containers. The fact that Costa Line's vessels were not equipped to handle refrigerated containers was known by Perugina's freight forwarders in Italy. Perugina (Italy) was aware of the absence of refrigerated service by Costa Line since they did not use Costa Line during the summer months, instead turning to other carriers who did provide refrigerated service. According to Estevan Giannoni, Perugina's Production Manager, Perugina (Italy) used refrigerated containers until the end of August; beginning with the end of August or early September, normal containers are used. According to Dr. Claudio Trappoloni, the Perugina (Italy) quality controller, the decision to switch to non-refrigerated containers was made based upon local weather conditions and forecasts of conditions in the North Atlantic.

 The ocean freight charge for refrigerated containers was twice that for non-refrigerated containers. Defendant's freight rate for the transport of the containerized cargo in suit was governed by the "West Coast of Italy, Sicilian and Adriatic Ports North Atlantic Range Conference" or "WINAC" tariff. Under this tariff, conference carriers charge $40.00 per ton for the carriage of non-refrigerated containers and $85.00 per ton for refrigerated containers. In this case, the freight charge for the 528 tons of chocolates amounted to $21,120 on a non-refrigerated basis. On a refrigerated basis, the ocean freight would have cost over $44,000.

 On or about September 13, 1982, Perugina (Italy) caused certain of its chocolate and confectionery products to be loaded into eight forty-foot containers. The eight containers, numbered as follows, were described by the freight forwarder to the carrier, as containing the following items:

 INBU 132676/8 -- chocolate cartons and caramel candies

 CTIU 415503/7 -- caramel candies

 XTRU 888788/2 -- hard candies

 CTIU 454743/9 -- hard candies

 UFCU 215398/5 -- chocolate cartons

 NTU 429374/9 -- chocolate cartons

 FVIU 139452 -- chocolate cartons

 SSIU 216192/3 -- caramel candies

 The goods were counted and loaded into each of the containers by employees of Perugina (Italy), the shipper, in Perugia, Italy, who thereafter locked the doors to the containers and applied seals to each of the container doors. From this point forward the shipment traveled "house-to-house," which means that once the seals were placed on the containers by Perugina (Italy), they were not to be opened until they arrived at their final destination. None of the containers were refrigerated, insulated or ventilated. Before loading, Perugina (Italy) had the containers parked in the shade in an attempt to protect them from the heat as much as as possible under the circumstances.

 The trucking documents indicate that the containers arrived at the Perugina (Italy) plant and departed at the following times the next date. Number Arrival Time Departure Time INBU 132676/8 [no time indicated] CTIU 415503/7 [no time indicated] XTRU 888788/2 9:20 a.m. 2:45 p.m. CTIU 454743/9 [no time indicated] UFCU 215398/5 8:15 a.m. 2:45 p.m. INTU 429374/9 7:50 am. [no time ...

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