The opinion of the court was delivered by: Milton Pollack, Senior District Judge.
Having heard and seen the witnesses and considered all
documentary evidence and having evaluated all of the facts and
circumstances herein, I decide and find as follows:
The Carriage of Goods by Sea Act (COGSA) 46 U.S.C.App. §
1300, et seq., applies to the shipment and the loss of the tin
ingots involved therefrom.
The shipment could not be mistaken to be other than a
shipment of 600 packages or bundles into which 8,996 ingots
were packaged. The bundles or packages, each consisting of 15
ingots (except one package of 11), were each separately bound
by steel straps. The two containers herein involved 67 packages
or bundles containing 1,005 ingots, packaged as mentioned, and
were shipped that way. The bills of lading and their content
must be read and understood in the light of the clear intent
that 600 bundles in total were involved which is supported by
the collateral evidence that the quantity references in the
bills of lading were intended to embrace packages or bundles
wrapping 15 ingots per package or bundle, and individual ingots
were not intended to be individual, separate packages.
The ingots were aboard the rail cars referred to in the
evidence; were initially stored in Warehouse No. 5 at Arica,
Chile; were packaged into 600 bundles or packages; were
delivered to and stored in steel strapped packaged or bundled
groups and placed in 18 containers; all bundles or packages
were separately strapped with steel bands around each bundle;
were all loaded on the Popi at Arica, Chile; remained intact
during its voyage to New York; were off-loaded from the ship
intact and placed intact in the custody and control of the
stevedore, Universal Maritime Services Corp.; that 67 packages
of ingots shipped and so off-loaded involving a total of 1,005
ingots were found to be missing; the container had been opened
and invaded without breaking the seals; the packages of ingots
were removed and not delivered to the consignees in New York as
a result of the fault of the stevedore. From the evidence
presented and the legitimate inferences therefrom, I find that
the plaintiffs and third-party plaintiffs have sustained the
burden of proof that the removal of the ingots occurred while
the containers were in the custody and control of the
stevedores. The evidence of the third-party defendant did not
satisfactorily or credibly meet or overcome the prima facie
proof of the third-party plaintiffs that the loss occurred
while the containers were in the possession or under the
control of the stevedores. The issues of credibility involved
with respect to the loss are resolved in favor of the
plaintiffs and third-party plaintiffs against the third-party
The claims against the ship, carriers and charterers fall
within the scope of this Court's admiralty jurisdiction.
See 28 U.S.C. § 1333(1).*fn1 However, any claim against
Universal Maritime arose while the cargo was on land and is
grounded on state law and is not within federal admiralty
jurisdiction. See, Roco Carriers Ltd. v. M/V Nurnberg Express,
899 F.2d 1292, 1294 (2d Cir. 1990). The validity of
jurisdiction over a third-party defendant is grounded in the
concept of pendent party jurisdiction. The Second Circuit has
recently reaffirmed the availability of pendent party
jurisdiction in admiralty cases even in light of the Supreme
Court's holding in Finley v. United States, ___ U.S. ___, 109
S.Ct. 2003, 104 L.Ed.2d 593 (1989).
The Carriage of Goods by Sea Act (COGSA), 46 U.S.C. App.
§§ 1300-1315, governs the rights of the parties while the cargo
is on the ship.
The plaintiffs argue that COGSA should not limit its recovery
in this case if the loss occurred before loading or after
Paragraph 2(a) of the bill of lading states:
If this Bill of Lading is issued exclusively for
the carriage of goods by sea the carrier shall be
responsible subject to the provisions of the
Carriage of Goods by Sea Act of the United States,
approved April 16, 1936 in case of a carriage of
goods from ports of the United States, or, in case
of a carriage from ports of Canada, subject to the
provisions of the Water Carriage of Goods Act of
Canada, approved August 1, 1936, and the said
provisions shall be deemed to be incorporated
herein. The provisions stated in the said Acts
shall also govern before the goods are loaded on
and after they are discharged from the ship,
however, restricted to the time when the goods are
in the actual custody of the carrier. The carrier
shall not be liable in any capacity whatsoever
while the goods are not in his actual custody.
Plaintiffs argue that the bill of lading only extends COGSA to
cover these periods in voyages from the United States.
When read in conjunction with COGSA, however, it is clear
that ¶ 2(a) extends coverage on all voyages. COGSA requires
bills of lading for voyages from the United States to contain a
statement expressly including COGSA's terms.*fn2 The first
sentence of ¶ 2(a) does exactly this. The second sentence then
states at what other times COGSA will apply. The plaintiffs'
argument that the first sentence modifies the second is not
persuasive. The second sentence states that COGSA "shall also
govern" before loading and after discharge. (Emphasis added).
It is an additional term, not one dependent on the sentence
The bills of lading also contain a so-called "Himalaya"
clause extending coverage to "servants, employees and agents of
the carrier as well as of such independent contractors
(including their servants, employees and agents) whose services
the carrier from time to time may engage in the operation of
the vessel or any other means of transportation including
loading, discharging and all services in connection herewith."
Stevedores are included in the term "independent contractor."
Whether a bill of lading extends limitations of
liability to stevedores depends on whether "the
clarity of the language used expresses such to be
the understanding of the contracting parties."
Robert C. Herd & Co. v. Krawill Machinery Corp.,
359 U.S.  at 305 [79 S.Ct. 766, 771, 3 L.Ed.2d
820 (1959)] . . . Two circuits have recently held
that a bill of lading mentioning independent
contractors clearly includes stevedores. Bernard
Screen Printing Corp. v. Meyer Line, 464 F.2d 934,
936 n. 1 (2d Cir. 1972), cert. denied, 410 U.S. 910
[93 S.Ct. 966, 35 L.Ed.2d 272] . . . (1973);
Seacrest Machine Corp. v. S.S. Tiber, 450 F.2d 285,
287 (5th Cir. 1971). The language of the district
court in Bernard Screen is instructive:
328 F. Supp.  at 290.
Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438,