by the Hong Kong shipper, the containers from Taiwan had been
stuffed and sealed prior to being brought to Kaohsiung. Dooley
had no report concerning weather conditions at the site where
these containers were loaded by the shipper.
In addition, nine other containers of fans from the same
shippers were transported to and loaded onto the vessel at the
same time as the containers involved in this dispute. The
merchandise in these containers reached their destination in an
undamaged state. This would seem to weaken drastically, if not
rule out, local weather as a factor. The presence at outturn of
so much water and water damage in the containers when unsealed
bolsters plaintiff's testimony, and I so find that the water
damage was caused by the introduction of water into the
containers from an outside source during the voyage.
On handing the cargo over to the custody of the carrier, it
assumes the status of bailee and remains "liable for the
cargo's safe delivery." Leather's Best, Inc. v. S.S.
Mormaclynx, 451 F.2d 800, 812 (2d Cir. 1971). Nonetheless, it
is the shipper's burden throughout the trial to prove the
damage to its cargo took place while the cargo was in the
carrier's custody. Caemint Food, Inc. v. Brasileiro, supra, 647
F.2d at 351; Perugina Chocolates & Confections, Inc v. S/S Ro
Ro Genova, 649 F. Supp. 1235, 1240 (S.D.N.Y. 1986) (Leisure,
J.). Failure to make such a showing so that it appears as
likely as not that the damage took place after discharge, the
defendant prevails. Associated Metals & Minerals Corp. v. M/V
Rupert de Larrinaga, 581 F.2d 100 (5th Cir. 1978). Plaintiff
has satisfied its burden in this regard. While the evidence is
circumstantial that the carrier's negligence caused the damage,
such evidence in the circumstances of this case is sufficient.
Siderius, Inc. v. M/V Amilla, 880 F.2d 662, 664 (2d Cir. 1989).
Defendants contend that the plaintiff failed to mitigate its
damages. They suggest that plaintiff should have segregated the
cartons, repackaged the undamaged ones and sold the damaged
ones only to salvage. Plaintiff indicated a lack of any
facility for repackaging at its warehouse. Moreover, the price
it could charge for the fans was so low that it would not be
able to pass on to the customer any extra charges to cover the
cost of separating and repackaging in any event.
The burden is on the defendants to show that plaintiff
infringed its obligation to mitigate its damages. Ellerman
Lines, Ltd. v. The President Harding, 288 F.2d 288, 291 (2d
Cir. 1961). Since plaintiff has provided a reasonable and
satisfactory explanation for its conduct, defendants have not
met their burden on this issue. The contention that the
plaintiff should have sought bids for salvage and acted
improperly in barring the salvor from selling the fans in
competition with the plaintiff is unconvincing.
Plaintiff is entitled to recover cost and freight loss. That
is $105,612.62 for the loss in connection with Voyage 7. NOL
concedes that these damages should be prorated between it and
K-Line, with NOL being charged with $63,993.00 of the total
amount and K-Line being liable for $41,680. Plaintiff is to
recover an additional $43,318 for its cost and freight loss in
connection with Voyage 8. The damages assessed on Voyage 7
carries interest at 9 percent from March 14, 1988, and the
damages awarded in connection with Voyage 8 carries interest at
9 percent from May 7, 1988.
Defendants have sued Orient, but have presented no evidence
in support of that phase of the litigation. Since their space
charter contract provides for private arbitration of any
disputes among them (K-Line, NOL, and Orient), it is assumed
that the parties intend to resort to arbitration on whatever
dispute there is as to Orient's liability for damage to the
cargo involved here. At any rate, in the absence of proof, the
third party complaints are dismissed.
IT IS SO ORDERED.
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