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HARTFORD FIRE INS. CO. v. M/V SAVANNAH

February 20, 1991

HARTFORD FIRE INSURANCE COMPANY AND SUNLAND, INC., PLAINTIFFS,
v.
M/V "SAVANNAH", ITS ENGINES, BOILERS, ETC., K.G. IVARANS REDEREI B.M.B.H. & CO. AND IVARAN LINES, DEFENDANTS. IVARAN LINES, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. REDEREI CLAUS-PETER OFFEN, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

In this admiralty action alleging short delivery of cargo, plaintiffs move for summary judgment under Rule 56, Fed.R.Civ.P.

Background

In December 1987 plaintiff Sunland, Inc., a New York corporation, purchased a quantity of Brazilian cashew nuts from Cia. Industrial de Productos Alimenticios ("CIPA") in Fortaleza, Brazil. The shipment consisted of 500 cartons of first quality large whole cashews priced at $2.95 per pound F.O.B. vessel at Fortaleza, and 200 cartons of first quality pieces priced at $1.25 per pound. The total F.O.B. invoice purchase price was U.S. $86,250. Sunland paid CIPA for the cashews through an irrevocable letter of credit issued by Chase Manhattan Bank in New York for the full purchase price, payment to be made upon CIPA's presentation of specified documents, including a full set of on board clean ocean bills of lading.

The complaint alleges that although the shipment was F.O.B. vessel, CIPA arranged for the ocean transportation of the goods from Fortaleza to New York with defendant Ivaran Lines through the latter's agents at Fortaleza. Sunland insured the cargo for physical loss and damage during transit with plaintiff Hartford Fire Insurance Company under an open marine cargo policy.

On December 19, 1987 Marnosa Navegacao Ltda., acting "for and on behalf of the Master", and "as agents only," issued at Fortaleza an Ivaran Lines bill of lading reflecting the loading of the 700 cartons of cashews on board the M.V. "SAVANNAH." The printed form bill of lading recites: "Particulars Furnished by Shipper of Goods." The typed description of goods says:

  1 (One) Container 20 FT said to contain 700
  cartons brazilian cashew kernels as follows:

500 Cartons cashew L.W. 1's

200 Cartons cashew P 1's

In a column bearing the printed caption "gross weight in kilos," there is typed opposite the reference to 500 cartons the figures "12.000." Opposite the reference to 200 cartons, there is typed "4.800," and then a total figure of "16.800." It is common ground that the bill of lading shows the weight of the 700 cartons of cashews to be 16,800 kilos, the equivalent of approximately 37,037 pounds. The bill of lading does not recite the weight of the 20-foot container into which the 700 cartons were placed prior to loading on board the vessel.

  Carrier received the above container(s) locked
  and/or sealed and did not open the container(s).
  Carrier did not tally the container's contents
  nor did it weigh them. The weights or quantity
  stated on this bill of lading are simply those
  stated by the shipper and are not deemed to have
  been issued by the carriers.

The bill of lading identifies the shipper as CIPA.

On the back of the bill of lading this printed ...


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