restrictive free trade zone regulations drastically reduced its
mitigation options. Evidently, sugar entering a free trade zone
is prohibited from being sold in the United States, unless it is
mixed with another ingredient and thus not considered a raw
commodity. Naturally, plaintiffs' maintain that efforts were made
to obtain the best price for the sugar. Uzmann testified that he
contacted a buyer in Canada, which would not breach free trade
zone regulations, but the best offer was four (4) cents a pound
Defendants strongly question the persistence of Blommer's
investigative efforts, professing, in fact, complete inaction on
the part of the on-scene people, Uzmann and Wagoner, in dealing
with the problem. They claim, further, that Champness was never
notified of the problem, and thus effectively prevented from
advising Uzmann or Arbor Foods with regard to the feasibility of
using a device called an "evacuator" which in Champness'
estimation would accomplish the task of extracting the sound
sugar without the harmful contaminants.
In accordance with the evidence adduced at trial, Blommer's
acceptance of the six (6) cent salvage price from Arbor Foods was
reasonable, given the combination of factors involved with bulk
sugar in a free trade zone. While it may be that Blommer did not
scour the range of possibilities, on the other hand the court is
not convinced, unlike defendants, that Blommer acted negligently
in attempting to mitigate damages.
Moreover, the record demonstrates that Champness had sufficient
opportunity to apprise Wagoner, if not Uzmann, of any alternative
theories as to salvage. Plainly, Champness admitted discussing
the problem with Wagoner around the time options were being
contemplated, but declined at the time to mention his "evacuator"
theory (Tr. 187-188). Given the highly speculative nature of
Champness' testimony on the witness stand regarding this option
(Tr. 186-191, 194), the court concludes that the most probable
reason Champness failed to provide this information except during
trial was that he did not consider it a viable option under the
circumstances at the time of the incident.
Therefore, plaintiffs are now entitled to receive an award of
damages equaling the difference in price between the salvage
value of the 353,430 lbs. and the cost of the sugar had it been
sound, or a net of $24,086.25.
Plaintiffs have interposed several distinct claims for damages
arising out of the shipment of a 4,000 m.t. bagged sugar cargo
from Antwerp to Toledo onboard the defendant vessel M/V NOSIRA
SHARON, to which defendants have asserted various responses. The
following summarizes the court's determinations concerning
plaintiffs' and defendants' allegations:
First, the complaint is dismissed as to defendant Fednav, in
personam, for failure of proper service under Fed.R.Civ.P.
4(d)(3). The complaint is not dismissed with respect to Nosira,
in personam, however, for the reason that defendants' theory
suggesting a lack of contractual privity between Nosira and
Blommer is incorrect.
Second, regarding the alleged short-delivery of 113,992 lbs. of
sugar, based on the physical evidence there is no justification
for plaintiffs' damages request; as to the three bags left
onboard which the court found contained 6,425.7 lbs. (based on
the calculated average yield per bag) plaintiffs are entitled to
$823.44 from the remaining defendants, Nosira in personam, and
the M/V NOSIRA SHARON in rem.
Third, liability resulting from the spillage of the 15,460 lbs.
exists, for which the remaining defendants must also compensate
plaintiffs in the amount of $1,981.19.
Fourth, with respect to the alleged loss of 353,430 lbs.
arising out of exposure of the cargo to contaminants, again
liability is established which entitles plaintiffs to damages
equal to the difference in price between the salvage value of
this portion of the stow and the cost to plaintiffs. or
Additionally, to insure plaintiffs are made appropriately whole
as a result of
their injuries, the court grants plaintiffs' request for
pre-judgment interest*fn11 commencing from May 5, 1987, the date
the vessel arrived in Toledo, Ohio. See Iligan Int'l Co. v. S.S.
JOHN WEYERHAEUSER, 372 F. Supp. 859, 869 (S.D.N.Y. 1974),
aff'd, 507 F.2d 68 (2d Cir. 1974) ([t]he award of interest on
the amount recovered is within the discretion of the admiralty
court . . . [citations omitted] . . . The allowance of interest
is the general rule, and disallowance is supportable only in the
face of exceptional circumstances).
Accordingly, the Clerk of the Court is directed to enter
judgment in favor of plaintiffs totaling an amount of $26,890.88
with interest and costs, as discussed supra.