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VELCO ENTERPRISES v. S.S. ZIM KINGSTON

July 20, 1994

VELCO ENTERPRISES, LTD., Plaintiff(s),
v.
S.S. ZIM KINGSTON, its engines, and boilers, and ZIM ISRAEL NAVIGATION CO., LTD., ZIM CONTAINER SERVICE, and ZIM-AMERICAN ISRAELI SHIPPING CO., INC., Defendant(s).


Sprizzo


The opinion of the court was delivered by: JOHN E. SPRIZZO

SPRIZZO, D.J.,

 The above-captioned admiralty action comes before the Court for judgment without a trial. The parties submitted to the Court one stipulated exhibit ("Stip. Ex. A"); plaintiff's exhibits A through E ("Pl. Exs."), which include the depositions of defendants' witnesses, Guillermo Amiama, a Vice President of Operations and Traffic for B & R Shipping Co., the defendants' ship agent and stevedore in Santo Domingo, Dominican Republic, and George Montt Butler, Esq., defendants' expert on Dominican law; defendants' exhibits A through F ("Def. Exs."); and the affidavits of defendants' two witnesses. For the reasons that follow, judgment shall be entered for the plaintiff.

 BACKGROUND

 Plaintiff Velco Enterprises, Ltd., ("Velco"), is the owner and shipper of a certain shipment of 800 bags of synthetic resin (polyethylene) that is valued at $ 21,164.00 (the "shipment"). See Pl. Exs. A, B. Defendants are Zim Israel Navigation Co., Ltd., Zim American Israeli Shipping Co., Inc., and Zim Container Service, a foreign corporation and two United States corporations, respectively, engaged in business as common carriers of merchandise by water for hire, and the M/V ZIM KINGSTON, the ship that carried the plaintiff's shipment (collectively, "Zim"). See Joint Pre-Trial Order dated February 8, 1993, Undisputed Facts PP 3-5; see also Verified Complaint P 4.

 Velco tendered the shipment to Zim on or about April 11, 1990, at the Port of Houston, Texas, for carriage to Santo Domingo, Dominican Republic, aboard the M/V ZIM KINGSTON. See Def. Ex. C, D. Zim held the container at the request of Velco's freight forwarder, P.J. Caputo Shipping Co., Inc., to await the next voyage of the M/V ZIM KINGSTON. Def. Ex. C. Pursuant to Velco's instructions, however, the container was not shipped on that voyage, but held on the Houston pier. Def. Ex. D. Due to the delay in shipment, Zim issued an invoice to Velco for $ 327.15, which included a container storage charge for the period April 11, 1990 to May 9, 1990. Def. Ex. F. Velco requested further delays in the shipment of the container until June 12, 1990, when it directed Zim by telefax to ship the container using the original non-negotiable bill of lading. Def. Ex. E.

 The defendant M/V ZIM KINGSTON carried the cargo on the, M/V ZIM KINGSTON pursuant to its non-negotiable, straight bill of lading, No. ZIMUIAH2833, dated March 13, 1990. See Pl. Ex. C; Stip. Ex. A. The bill of lading lists Velco as the shipper of the cargo, and "CHASE MANHATTAN BANK, AV. J.F. KENNEDY, STO. DOMINGO, DOM. REPUB." as the consignee. See id. "TECHNIPLAST, S.A. ANIBAL DE ESPINOSA, SANTO DOMINGO, REP. DOMINCANA" is listed on the bill of lading as the notify party, and was the intended receiver to whom Velco sold the cargo. See id.

 The M/V ZIM KINGSTON, Voyage 60, arrived in the Dominican Republic at the port of Rio Haina on June 27, 1990, Amiama Dep. 43; Butler Dep. 50, whereupon the shipment was discharged from the M/V ZIM KINGSTON into the custody of the Dominican Port Authority pursuant to port regulations. Amiama Aff. P 3, 4. On July 16, 1990, the ship's port agent authorized the release of the cargo by signing a "tarja," a receipt entitled "IMPORTATION: RECEPTION - DELIVERY" issued by the Dominican Port Authority to the ship's port agent to verify receipt of the manifested cargo. Def. Ex. B. According to port custom, the tarja "is issued not [sic] until the consignee comes to take delivery," Amiama Dep. 45, because the cargo should not "be delivered from the terminal without a tarja having been completed." Amiama Dep. 55.

 Despite the issuance of the tarja, Velco was not paid for the cargo, *fn1" which Velco's invoice indicates was worth $ 21,164.00. See Pl. Ex. B. The bill of lading was subsequently returned to Velco by the holder, Chase Manhattan Bank. Velco then commenced this action on December 20, 1991. See Complaint. Defendant filed an Answer on February 7, 1992. Following several Pre-Trial Conferences and the completion of discovery, and upon consent of all parties, this Court tried this case on the facts and evidence submitted by the parties.

 DISCUSSION

 Liability of the carrier for the period prior to loading and after discharge is governed by the Harter Act, 46 U.S.C. app. §§ 190-196; Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 816 (2d Cir. 1971); Gold Medal Trading Corp. v. Atlantic Overseas Corp., 580 F. Supp. 610, 613 (S.D.N.Y. 1984), which imposes a duty on a carrier to make proper delivery of the cargo and prohibits and nullifies attempts by carriers to "be relieved from liability for loss or damage arising from negligence, fault, or failure in . . . proper delivery . . . ." 46 U.S.C. app. § 190.

 Moreover, the Pomerene Bills of Lading Act, 49 U.S.C. app. § 81 et seq., provides that a carrier operating under a straight bill of lading (such as that in this case) is justified in delivering the goods to "the consignee in a straight bill for the goods." 49 U.S.C. app. § 89. The Pomerene Act also provides that "where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier shall be liable to anyone having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by . . . section 89 of this title . . .," i.e., to a person other than the consignee in possession of bill of lading. 49 U.S.C. app. § 90. Furthermore, delivery to a person not entitled to the goods without production of the bill of lading is prima facie evidence of a conversion of the goods and a breach of contract. See Allied Chemical Int'l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 481 (2d Cir. 1985).

 Velco contends that Zim's own shipping agent's testimony establishes that Zim or its agents released the goods without requiring the person receiving the goods to produce the original bill of lading, and that therefore plaintiff is entitled to judgment as a matter of law for misdelivery and conversion. For the reasons that follow, this Court agrees.

 Zim does not dispute that it was obliged by the applicable statutory law to make proper delivery of Velco's cargo. See Defendant's Post-Trial Memorandum of Law at 14. However, Zim argues that by discharging the cargo into the custody of the Port Authority as required by Dominican Republic Law No. 70 of December 17, 1970, Official Gazette No. 9210 of December 18, 1970, ("Dominican Law No. 70"), see Def. Ex. A, *fn2" it satisfied its delivery obligation. See also Farrell Lines Inc. v. Highlands Ins. Co., 696 F.2d 28, ...


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