Dorsid Trading Company v. S/S FLETERO

342 F. Supp. 1, 1972 U.S. Dist. LEXIS 14268
CourtDistrict Court, S.D. Texas
DecidedApril 11, 1972
DocketCiv. A. 69-H-963
StatusPublished
Cited by9 cases

This text of 342 F. Supp. 1 (Dorsid Trading Company v. S/S FLETERO) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsid Trading Company v. S/S FLETERO, 342 F. Supp. 1, 1972 U.S. Dist. LEXIS 14268 (S.D. Tex. 1972).

Opinion

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

The plaintiff, Dorsid Trading Company, brought this suit against the S/S FLETERO, its owners, operators and charterers, and Strachan Shipping Company, the discharging stevedore, to recover the sum of $14,845.27 as alleged damages, caused by rust and improper handling to a shipment of oil well tubing and casing. The cargo was carried on board the vessel from Buenos Aires, Argentina, to Houston, Texas, under Bills of Lading Nos. 6 through 17 inclusive, and discharged in Houston during the period May 17 through May 21, 1968.

The plaintiff (Dorsid) is a Texas corporation, which at all times material hereto and for several years previously has been engaged in business as an importer of steel products from Argentina and other nations for distribution and sale to the wholesalers of steel products in the Houston area. Defendant Empresa Lineas Marítimas Argentinas (ELMA) is a foreign corporation which was the owner and operator of the S/S FLETERO and the carrier under the bills of lading. Defendant Strachan Shipping Company (Strachan) is an independent stevedoring contractor which was employed by ELMA to discharge cargo from the S/S FLETERO including the cargo made the subject matter of this suit on or about May 17, 1968.

On or about April 14, 1968, the shipper, Dalmine Siderca, an Argentine company engaged in business in Argentina as an exporter of steel products, delivered to the carrier ELMA at Buenos Aires a cargo consisting of 9,642 pieces of oil well tubing and casing for carriage to Houston aboard the FLETERO. ELMA was a carrier of that shipment within the meaning of the United States Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., and the ocean carriage involved in this action is subject to that Act.

The FLETERO arrived at the Port of Houston on or about May 17, 1968. The pipe consigned to Dorsid was discharged by Strachan directly from the vessel into open rail ears and motor trucks engaged by Dorsid for carriage to the premises of Consolidated Bonded Warehouses in Houston, pursuant to instructions received from Dorsid. Both Dorsid and Consolidated Bonded Warehouses are corporations in which the stock is wholly owned or controlled by Mr. Sidney Slav-in, the president of both companies, and his wife.

Each bill of lading, numbers 6 through 17, under which this shipment of pipe was carried contained on its face ■the following typed clause:

Material is acknowledged as being loaded into vessel with couplings all facing forward and shall be discharged in the same manner.

Dorsid’s claim for bending and handling damages to the pipe and for rust damage, an aggregate amount exceeding $14,000, was paid by its cargo underwriters in return for a full assignment of Dorsid’s interests in such claim. The cargo underwriters in turn negotiated a full settlement for $2,500 and released ELMA. Dorsid now contends that it re *3 tained for its own. account a separate claim in the sum of $689.85 representing its costs of turning 404 pieces of oil well easing so that all of the couplings faced in the same direction, pursuant to the above clause in the ocean bills of lading.

In accordance with the requirement of COGSA, 46 U.S.C. § 1303(6), Dorsid notified ELMA through its agent Strachan on May 20, 1968, within three days of delivery, of claims “for any and all damages and/or shortages on the above shipment,” referring to bills of lading Nos. 6 through 17. See plaintiff’s Exhibit 11. It is now contended by the carrier that, while this letter was notice for bending and rust damages and shortages to the pipe itself, it was not proper notice for any claim of damages for mishandling or turned couplings.

In addition to the question of proper notice, there are great discrepancies in the evidence as to what amount of “turned” or mishandled pipe actually existed, as to where and at what point in time the alleged turning occurred, and as to what amount, if any, of actual damage was sustained by reason of the alleged mishandling.

I.

We turn first to the question of proper notice. If the Court accepts defendant ELMA’s theory that the letter of May 20 was not notice as to mishandling or turning, section 1303(6) of COGSA creates a prima facie case that the cargo was delivered by the carrier in the condition described in the bills of lading, Otis McAllister Export Co. v. Grancolumbiana (New York), Inc., 216 F.Supp. 756, 757 (E.D.La.l963). See also, W. Poor, Charter Parties and Ocean Bills of Lading § 64 at 164 (5th ed. 1968). From the proof forthcoming at the trial, this Court is convinced that the notice letter sent by the plaintiff was sufficiently broad so as to encompass a claim for mishandling or turning damage, and the Court therefore finds that the' notice requirements of section 1303(6) were met. However, even though this Court finds that sufficient notice was given, plaintiff must still satisfy his burden by demonstrating not only that cargo was received by the carrier in good condition, but also that such cargo arrived at its destination in a damaged state. Interstate Steel Corp. v. S/S “CRYSTAL GEM”, 317 F.Supp. 112, 118, 1970 A.M.C. 617 (S.D.N.Y. 1970).

Insofar as proof of damage is concerned, the Court notes that defendant ELMA had no opportunity to sight the pipe before it was unloaded by plaintiff’s crews at the yard of Consolidated Bonded Warehouses, although delivery ■was actually complete when the pipe was loaded into rail cars and trucks from the ship’s tackle. Calcot, Ltd. v. Isbrandtsen Co., 318 F.2d 669 (1st Cir. 1963), 1963 A.M.C. 1993. The failure of the plaintiff to prove damage at the time of delivery is especially critical in a case such as this one in which- the alleged “damage”, or “turning” manifests itself as a result of actions entirely unrelated to the initial alleged mishandling.

There is testimony to the effect that two surveys were made of the shipment of pipe in order to assess the extent of damage (testimony of Sidney Slavin; defendant ELMA Exhibit 3). Mr. Slav-in testified that Captain R. L. Wynne conducted a survey on or about June 19, 1968, but Mr, Slavin had no recollection of Captain Wynne’s findings. Captain George J. Salter, an independent marine ship and cargo surveyor, was employed by ELMA to determine the cause and extent of alleged damage to the shipment of pipe in question. On June 27, 1968, he conducted a survey on .the premises of Consolidated Bonded Warehouses accompanied by Mr. Slavin. He reported minimal handling damage (physical damage) to 177 pieces of tubing and estimated that the. cost of repairs to return the pipe to a serviceable condition would be between $700 and $800. No mention . of mishandling or turning was made to Captain Salter; and no findings were made by the Surveyor in this regard. In fact, his testimony was to the effect that he had nev *4 er handled a claim for mishandling or turning, nor could he recall any consignee other than Dorsid making such claim.

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Bluebook (online)
342 F. Supp. 1, 1972 U.S. Dist. LEXIS 14268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsid-trading-company-v-ss-fletero-txsd-1972.