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HERSHEY CHOCOLATE CORP. v. THE MARS

April 17, 1959

HERSHEY CHOCOLATE CORPORATION and A. C. Israel Commodity Co., Inc.
v.
THE MARS, her engines, boilers, machinery, etc. and all persons having any interest therein, and Westfal-Larsen & Co. A/S and A/S J. Ludwig Mowinckels Rederi, trading as Southern Cross Line, her owners



The opinion of the court was delivered by: EGAN

Libellants were the respective consignees and owners of a cargo of cocoa beans shipped from Ilheos, Brazil, to Philadelphia, Pennsylvania, aboard the respondents' steamship Mars. The beans, packed in large burlap bags, were received and loaded in good condition. When they arrived in Philadelphia, there was a shortage in weight because some of the bags were torn in the process of unloading and there was a degeneration or spoilage of the contents of other bags because of a lack of ventilation during the voyage.

Suit was instituted to recover for this damage. Libellants each contend that the spoilage was caused by excessive moisture or ship sweat, which resulted from inadequate ventilation, and that part of the loss was caused by the use of hooks and other mishandling by longshoremen during the unloading which caused the bags to tear and brought about a loss or slackage of weight.

 When the Mars left Brazil, the weather was good. The sailing was smooth and the prevailing temperatures were relatively constant. Beginning on January 15, 1955, the Mars encountered stormy seas and rough weather, accompanied by an abrupt drop in temperatures. To prevent the entrance of sea water and rain into the hold, the ventilation system of the Mars was covered over and cut off from January 15 to January 21, except for a short time on January 19, 1955.

 During the period January 18 to January 21, the temperature took a sharp drop from 21 degrees centigrade to 0 degree. Cocoa beans normally generate and give off heat and the sharp decline in temperature caused condensation commonly called sweat. As indicated, the sweating was caused by the 21 degrees drop in temperature in the period noted and this, coupled with the absence of ventilation and the internal heat generated by the beans, brought about the spoilage.

 Libellants produced an expert witness in the person of Captain Quistgaard who testified that the Mars could have avoided the bad weather which necessitated the shutting off of the ventilation with the consequent sweating, by pursuing another course. He testified that the Mars sailed right through the center of the storm instead of sailing around it. He testified that he considered the course taken by the Mars as an exhibition of bad seamanship. Thus he testified (p. 157):

 'I would go around the bad weather where it would not be necessary to cover the ventilation -- to cover the ventilation for any length of time.'

 Upon being questioned by the Court, the witness stated (p. 171):

 'The Court: Captain Quistgaard, may I ask you one more question? As I gather from your testimony, your conclusion is that there was poor seamanship here, rather than anything else that caused this damage?

 'The Witness: Yes, sir.

 'The Court: That is all.

 'Mr. Kildare: Would that have anything to do with the stowage of the cargo, or are we dealing with the poor seamanship with reference to just this particular choice of course, or what are you talking about? What brought about the damage here, in your opinion?

 'The Witness: Heading right into the storm and thereby having to shut off his ventilation for six days.'

 The rights of the parties herein are governed by the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et ...


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