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December 4, 1979

M/V YINKA FOLAWIYO, her engines, machinery, tackle, apparel, etc. and MARITIME ASSOCIATES (INTERNATIONAL), LTD. and NIGERIAN GREEN LINE LTD.

The opinion of the court was delivered by: BECKER

I. Preliminary Statement

This suit on a contract of carriage alleging a short delivery raises interesting questions with possible ramifications for the conduct of the cocoa trade between foreign and American ports. The cocoa trade involves the shipment of raw cocoa beans packed in jute or burlap bags transported pursuant to ocean bills of lading issued by the carrier. The problem in this case arises out of an anomaly of the cocoa trade: because cocoa beans may gain or lose weight during ocean carriage because of variation in their moisture content resulting from changing humidity, trade custom provides that contracts for raw cocoa beans can be satisfied by the seller by the delivery of any amount within 11/2% Of the stated weight of the contract. Under the facts adduced at a bench trial, the buyer, plaintiff in this action, had ordered a total of 3,000 net metric tons of cocoa beans. Although approximately 3,026 net metric tons were delivered to the plaintiff in Philadelphia, plaintiff argues that it was entitled to receive approximately 3,033 net metric tons, the amount loaded on board the defendant's vessel by the seller in pursuance of the contract, and an amount still well within the 11/2% Tolerance of the contract.

 The defendant carrier rails against this result, outraged at the suggestion that the quantity terms of a bill of lading might not necessarily mean what they say. Urging the sanctity of the bill of lading, defendants stress that plaintiff received more than the amount specified on the bill of lading. They also express concern over the downstream purchaser in good faith of the negotiable bill of lading, making in terrorem predictions regarding the effect the proposed result would have on the orderly conduct of the cocoa trade. *fn1" Furthermore, defendants point out that some cocoa bags always break in carriage, and thus invoke the inherent vice and defective packaging exceptions in the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1304(2)(m) & (n).

 Plaintiff rejoins that it is not bound by the recitals in the bill of lading, that it has presented a prima facie case showing that the seller delivered more cocoa to the carrier than plaintiff received, and that unless defendants can bring this case within one of the exceptions listed in Section 4 of COGSA, 46 U.S.C. § 1304, it is entitled to recovery. This, plaintiff maintains, defendants have not done.

 This case has been troubling to us because of the facial appeal of defendants' contentions. We have examined with great care all possible defenses and have constructed numerous hypothetical situations to test our result. Despite such efforts, we must find in favor of the plaintiff. We turn first to our findings of fact. This opinion constitutes our findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

 II. Findings of Fact

 Plaintiff, Internatio, Inc., is a corporation with an office and principal place of business in New York, New York, and is engaged, Inter alia, in the business of importing and reselling bags of cocoa beans. Defendant M/V YINKA FOLAWIYO (the YINKA) is the Nigerian vessel on which the cocoa which is the subject of this action was shipped. Defendant Nigerian Green Line Ltd. is a foreign corporation which, at all times material hereto, owned and/or operated the YINKA as a common carrier of goods by sea between ports throughout the world, including those of Lagos, Nigeria and Philadelphia, Pennsylvania. Defendant Maritime Associates (International), Ltd. is a foreign corporation which, at all times material, was port agent at Lagos, Nigeria for defendant Nigerian Green Line Ltd. Defendants M/V YINKA FOLAWIYO and Maritime Associates (International), Ltd. were dismissed from this action for lack of evidence on motion at the conclusion of the plaintiff's case.

 On six occasions in 1976 plaintiff contracted with cocoa brokers in London for the purchase of a total of 3,000 net metric tons of cocoa under the terms of a standard contract of the Cocoa Association of London, Ltd. The seller was the Nigerian Produce Marketing Board, which acts as seller for all cocoa produced in Nigeria.

 In June and July of 1976, at the port of Lagos, Nigeria, 150,400 bags of cocoa beans weighing approximately 9,400 net metric tons were loaded aboard the YINKA for transportation to Philadelphia. Maritime Associates, on behalf of the Nigerian Green Line, issued twenty-five bills of lading, numbered sequentially from one to twenty-five, covering the entire shipment, the number of bags per bill of lading having been specified by the Nigerian Produce Marketing Board. All bags bore identical markings, and none were physically segregated or identified to any of the several consignees of the YINKA's cargo.

 The following bills of lading subsequently came into the possession of the plaintiff in satisfaction of its contracts:


 No exceptions to the sound order and condition of the beans were noted on the bills of lading. *fn3" In fact, plaintiff contracts with its seller that it will only accept shipments carried pursuant to clean bills of lading. Each of the bills of lading received by plaintiff provided that the goods were to be out-turned in the same condition as noted thereon.

 The port captain at Lagos, Nigeria, Mr. Iwenofu, testified as to the customary loading practices at the port of Lagos. His testimony showed that bags of cocoa beans are loaded individually into slings of 15 to 20 bags at the shed of the Nigerian Produce Marketing Board. At the time the slings are made up, any torn bag is removed, so that only sound bags are included. The slings are then loaded onto trucks that deliver them to the dock, from where they are hoisted onto the vessel. Although bags on the interior of the sling cannot be observed once the slings have been made up, any bag which is on the outside and which becomes torn during loading is removed. Once on board ship, the bags are stacked individually in the hold by hand, and again, any bags that may have been damaged during loading are removed. Mr. Iwenofu testified further that he remembered the loading of the YINKA in the summer of 1976 because it was his first vessel, and that the customary practice was followed with the cocoa which subsequently found its way into plaintiff's possession. We credit that testimony.

 Further testimony established that some bags of cocoa beans always become torn in the normal shipment because the weight of the bags, coupled with the rolling of the ship, will split weak seams; carriers employ coopers to repair those bags. Moreover, some bags are always damaged in discharge. Such losses can be reduced, however, when the bags are treated with care during carriage and discharge. Although no evidence of trade custom was presented on the point, it was established that the Nigerian ...

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