third tier and the corresponding openings of the bottom corner castings of the containers on the fourth tier. Then these locks were twisted 90 degrees so that the containers of the third tier and fourth tier were attached and the third and fourth tiers became in essence one unit. At the top tier four securing beams not required by the "securing plan" were added. All the material used for the stowage and securing of the cargo was supplied by Star Shipping.
After the stowage and securing of the containers according to plan, Mindanao's chief officer Captain Malapad, requested Star Shipping's Captain Arnesen to provide additional fastenings. Captain Arnesen added eight chains; four aft and four forward. The chains were connected to the fourth tier of containers and to D-rings crosswise. Both Captains then inspected the stow and were satisfied. The stowage operation began at 0800 hours and was terminated at 1100 hours.
The vessel sailed from Antwerp on February 16, 1982. On February 19, 1982, the vessel encountered a storm with very rough seas. The vessel was pitching and rolling heavily. The stormy weather continued through March 1, 1982. The containers were in good condition on two inspections of Hold No. 2 on February 21 and February 23, 1982. On February 25, 1982, at 0830 hours, vessel personnel discovered the collapse of the containers and salt water and beer in Hold No. 2. The damage was reported by the Captain the same day.
When the Mindanao arrived at Philadelphia on March 2, 1982, surveyors for the parties went on board to determine the extent of the damage. The cost of repairing 21 containers would have far exceeded what it would have cost to replace them; 11 of the 32 containers were only partially damaged. The first or bottom tier had seven containers completely damaged; second tier containers were also cracked but to a lesser degree than the first tier. In the upper two tiers the damage was less extensive than in the bottom two tiers. (Tr. April 15, 1985 pp. 78-79; Tr. April 16, 1985 p. 31). After discharge of the containers and cleaning of Hold No. 2, the surveyors also inspected the hold and found many cracks on the deck of the starboard side. The cracks were common with the No. 2 port and starboard double bottom tanks. The bottom corner castings of the bottom tier containers in Hold No. 2 lined up with the cracks that were found at the forward end of that hold. Chains and lashing wires that were to secure the containers in the hold were found broken or parted; single and double stackers were also found twisted.
On March 4, 1982, Captain Batista sent a letter to Heineken and Van Munching that alleged the cargo damage was caused by defective stuffing and packaging of the cases and kegs of beer within the containers. But the parties to the action have stipulated that Captain Batista had no prior experience on container ships and did not know what caused the containers to collapse (Stipulated Facts at paras. 33 and 50).
The cause or causes of the cargo damage must be determined to fix liability or apportion liability between the parties. The burden of proof on Van Munching's claim (assigned to Botelho) against Star Shipping is governed by COGSA, 46 U.S.C.A. § 1300 et seq. The burden of proof on the cross-claim of Star Shipping against Botelho for breach of the Time Charter Party Agreement is governed by English Law pursuant to Clause No. 54 of the Charter Party Agreement.
A. Botelho, Assignee of Van Munching, Against Star Shipping:
Botelho was assignee of Van Munching's claim. Under COGSA, 46 U.S.C.S. §§ 1300-1315, the plaintiff established a prima facie case by proving that the carrier received cargo in good condition but unloaded it at destination in damaged condition. Terman Foods, Inc. v. Omega Lines, 707 F.2d 1225 (11th Cir. 1983); Nissho-Iwai Co., Ltd. v. M/T Stolt Lion, 617 F.2d 907, 912 (2d Cir. 1980); Associated Metals & Minerals Corp. v. M/V Rupert de Larrinaga, 581 F.2d 100, 101 (5th Cir. 1978); Vana Trading Co., Inc. v. S/S "Mette SKOU ", 556 F.2d 100, 104 (2d Cir. 1977); Nichimen Company v. M.V. Farland, 333 F. Supp. 691 (D.C.N.Y. 1971), modified and aff'd on appeal, 462 F.2d 319, 325 (2d Cir. 1972).
A clean Bill of Lading is prima facie evidence that the carrier received the goods it describes and creates a rebuttable presumption that goods were delivered to the carrier in good condition; this makes plaintiff's prima facie case under COGSA, 46 U.S.C.A. § 1303(4). Terman Foods v. Omega Lines, 707 F.2d at 1227. Van Munching's Bill of Lading, signed by Star Shipping was clean; that is, absent any description of damage. There is no dispute that the containers of beer were in damaged state when delivered at the port of destination. Therefore, Van Munching-Botelho established a prima facie case.
To avoid liability Star Shipping must show either that the damage was not caused by its negligence or that the damage resulted from one of the "excepted causes" under COGSA, 46 U.S.C.A. § 1304(2).
See Vana Trading Co. v. S/S "Mette SKOU," 556 F.2d at 105; Nichimen Company v. M.V. Farland, 333 F. Supp. at 697. Star Shipping first tried to prove its lack of negligence in stowage and securing the cargo under its "securing plan." COGSA § 1304(2)(q). But Captain Arnesen, who supervised the stowage and securing of the containers on behalf of Star Shipping, was not experienced in stowing containers on bulk carriers like the Mindanao and the cargo in Hold No. 2 was improperly stowed and secured.
Upon consideration of all the testimony and exhibits, Captain Allen's expert opinion
of the method of stowage and securing that should have been utilized to prevent the collapse was most persuasive:
It should have been done by, first of all, fixing the corner areas of both the front and rear with a substantial securement to the deck, with either the corner-type device or with an interlocking fixture, which would have protruded up into the bottom of the container. And it should have been secured across the front of the stow from port to the starboard, or starboard to port, and both the forward and after end with some kind of restraining device that would have prevented other movement of the individual containers in the -- either a forward or after position.