The opinion of the court was delivered by: SHAPIRO
This is an action in admiralty for damages to cargo shipped in containers from Antwerp, Belgium to Philadelphia, Pennsylvania; it was instituted by plaintiff, Van Munching & Company, Inc. of New York ("Van Munching"), against the vessel M/V Star Mindanao ("Mindanao"), in rem, and her owner, Botelho Shipping Corporation ("Botelho"), her manager, Fairmont Shipping (H.K.), Ltd. ("Fairmont"), her time charterer, Star Shipping Company ("Star Shipping"), in personam. The court has jurisdiction pursuant to 28 U.S.C. § 1333. The issues were tried without a jury; the court now makes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).
Van Munching's maritime action in rem against the vessel Mindanao and in personam against her owner, Botelho, her manager Fairmont, and her time charterer, Star Shipping, alleged that the container cargo of beer on board the Mindanao shipped by Heineken Brouwerijen, B.V. ("Heineken") from the Port of Antwerp arrived in a damaged state at the Port of Philadelphia because of negligence in handling the cargo and the unseaworthiness of the Mindanao.
Mindanao, Botelho and Fairmont ("Botelho Group") asserted certain defenses and counterclaimed against Van Munching for negligence and breach of warranty and cross-claimed against Star Shipping for negligence in stowing and securing the cargo and for breach of the Time Charter Party Agreement.
Star Shipping asserted as defenses to Van Munching's claim excepted causes under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C.A. § 1304(2)(a),(i) and (q) and claimed that even if it were liable, Van Munching was contributorily liable for a share of the damages. Star Shipping cross-claimed against Botelho for breach of the Time Charter Party Agreement in providing an unseaworthy vessel for the voyage, for negligence of the vessel's crew and personnel in navigating and managing the vessel and inspecting the cargo during the Atlantic crossing, and for negligence in packaging and stuffing the beer cargo in the containers.
Prior to trial, Botelho Group settled with Van Munching for the sum of $225,000 and assignment of Van Munching's cause of action against Star Shipping. Trial was held on the claim of Botelho Group, as assignee of Van Munching, against Star Shipping and on Star Shipping's cross-claim against Botelho.
As assignee of Van Munching's claim, the Botelho Group seeks recovery from Star Shipping of the sum of $232,547.11 plus prejudgment interest at the rate of 10% from March 6, 1982 to the present.
On its cross-claim, Star Shipping seeks the damage and loss allegedly suffered as a result of the casualty in the amount of $255,481.86.
The vessel Mindanao is a carrier designed for carriage of bulk cargoes. It is 564 feet in length and 85 feet in breadth with seven cargo holds.
The vessel is operated under the flag of the Republic of Philippines. At all relevant times, Botelho was the owner of the Mindanao and Fairmont was her manager.
A Time Charter Party Agreement dated December 5, 1980 was entered into between the owner, Botelho, and the time charterer, Star Shipping; Star Shipping was the time charterer of Mindanao at all relevant times.
The shipper, Heineken, is a foreign corporation engaged in the manufacture and sale of Heineken Beer. The consignee, Van Munching, a United States corporation, is the exclusive importer of Heineken Beer in the United States.
On February 16, 1982, Heineken delivered to Star Shipping, at the Port of Antwerp, Belgium, 31 forty-foot containers stuffed with 29,260 cases and 2,592 barrels of Heineken Beer. These containers were sealed at Heineken's premises in Rotterdam, to be unsealed at Philadelphia, the port of destination.
Of the 31 containers, 22 had cases of bottled beer, nine had kegs of beer. There was a 32d container of mineral water. Each of the 22 containers of bottled beer had been stuffed with 1,330 cases on 19 pallets. On each of the 19 pallets there were 70 cases stacked in seven tiers of 10 cases each. The pallets were stowed at the walls of each container with free space down the center. Since the pallets measured 37-1/4" x 46-1/2" and a container was 8'6" x 40'
the free space down the center measured 27-1/2 inches. There was also free space at the rear of each container (the record does not permit an accurate statement; there was testimony that it was no more than 41 inches). (Tr. April 15, 1985, p. 49 Testimony of McCartney). Each pallet was 46-1/2 inches high and wrapped with a heavy gauge polyshrink wrap. Since a container was 8'6" high, there was a space between the top of the stow and the top of the container of at least 45 inches.
Each of the nine containers of kegs of beer had been stuffed with 288 barrels on 36 pallets. There were eight barrels on each of the 36 pallets. These barrels, 21 inches high, were held in place by hard plastic feet between 3/4 and one inch high, secured to the pallet. The pallets measured 48" X 44" and were placed in a container in two tiers of 18 pallets (two rows of nine pallets in each tier). Each pallet with barrels on it was 28 inches high and they were stacked two pallets high, so there was approximately 40 inches of free space at the top of a container. Since a container was 8'6" x 40', there was little, if any, free space at the sides, but there was at least 40 inches of free space at the rear end of the container with nothing by the way of dunnage or other securing material to restrict the barrels in the container except that there was a polystrap wrapped around the perimeter of the barrels on the after four pallets.
Before loading, Captain Arnesen, port captain for Star Shipping, inspected the containers and found them in apparent good order and condition. Accordingly, Star Shipping delivered to Heineken a "clean" Bill of Lading signed by Star Shipping on behalf of the Captain of the Mindanao; a letter dated February 12, 1982 signed by the Captain had authorized the Charterer or his agents to sign a Bill of Lading on his behalf as per terms and conditions of the Charter Party. This Bill of Lading acknowledged Star Shipping's receipt of the 31 forty-foot containers of beer in good condition.
Pursuant to Clause No. 8 of the Time Charter Party Agreement, the charterer, Star Shipping, had responsibility for loading and stowage of the cargo. The 31 containers, together with the one other container of mineral water, were loaded aboard the Mindanao, under deck, and stowed in Hold No. 2 of the vessel. Hold No. 2 was located between frames 143-163 of the vessel. The No. 2 starboard double bottom tank was located between frames 123 and 163. The No. 2 starboard ballast wing tank was also located between frames 123 and 163. The deck of Hold No. 2 was the tank top for the No. 2 starboard double bottom tank. The starboard ballast wing tank was connected to the starboard double bottom tank by means of two communication pipes located at the forward and aft ends of the tank.
The loading, stowing and securing of the 32 containers in Hold No. 2 under the supervision of Captain Arnesen, Star Shipping's Port Captain, and Captain Wilfred Malapad, the Chief Officer of the Mindanao, was according to a "securing plan" of Star Shipping except as mentioned hereafter. The "securing plan" called for stowage of the 32 containers, 40' X 8'6", in four tiers of eight containers each. Hold No. 2 was approximately 71 feet wide and 53 feet long.
A strip of wood dunnage, six inches wide, was placed on its bottom across the forward and aft end of the stow of containers. On top of the dunnage, single and double baseplates were positioned at both the forward and aft ends. Neither the dunnage nor the baseplates were secured in any way to the deck (or tank top).
The eight containers of the first tier were lowered into the hold one by one and stowed on these baseplates. The corner castings of each container had openings (or holes) fitting on top of these baseplates. Before the eighth container of the first tier was loaded and stowed, two extended baseplates were positioned at the port side bulkhead of Hold No. 2. These extended baseplates had two sides: one flat side and one cone side. The flat part was toward the bulkhead side of the hold and the cone side was inserted into openings on the bottom corner castings of the containers. These extended baseplates were designed and positioned to keep the containers away from the bulkhead side of the hold.
After the first tier of containers was stowed in this manner, single and double stackers were positioned on the upper corner castings of the first tier across the forward and aft end. These stackers had double beams (or peaks); one went down into the upper corner castings of the first tier, and the other went into the openings of the bottom corner castings of the second tier of containers (when eight containers were lowered one by one into the hold, the openings of the bottom corner castings of each container were placed on the upper beams of these stackers). The second tier was attached to the first tier in this manner.
The second tier and the third tier were connected the same way; single and double stackers were positioned on upper corner castings of the second tier across the forward and aft end before the third tier was loaded. The bottom corner castings of the third tier sat on the upper beams of these stackers holding the third tier to the second tier. In conformity with the "securing plan" of Star Shipping, lashing wires, two wires to each container, were then connected to the bottom of the third tier at one end and attached at the other end to D-rings welded to the forward and aft bulkheads of Hold No. 2. These wires were connected to the D-rings by tensioners, stretched and adjusted so the wires were tightened. After those wires were adjusted and tensioned, the fourth tier of containers was loaded and stowed on top of the third tier.
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 ...