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INTERCONTINENTAL TRADING CO. v. M/V ZENIT SUN

May 4, 1988

Intercontinental Trading Co., Inc.
v.
M/V Zenit Sun, her engines, tackle, equipment, appurtenances, etc., in rem and Compania Sud-Americana de Vapores and Nordia Shipping AB and ITO Corporation



The opinion of the court was delivered by: VAN ANTWERPEN

 VAN ANTWERPEN, J.

 In this non-jury matter, plaintiff seeks damages for frozen plums under the Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315 (West 1975 & Supp. 1987). From the trial on April 11, 1988, we make the following findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

 FINDINGS OF FACT

 1. Plaintiff, Intercontinental Trading Co., Inc. (plaintiff), is the shipper and owner of 4,480 cases of Nubiana plums which were shipped on the Motor vessel Zenit Sun (vessel) from January 21 to February 6, 1986. Defendants Compania Sud-Americana de Vapores and Nordia Shipping AB (defendants) owned and operated the vessel. Defendant ITO Corporation was removed from this case by stipulation.

 2. The plums in question were grown in Chile and transported by truck to the Port of Valparaiso where they were loaded on the vessel. Plaintiff's expert witness, a surveyor named John Hughes (Hughes), testified that he was in the Port of Valparaiso in late 1984 and that fruit such as plums is routinely transported to ships without prior refrigeration.

 3. The plums were in crates and the bills of lading showed the plums as "clean on board" and did not note any damage. The official export records of the Republic of Chile have no indication of quality but do show that the plums met the "exigible requirements of the regulations for exportation purposes." (No evidence of these regulations was introduced nor will we notice any).

 5. The vessel holds were fitted with temperature monitors which were designed to report temperature every two hours (although four hour intervals are sufficient) and sound an alarm if certain limits were exceeded. The reefer record shows that during the voyage the temperature in Hold 3 did not go below 0.7 degrees celsius. Plums do not freeze unless a temperature of at least minus 2.0 degrees to minus 2.4 degrees celsius is reached, and nectarines do not freeze unless a temperature of minus 1.3 degrees to minus 1.7 degrees celsius is reached.

 6. Mr. Hughes testified that the reefer temperature records are not reliable unless the temperature sensors are calibrated. However, Caj Johansson, the 2nd Engineer of the vessel, said there was no calibration prior to the voyage and was vague as to when, if ever, a calibration was done, saying that a calibration by "eyes" "used to be done once a year but I don't remember if we ever done just during my time."

 7. When the plums were unloaded at Philadelphia, they were damaged from freezing, showing soft, wet, translucent fruit. Mr. Snyder of the U.S.D.A. found frozen fruit in the top and side pallets. On a more detailed inspection, Mr. Hughes found frozen fruit throughout the shipment. The nectarines were not frozen.

 8. Because time is of the essence in marketing damaged fruit, the entire lot had to be sold for a total of $ 12,616.25 whereas it could have brought more had it not been damaged. 9. The commodity summary analysis shows the following plum prices for February 6, 1986: SIZE PRICE 60 - 70's $ 7.00 - $ 8.00 Few $ 9.00 80 - 90's $ 6.00 - $ 6.50 110 - 120's $ 5.00 - $ 5.50

 10. Plaintiff urges on Exhibit #9 (not received) a probable undamaged sales yield of $ 30,182.75, which is consistent with the quantities and sizes shown on plaintiff's Exhibits #6, #7, and #8, which were admitted for a net loss due to freezing of $ 17,566.00 ...


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