# Petition — Flota Mercante Grancolombiana, S. A. v. Vana Trading Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2400%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 892 ## Text Supreme Court, U. S% t tm FILED 1977 IN THE MICHAEL RODAK, JR., CLERK Supreme Court of the United States e OCTOBER TERM 1977 Docker No. ..... " 7 . 26 8 ~~ — - Frota MercantTe GRANCOLOMBIANA, S.A., Petitioner, against Vana TravineG Co., Inc., Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE UNITED STATES, FOR THE SECOND CIRCUIT Renato C. GIALLoRENzI Attorney for Petitioner 67 Broad Street New York, New York 10004 | | TABLE OF CONTENTS PAGE Citations to Opinions Below ................+.005- 1 7 Pe erry PS See ey OT 2 Questions Presented ....... Letikdevemiewaaek ane 2 Statutory Provisions Involved .................55. 2 IE OE Te GOOD oo og cance c kcnsccascesenssenes 3 Reasons for Granting the Petitioner a Writ of PO Neer eT Tr eee eT eT ree 4 Re: The first question presented: Did the Sec- ond Circuit err in not applying the doctrine of proportionate fault?................... 4 Re: The second question presented: Did the Second Circuit err in not dismissing Re- spondent’s complaint after Petitioner had established the defense of insufficiency of SEND oe cbesccdveddetecdscebh bite des 8 Did the Second Circuit err by not applying the doctrine of Niel Maersk? ............4.45. 9 I i ces decease ws 11 Appendix A, Findings and Opinion by Milton Pollack, TERE FoR addced dada sewssesesecenescocavess la Appendix B, Judgment of District Court ......... 10a Appendix C, Opinion of Court of Appeals ......... 12a Appendix D, Order of Reversal of Court of Appeals 23a ii TABLE OF CONTENTS TaBLe oF Cases PAGE Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106 TED ahatciniecadaindsdeheutadeicdjk: 5, 6 J. Howard Smith, Inc. v. S.S. Maranon, 501 F.2d 1275 (2d Cir. 1974), cert. denied 420 U.S. 975 (1975) 9 Lekas and Drivas, Inc. v. Goulandris, 306 F. 2d 425 (2nd Cir. 1962) ...... chievulvesedsaneeaacete 10, 11 Niel Maersk, 91 F. 2nd 932 (2 Cir. 1987), cert. denied ee We CES Cdivcc cxaveawadeedaens 2, 4, 8, 9, 10 Schnell v. The Vallescura, 293 U.S. 296 ( 1984)..... 2, 4, 7, SUI bis arlan @iinebaiah iat Sos Pe a 6, 7 SIN term “susceptible” in this context Judge Pollack would seem to have meant only that the yams were particularly able to be affected by the conditions under which they were packed, stowed and unloaded and not that *Jiad the trial court found the ship unseaworthy due to a faulty or improper ventilation system, there is authority for an equa! division of damages as between the owner and the charterer. International Produce Inc. v. 8.8. Frances Salman, 1975 A.M.C. 1521, 1546-47 (S.D.N.Y. 1975). *The Missouri Pacific case was decided under the Interstate Commerce Act rather than COGSA. Nevertheless, the fungibility of the definition of inherent vice is indicated by the Missouri Pacific Court’s use of a quotation from Schnell v. The Vallescura to sup- port one part of its holding. 377 U.S. at 138 n.7, quoting 293 U.S. 296, 305-06 (1934). 18a Appendix C, Opinion. their condition was such that they would have deteriorated merely through “a lapse of time.” Moreover, Judge Pol- lack found that “the damage suffered by the cargo was caused by the conditions to which it was subjected in transit, and not by any inherent defects,” and that “the damage was due to a combination at least of the circum- stances created or contributed to by the shipper and the Charterer and was enhanced by the manner of performance - of I.T.O. of its obligations.” 415 F. Supp. at 887. Specif- ically, the shipper’s packing of the yams—“which produced a cooking effect”—and the charterer’s stowage of the yams —“which caused the yams to continue the cooking process and decay”—combined, along with the conduct of I.T.O., to cause the damage. /d. The primary problem concerns the trial court’s reliance on the Supreme Court’s recent decision in United States v. Reliable Transfer Co., supra, which extended the doc- trine of proportional fault to property damage in mari- time collisions and stranding cases, and its failure to apply the correct rule for apportioning damages as determined by the Supreme Court over forty years ago in Schnell v. The Vallescura, 293 U.S. 296 (1934). As was stated in 7 Although Schnell v. The Vallescura was decided before the of COGSA in 1936, the rule of the case has been restated and followed often in the Second Circuit since that time. J. Gerber & Co. v. S.8. Sabine Howaldt, 437 F.2d 580, 588 i ; Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426, 431-32 (2d Cir. 1962) ; Great Atlantic & Pacific Tea Co. v. 363, 366-67 (2d Cir, 1945); Pioneer Import Corp. v. The Lafcomo, 138 F.2d 907, 908 (2d Cir. 1943), cert. denied, 321 U.S. 766 SE me ee 19a Appendiz C, Opinion. David Crystal, Inc. v. Cunard S.8. Co., 223 F. Supp. 273, 287 (S.D.N.Y. 1963), aff’d, 339 F.2d 295 (2d Cir. 1964): “There is no rule in cargo damage cases which re- quires the damages to be either equally apportioned among the parties negligent as in mutual fault col- lision cases . . . or to be proportioned among the par- ties at fault as in maritime personal injury cases. . . .” The Court’s action in Reliable Transfer Co., while bringing the rule in collision cases into line with that in personal injury cases, does not alter this situation. Under Sections 3-4 of the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. §§ 1303-04, a consignee or shipper such as Vana who wishes to recover against the carrier for damage to goods bears the initial burden of proving both delivery of the goods to the carrier, in this case Flota, in good condition, and outturn by the carrier or by the stevedore, for whose conduct the carrier is re- sponsible, in damaged condition. M.W. Zack Metal Co. v. S.S. Birmingham City, 311 F.2d 334, 337 (2d Cir. 1962), cert. denied, 375 U.S. 816 (1963). The trial court found that Vana had sustained that burden, and we do not find this to be “clearly erroneous.”’ McAllister v. United States, 348 U.S. 19, 20 (1954).* * There was evidence in the form of the certificate by the Insti- tuto Colombiano Avropecuario of the Republic of Colombia Minis- try of Agricultu:. (stipulated to by both Vana and Flota) and testimony by the chief officer of the vessel and by the shipper, Andina’s general manager, that the cargo at time of shipment was in good order and condition. However, the consignee’s burden does not mean that it must always introduce direct evidence that the cargo was in good condition when shipped. It may additionally meet its burden by showing, as was also done here, from the condi- tion of the cargo as delivered or otherwise, that the damage was caused by the carrier’s negligence and not by any inherent vice in the cargo. Elia Salzman Tobacco Co. v. 8.8. Mormacwind, 371 F. 2d 537, 539 (2d Cir. 1967). 20a Appendiz C, Opinion. When the consignee has proved its prima facie case, the burden shifts to the carrier to show that the loss or damage falls within one of the COGSA exceptions set forth in 28 U.S.C. §1304(2).° J. Gerber € Co. v. SS. Sabine Howaldt, 437 F.2d 580, 588 (2d Cir. 1971); see Schnell v. The Vallescura, supra, 293 U.S. at 303. Flota satisfied that burden according to the tfial judge in that he found that the yams had been packed in “non-breath- ing” cartons in “unsuitable wrapping for such a com- modity” thus establishing the section 1304(2)(m) excep- tion, “insufficiency of packing.” 415 F. Supp. at 887. Once a COGSA exception is established, the burden then returns to the shipper or consignee to “show that there were... concurrent causes of loss in the fault and ne- glect of the carrier.” J. Gerber & Co. v. S.S. Sabine Howaldt, supra, 437 F.2d at 588; Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426, 431-32 (2d Cir. 1962); see Schnell v. The Vallescura, supra, 293 U.S. at 305. The court below found that Vana had sustained this further burden by showing that the stowage of the yams some thirteen tiers high within the deep tanks, subjecting them “to a measure of heat,” was a concurrent cause of the loss. 415 F. Supp. at 887. Defendant I.T.O. was also found to be at fault for its harsh handling of the cargo *It is not necessary for us to reconsider the question whether, under COGSA and circumstances such as those presented by this case, the carrier has the burden of proving inherent vice under 46 U.S.C. § 1304(2)(m) or the shipper has the burden of disproving that exception as a part of the requirement that it must establish the good condition of the goods upon delivery of the carrier. See, e.g., Hecht, a Ca v. The 8.8. President Buchanan, 236 F.2d 627, 691 (2d Cir. 1956). As was discussed in the text above, we read the trial court’s opinion as holding that it was es- tablished that the yams suffered from no inherent vice. improper to Flota, is not a type of negligence by the carrier which > Guinntel eunne under COGSA. See, ¢.g., 28 U.S.C. § 1304(a) (2). —— — | 2la Appendiz C, Opinion. and for subjecting the yams to unventilated storage fol- lowing discharge. Id. The negligence of I.T.O. is im- puted to Flota but is recoverabe by Flota in indemnity. All the previous burdens being satisfied, the final burden rested with Flota to show what ascertainable amount of the damage was attributable to the packaging, from which it was excepted, and what was due to the improper stowage and negligent stevedoring, which were not excepted and for which Flota was chargeable. Failing this burden, Flota was chargeable with the entire loss Schnell v. The Valles- cura, supra, 293 U.S. at 306; J. Gerber & Co. v. S.S. Sabine Howaldt, supra, 437 F.2d at 588. Rather than determining ultimate liability according to Flota’s success in satisfying this burden of separating the damage, however, the trial court stated: “The rule is clear that when two or more#farties have contributed by their fault to cause property damage in a maritime cargo situation, liability for such dam- age is to be allocated among the parties proportion- ately to the comparative degree of their fault and that liability for such damage is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of fault.” 415 F. Supp. at 888, citing United States v. Reliable Transfer Co., supra, 421 U.S. at 411. Except for the substitution of the words “cargo situation” for the words “collision or stranding” this is virtually the precise language of Reliable Transfer Co. In that case, the Court overruled the ancient and harsh maritime colli- sion and stranding rule of equal apportionment regardless of actual degree of fault, a rule which did not apply in cargo cases such as that currently on appeal. Indeed, this area of maritime law has been governed for some forty years by a rule which does allow for apportionment ac- 22a Appendix C, Opinion. cording to relative degree of fault, although an occasional harsh result may arise, as when the carrier is unable to sustain its final burden of proving the relative degree of fault. In such a case the cagrier must bear all the damages even though it has been established that those damages were in part caused by occurrences for which it is excepted from liability. Nevertheless, the rule of Schnell v. The Vallescura, clearly stated and frequently applied, must govern in this case. The trial court was unable to make a finding as to the allocable percentages of the degree of fault, nor is there any support for such a finding in the record. Cf. Tri- Valley Packing Ass’n v. States Marine Corp., 310 F.2d 891, 894 (9th Cir. 1962). The parties agreed as between themselves, and the trial court concurred, that an exact apportionment could not be made and that, in accordance with the Reliable Transfer Co. rule quoted above, Vana and Flota would divide the damages equally, with Flota entitled to indemnification in the amount of $1,000 from L.T.0O. 415 F. Supp. at 888. The parties having reserved their right to appeal such allocation, we hold that, ac- cording to the rule of Schnell v. The Vallescura, Flota must bear the full amount of damages of $78,358.50, an amount for which we find adequate support in the record. We do not disturb the $1,000 indemnification award since it is unrelated to the trial court’s application of a rule which we find to be in error in a maritime, noncollision cargo damage case. Accordingly, the judgments against Flota and Vana must be reversed, and the causes are remanded to the district court with directions to enter judgment for plaintiff Vana against defendant Flota for the full amount of its damages, with costs to Vana and Skou against Flota both below and on this appeal. oe TS 23a Appendix D, Order of Reversal of Court of Appeals. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Court- house in the City of New York, on the twentieth day of May one thousand nine hundred and seventy-seven. Present: Hon. J. Josepn Smiru Hon. Witrrep FEINBERG, Cireuit Judges Hon. Cuares H. Tenney, District Judge 76-7386 Vana Trapine Co., Inc., Plaintiff-Appellee-Cross-Appellant V. S.S. ‘‘Merre Sxov’’, her engines, boilers, etc., and Fioata MercanTte GRaNCOLOMBIANA, §.A., Defendant-Third-Party Plaintiff-Appellant-Appellee, V. Ove Sxovu and InTERNATIONAL TERMINAL Operatine Co., Inc., Third-Party Defendants-Appellees- Cross-Appelants. , —_ 24a Appendix D, Order of Reversal. Appeal from the United States District Court for the Southern District of New York. This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel. On ConsmeRATION WHEREOF, it is now hereby ordered, adjudged and decreed that the judgment of said District Court be and it hereby is reversed and the action be and it hereby is remanded to said District Court for further proceedings with costs to be taxed against defendant-third- party-plaintiff-appellee-appellee Floata Mercante in ac- cordance with the opinion of this court. A. Dante, Fvusaro Clerk By: Arrour HELLER Deputy Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2400%3A1. Public record. Not legal advice.