# Appendix — Horn v. Cia de Navegacion Fruco, S. A. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0527%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1969 - **Citation:** 394 U.S. 943 ## Text tues $Se6,% t a + RAY ¥ aD nas oe ; og ; ‘3 | : | : : « on £5 ‘ | - ‘ a“ | : i oa Fe . . » : ~~ . ‘ . - LS ) ° « : \ : ; ” | ‘ i . K : * 2 . . . | ae 8 . 3 Sia ‘ | | . , ; ¢ 4 : : . — 4 . ; ° ; s : : , ; : to ® Z . ‘ ‘ exe : ie . | : , : . £ * le ‘ : p | . | ; _ a hae aie : : . | : ¥ : ’ 3 ‘ ra ; 7 j : eh : : j ; | \ bd . . 2 . : A ‘ +. é | | : A . ‘ : : iS j : oe 3 | | | ; . 4 Pg : + . 7 a a : j y r 4 : r 5. - ie - . > > . : ° ‘ > : f | : | t ~ he * > En : : | ° x a ‘ a A -e . s is . xf y Ss ‘ o7\e | ~ : 33% Fig: : : Speen : Qo -g, a 2 ’ a APPENDIX A. In the Unived States Court of Appeais for the Fifth Circuit. October Term, 1966. No. 22167. D. C. Docket Nos. Adm. 2958, 2976, 2984 and 2988. Heinrich C. Horn, Claimant of the M/S HEINZ HORN, Appellant-Appellee, versus Cia de Navegacion Fruco, 8. A. and J. R. Atkins, d/b/a Alabama Fruit and Produce Company, Appellees-Appellants. (And Reverse Title.) Appeals From the United States District Court for the Southern District of Alabama. Before Rives, Gewin and Godbold, Circuit Judges. Judgment on Rehearing. It Is Ordered that the original opinion and judgment of this Court are withdrawn, and in other respects, the Peti- tions for Rehearing are Denied; =, Upon further consideration, it is now here ordered and adjudged by this Court that the judgment of the District Court as to the charter hire awarded Horn for the two periods of inactivity prior to voyage No. 2 is reversed; and that in all other respects, the judgment is affirmed; It is further ordered and adjudged that the appellant- appellee, Heinrich C. Horn, Claimant of the M/S Heinz Horn, be condemned to pay the costs of this cause in this Court for which execution may be issued out of the said District Court. November 5, 1968. Court Costs: Docketing cause, ete. .... $25.00 Issued as Mandate: Nov. 13, 1968. A true copy Test: Edward W. Wadsworth, Clerk, U. S. Court of Appeals, Fifth Circuit, By Jackie Esposito, Deputy, Nov. 13, 1968. New Orleans, Louisiana. RAT la re Ae, Be Le OS — —s = In the United States Court of Appeals For the Fifth Circuit. No, 22167, Heinrich C, Horn, Claimant of the M/S HEINZ HORN, Appellant-Appellee, versus Cia de Navegacion Fruco, S. A., and J. R. Atkins, d/b/a Alabama Fruit and Produce Company, Appellees-Appellants, (And Reverse Title.) Appeais From the United States District Court For tie Southern District of Alabama. (November 5, 1968.) Before Rives, Gewin and Godbold, Circuit Judges. Rives, Circuit Judge: Upon petitions for rehearing filed by the respective parties, the original opinion and decision of this Court are withdrawn and changed so as to read as hereinafter set furth. In other respects the petitions for rehearing are denied. =— © oo Substitute Opinion and Decision. All parties have appealed from the decree rendered in four consolidated admiralty cases.!. These disputes arose from the time charters of two sister ships for the trans- port of bananas, and the subsequent delivery of some parts of the banana shipments in excessively ripened condition. Cia de Navegacion Fruco, S. A. (Fruco) chartered from Heinrich C, Horn (Horn) two refrigerated vessels for the carriage of bananas between Ecuador and the Gulf Coast of the United States. The M/S HEINZ HORN was char- tered April 30, 1962, under a time charter patterned after the New York Produce Exchange Charter Party.? A simi- lar time charter was executed by the same parties, on May 15, 1962, affecting the M/S MARIE HORN, J. R. Atkins, president of Fruco, and its principal shareholder is guarantor for Fraco on both charters. Two libels for cargo damage arose from two of the voyages under the HEINZ HORN charter, voyage No. 1 and voyage No. 4. That vessel was delivered under char- ter to Fruco on June 3, 1962, at Mayaguez, Puerto Rico. She proceeded to Puerto Bolivar, Ecuador, to commence her initial voyage under the charter. En route to Puerto Bolivar, pursuant to Fruco’s request, the vessel took on Daniel Christian, Fruco’s representative, who was inex- perienced in the banana trade and who was placed on board the HEINZ HORN to observe and to learn. The vessel arrived in Puerto Bolivar June 10, 1962. Loading of bananas commenced June 11 and was com- pleted early on June 13, under the supervision of Chief Mate Schultz. Apparently no cargo other than bananas 1 Cia de Navegacion Fruco S. A. v. M/S HEINZ WORN, et al, S. D. Ala, 1964, 233 F. Supp. 637. 2 See Gilmore & Black, Admiralty, Appendix C, 802 (1957), (hereinafter cited as Gilmore & Black). a. oe was loaded. The master of the vessel, Captain Rudolph Horn, signed two clean bills of lading for the cargo on June 12, 1962. Atkins, doing business as Alabama Fruit and Produce Company (Alabama Fruit), had previously furnished ietters of credit covering this cargo and the sale was completed, f.0. b. Ecuador, on June 12, 1962. The HEINZ HORN sailed from Puerto Bolivar early on the morning of June 13, directed toward Mobile, Ala- bama, with its cargo consigned to Alabama Fruit. Cap- tain Horn left the ship at the Panama Canal due to illness; Chief Mate Schultz became acting master. He and the second mate were thereafter the only officers aboard; a normal complenient of officers was a captain and three mates. The vessel docked in Mobile on the night of June 21. When unloading commenced the next morning, many of the bananas were found to be ripe or ripening to such an extent that they were of no use to the importer. The greater damage was in the number two hold where the bananas had been packed in boxes. Damage was less severe in the number one hold. where the bananas had been stowed by the stem, as well as in boxes. Under the terms of the charter party, the HEINZ HORN was to sail on the orders of Fruco, the charterer. Fruco did not issue a sail order to depart from Mobile until June 29. During the period between unloading of the cargo from voyage No, 1 and that re-sail date, the vessel went on dry dock for inspection for slightly more than one day; the dry-dock time admittedly was at the expense of Horn, as owner. Upen arrival in Puerto Bolivar for the second voyage, the HEINZ HORN stood by for two days awaiting bananas fer loading. The vessel’s delay in leav- ing Mobile occasioned the absence of any bananas ‘ready for loading in Ecuador. Fruco has treated those two days, as well as the period after arrival in Mobile, as ar? aoe being a period of off-charter, and it has declined to pay the charter hire for those times, amounting to a total of $5,594.39. Additionally, Fruco and Atkins, its guarantor, have withheld payment of charter hire in the amount of 25,946.76, as a result of Atkins’ claim for bad cargo. The events surrounding the second, third and fifth voyages of the HEINZ HORN under Fruco’s charter pro- duced no issue for this litigation.® Voyage No. 4 produced another delivery of excessively ripened bananas to Atkins, d/b/a Alabama Fruit. The HEINZ HORN was loaded with bananas at Guayaquil, Ecuador, on September 2 and 3, 1962. This shipment of bananas was loaded by the stem; none were in boxes. Both hoids were utilized. The master of the vessel at that time, Captain Heinz Freytag, rejected a large number of bananas brought to the ship, on the ground that they were too far along in the ripen- ing process to be shipped. Captain Freytag signed a clean bill of lading for 8,170 stems, consigned to Alabama Fruit, and the ship sailed the morning of September 3. En route to Mobile, some two days out from Guayaquil, the master jettisoned 335 stems of bananas, after inspect- ing the holds and finding these stems to be so far along in the ripening process as to ‘‘infect’? the remainder of the cargo. The HEINZ HORN docked in Mobile on September 11. Unloading commenced the following morning. Many stems of bananas were found to be too ripe to sell. The remaining bananas were sold at a reduced rate due to their ripened condition. The HEINZ HORN made one further voyage under the charter with Fruco. On September 21, 1962, Alabama Fruit, through Atkins, notified Horn’s agent that it felt & However, sce n. 11, infra, for the high percentage of ripe and turning bananas on those voyages. a a ‘‘it best for you to take the ships back and cancel the charter at the end of the present voyage.’’ In that letter, Atkins referred to a telephone conversation to that effect between himself and Horn’s agent, purportedly held that same day. Subsequently, Fruco sent a confirmation tele- gram to the Horn agents.* The MARIE HORN was redelivered to the owner on September 27; she had been chartered for a minimum period of four months, or until November 12, 1962. Thus her redelivery was some 46 days prior to the expiration of the minimum time. The HEINZ HORN charter was for a minimum three-month period, which expired Sep- tember 3. Redelivery of that vessel to the owner was effected October 3. HEINZ HORN went on hire for an- other charter October 4. MARIE HORN had been booked September 3 for delivery to another charter October 1. Libel was filed by Fruco, as charterer, against HEINZ HORN and Horn with regard to the first voyage. Atkins, d/b/a Alabama Fruit, subsequently joined in that libel. Atkins filed a similar libel against the same respondents with regard to voyage No. 4, to which Fruco was added by amendment as a party libelant. Horn filed two sepa- rate libels as owner of the HEINZ HORN and of the MARIE HORN, respectively, seeking charter hire alleg- * The telegram, charged to “Ala. Fruit & Produce Co.,” reads as follows: “IN ACCORDANCE WITH OUR PHONE CONVERS.\- TION SEPTEMBER 21ST AND LETTER SAME DATE HAVE DEFINITELY DECIDED VESSELS MARIE- HORN) AND HEINZHORN NOT SUITABLE FOR TRADE INTENDED AS PER CHARTER PARTIES DATED MAY 15TH AND APRIL 30, 1962 RESPEC- TIVELY STOP MARIEHORN UNLOADED YESTER- DAY EXCESSIVE RIPES WHICH SAME UNSATIS- FACTORY EXPERIENCE PREVIOUS CARGOES BOTII VESSELS THEREFORE ACCEPT THIS OUR INTEN- TION NOT TO USE THESE VESSELS FURTHER.” CIA DE NAVEGACION FRUCO Ss.” ; ~* edly due on each vessel. In connection with the first libel, filed as a result of voyage No. 1, the HEINZ HORN, after being put under seizure, was released under bond of $40,000. The district court, after consolidation, awarded At- kins $31,261.64 for cargo damage resulting from voyage No. 1, and $18,495.73 for cargo damage with regard to voyage No. 4, or a total of $49,757.37. Horn was awarded a total amount of $30,864.71. This included $25,946.76 for charter hire withheld as sccurity for cargo damage on voyage No. 1, $3,651.29 for charter hire for time HEINZ HORN was tied up in Mobile after voyage No. 1, and $1,266.66 for charter time due for the two days HEINZ HORN lay awaiting cargo in Puerto Bolivar prior to voy- age No. 2. Interest of 6% per annum was granted on each award, to date from relevant dates. All parties have appealed. We affirm in part and reverse in part. I, The delicate nature of bananas necessitates special care in transportation. Bananas customarily are cut in a hard green state and are shipped under such refrigeration as will delay the ripening process. The ripening tempera- ture for bananas is generally a pulp temperature of 60 to 62 degrees Fahrenheit. Banana shippers regard a trans- port temperature of 53 to 55 degrees Fahrenheit as ap- propriate. Temperatures below 52 degrees Fahrenheit have a deleterious chilling effect on the fruit. The gen- eral effort is to transport the bananas at a low tempera- ture retarding the ripening process, but safely above the level at which the fruit is chilled. The ripening process of the banana produces several effects on the fruit, including a color change from grass green to yellow and, ultimately, to brown. Ripening bananas exude, inter alia, ethylene gas and heat, both —: of which tend to accelerate the ripening of other bananas in proximity, See Lucayan Transports v. McCormick Shipping Corp., 5th Cir. 1951, 188 F, 2d 202, 204. For all of these reasons, a ship properly equipped to transport: bananas will provide stowage holds cooled by a refrigeration system which maintains a properly low temperature and which exhausts the heat and gases that encourage ripening, Usually, prior to taking on a load of bananas, the car- rier ship will cool its holds to an appropriate tempera- ture. The cooling system may sometimes be operated during loading, even with the hatches open. Once load- ing is completed and the hatches are closed, the ship is expected to ‘pull down” the hold temperature and that of the bananas to the necessary level within approxi- mately eight hours, The maintenance of the proper tem- perature thereafter depends on a close control of the temperature of air delivered into the hold, and of that exhausted. Delivery air normally should be at a level of 52 to 53 degrees. The temperature of the exhaust air apparently is controlled, in part, by the frequency with which the air in the hold is changed. A de-gassing proc- ess is used to ensure exhaust of the ripening gasses, Maritime law infers a general warranty of. seaworthi- ness from a charter-party agreement even where such warranty is not expressly made. The Caledonia, 1895, 157 U.S. 124; Work v. Leathers, 1878, 97 U. S. 379; Jordan, Inc. v. Mayronne Drilling Mud Chemical € Engineering Service, Sth Cir, 1954, 214 F. 2d 410. The term ‘‘seaworthi- ness’? is read to mean, inter alia, fitness for the use antici- pated, See The Southwark, 1903, 191 U. S. 1. A similar warranty of seaworthiness at One time was read into contracts of carriage or bills of lading. The Carriage of Goods by Sea Act of 1936 (COGSA), 46 — A-10 — U.S. C., § 1800, et seq. abolished that general warranty with regard to the carrier-shipper relationship governed by bills of lading. Instead, the carrier is statutorily ob- ligated to use due diligence to make the vessel seaworthy. 46 U. S. C.,, § 1303 (1). Such obligation is either met or not met when the vessel ‘‘breaks ground’’ on the voyage. The Steel Navigator, 2nd Cir. 1928, 23 F. 2d 590; Erie & St. Lawrence Corp. v. Barnes-Ames Co., W. D. N. Y. 1931, 52 F. 2d 217.5 No such statute regulates the terms of pri- vate charter parties, and risks of damage may be adjusted in any manner specified by the charter. See The Monarch of Nassau, 5th Cir, 1946, 155 F. 2d 48; Gilmore & Black, at 181. As was the situation here, the owner and the charterer sometimes choose to incorporate COGSA into the charter party.® Such a practice serves to cut the general sea- worthiness warranty ‘‘down to COGSA dimensions,’’ that is, to the level of due diligence. Gilmore & Plack, 182 n. 41, 183. See Cooper v. Pinedo, 5th Cir. 1954, 212 F. 2d 137; Ore S. S. Corp. v. D/SA/S Hassel, 2nd Cir, 19438, 137 F. 2d 326. 5 In part, at least COGSA is closely similar to the Harter Act of 1893, 46 U. S. C., §§ 190-196, so that cases interpreting the lat- ter often have applicability to COGSA, Gilmore & Black, at 127. See, e.g. The Bill, D. C. Md. 1942, 47 F. Supp. 969, aff'd 145 F. 2d 470. But see text following text at n. 12, infra. 6 “44. New Jason Clause, New Both-to-Blame Collision Clause, Chamber of Shipping War Risk Clause 1 & 2, U. S, A. Clause Paramount, as attached, to be fully incorporated in this Charter Party. “U.S. Clause Paramount “This Bill of Lading shall have effect, subject to the provisions of the Carriage of Goods by Sea Act of United States approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under the said Act. Tf any term of this Bill of Lading be repugnant to said Act to any extent, such terms shall be void to that extent, but no further.” — A-11 — The charter party in each case made specific reference to certain characteristics, specifications and capacities of the ships. The statements may reasonably be treated as warranties, the breach of which would entitle Fruco, as charterer, to avoid the agreement entirely or to sue for damages arising from the breach. Davison v. Von Lingen, 1885, 113 U. S. 40; Romano v, West India Fruit & S. S. Co., Sth Cir. 1945, 151 F. 2d 727, 731; Simonetti v. Foster, D. Mass. 1880, 2 Fed. 415. We have found no au- thority which would indicate any limitation on obligations under such express representation through the advent of COGSA by incorporation. Cf. Luckenbach v. McCahan Sugar Co., 1918, 248 U. §. 139, 149, 150. That question need not be decided here because, as presently developed, in this case the charterer stood in the same position as the cargo owner. COGSA, in effect, limits the potential liability of the ship or its owner in the instant case. The recovery of Fruco, the charterer, from Horn or his ship is limited to the level of recovery which Fruco is found to owe the owner of the cargo, in this case Atkins, consignee and successor to the shipper. See The Toledo, 2nd Cir. 1941, 122 F. 2d 255, aff’g, The Toledo. FE. D. N. Y. 1939, 30 F. Supp. 93, 98. Certainly Fruco should be allowed no recovery for loss it has not suffered, and its own poten- tial loss is measured by that recovery which it may owe to Atkins.* Fruco’s responsibility to Atkins is, in turn, * We thus avoid the broad question whether bills of lading gen- erally are to be considered as contracts between shipper and time charterer, Benner Line v. Pendleton, 2nd Cir. 1914, 217 Fed. 497, 499; Burn Line v. United States & A. S. S. Co., 2nd Cir. 1908, 162 Fed. 298, 300; Jebsen v. A Cargo of Hemp, D. Mass. 1915. 228 Fed. 143, 148; British & Foreign Marine Ins. Co. v. Kilgour S. S. Co, S. D. N. Y. 1910, 184 Fed. 174, 178; or between shipper and owner, Field Line (Cardiff), Lrd. v. South Atlantic S. S. Line, 5th Cir, 1912, 201 Fed. 301, 304. citing Schooner Free- man v. Buckingham, 1855, 59 U, S. (18 How.) 182, 189. See Poor, Charter Parties, §10 (4th ed.). The cases cited were not Poe ee Rectan ee Aero hada eo — A-12— established by the terms of the bills of lading. COGSA governs the relationship here created by that document, 46 U. S. C. A., § 1300, and the terms of COGSA may not be modified by agreement of the parties. 46 U.S. C. A,, § 1305. ik. VOYAGE NO. 1. With regard to the first voyage of the HEINZ HORN the district court found: ‘‘The ripened state of the bananas was due to the high pulp temperatures at which they had been trans- ported. The primary cause of the high pulp tempera- tures was the improper stowage of the boxes of bananas. ‘‘In the No. 2 hold the cartons of bananas were tightly stowed. No slots, bin boards or dunnage had been used to facilitate the flow of air between the cartons. The cartons were stowed an average of eight tiers high in both compartments of the No. 2 hold. No space was left between the cartons. ‘*A factor which contributed to the ripening of the bananas was the excessive length of time taken in pulling down the temperature of the delivery and return air, and the failure of the vessel to maintain the proper hold temperature. ‘‘The bananas were packed in hoxes or card- board cartons designed for and used in the trans- porting of bananas. These cartons were well venti- dependent on a matter of statutory liability, and its effect on the relationships of the parties. Since Horn has repeatedly asserted an absence of privity with Atkins, we are unable here to use the rationale of Cooper v. Pinedo, 5th Cir. 1954, 212 F. 2d 143, where we noted that counsel for both parties had understood that the issue of liability was to be determined from the original charter agreement. — A-13 —- lated and their construction in no way caused or contributed to the damage done to the bananas.’’ 233 F. Supp. 637, 640 (emphasis supplied). We agree with these determinations of the district court and find they are not clearly erronecus. See Fed. R. Civ. 52 (a).8 Indeed, in the findings quoted above, the only matter over which there could be disagreement is with regard to the time taken to lower the hold tem- peratures, and the maintenance thereafter of the proper temperatures. Since a higher percentage of the bananas in hold No. 1 survived under the same refrigeration sys- tem, the method of stowage may have affected the ship’s capacity to care for its cargo. We note, however, that Arthur Grant, a naval architect and marine surveyer, called by libelants® as an expert witness, testified at length as to his readings of the ship’s temperature logs. He concluded that, with regard to hold No. 2, the delivery air temperature steadied down to 53 degrees Fahrenheit in approximately 36 hours, whereas an 8-hour period was the proper time. He stated further that the return air never steadied at or below 55 degrees Fahrenheit, while the appropriate level would have been between 53 and 54 degrees. Whether these effects resulted from the capacity of the system itself, or from the manner in which it was operated, he did not say. The district court con- cluded that the latter element, method of operation, was at fault. 233 F. Supp. at 642. Our disagreement with the result reached in the dis- trict court as to voyage No. 1 stems from the path fol- lowed to its conclusion that liability for the ‘‘primary 8 See also McAllister v. United States, 1954, 348 U. S. 19; C. J. Dick Towing Co. v. The Leo, 5th Cir. 1953, 202 F. 2d 850, 854; River Terminals Corp. v. Southwestern Sugar & Molasses Co., Sth Cir. 1960, 274 F. 2d 36, 37. ® For convenience, we refer to Fruco and Atkins as libelants and to Horn as respondent. Si eine ten what tI 6A wi a Yer ornate me 66 nel ent + — A-14— cause’’ and contributing ‘‘factor’’ rests with Horn, as the ‘‘carrier.’’ From Atkins’ view, the charterer and the owner are indistinguishable. It is not for Atkins to separate their responsibilities under the charter party, a document iz which he did not participate except as a guarantor. However, Fruco may have recovery over against the vessel or its owner es a result of the charter-party terms. Thus we actually are concerned with Atkins’ recovery through Fruco but ultimately against Horn.’® The district court concluded that the HEINZ HORN was seaworthy. We do not agree. While we would sus- tain its conclusion to the extent of the mechanical fit- ness of the vessel,’ based on the testimony of the expert 10 This court has observed that, “regardless of whether libelants, as subcharterers, may claim privity of contract with the owners sufficient to maintain an action fn personam, they are still en- titled to maintain the present in ren’ suit against the vessel for damages to the cargo.” Cocper v. Pinedo, 5th Cir. 1954, 212 F. 2d 137, 142; Perez v. Cia Tropical Exportadora, 5 Cir. 1950, 182 F. 2d 874, 875. The procedure we follow does no iniustice to the shipowner. “The general owner must be taken to know that the purpose for which the vessel is hived, when not employed to car.y cargo belonging to the hirer, is to carry cargo of third per- sons; and that bills of lading, or charter parties, must, in the invariable regular course of that business, be made, for the performance of which the law confers a lien on the vessel.” The Schooner Freeman, i850, 59 U. S. (18 How.) 182, 190; Perez v. Cia Tropical Exportadora, 5th Cir. 1950, 182 F. 2d 874, 875. 22 The testimony indicated that subsequent voyages of the HEINZ HORN under this charter party produce! the following percentages of ripe and turning bananas: No.2 17.51% No.3 26.99% No. 4 56.00% No. 5 28.79% The normal and expected percentage is from 3% to 5%. The testimony was that 10% is regarded as cxcessive. While the ac- —-———— Aa thnk dada Pn helt Bs Oe The. — A-15 — witnesses summoned by all parties, we conclude that the ship was unseaworthy with respect to its crew. ‘‘Seaworthiness is a relative term depending for its application upon the type of vessel and the char- acter of the voyage. The generai rule is that the ship must be staunch and strong and well equipped for the intended voyage. And she must also be pro- vided with a crew, adequate in number and compe- tent for the voyage with reference to its length and other particulars, and have a competent and skilled master of sound judgment and discretion.”’ The Framlington Court, 5th Cir. 1934, 69 F. 2d 300, 304. From the record, the following is more than apparent: (1) The Captain, Rudolph Horne was ill, did not supervise loading, and left the vessel before the end of the voyage. (2) At no time during the voyage did the vessel have the normal complement of officers. (3) The officers had no experience with boxed ba- nanas. (4) For officers, once the Captain left the ship at the Canal Zone, the vessel had only two mates, one of whom had limited sea experience. tual results could be regarded as indicative cither of a condition of unseaworthiness or of failure to use due diligence to make the vessel seaworthy, as well as of failure properly to operate the refrigeration mechanism. the district court inferred the last ex- planation as the source of trouble, rather than the csndition of the equipment. The fact that Fruco’s witness Grant testified that the HEINZ HORN’S refrigeration plant was overhauled after the fourth voy- age, and that on the ffth voyage the delivery air stayed at 52 degrees “almost perfectly,” does aot necessarily lead to the con- clusion that prior to that overhaul the owners had failed to use due diligence in providing a properly-equipped vessel. In fact, that overhaul apparently did not have a great effect on the compara- tively high perceniage of damaged bananas, — A-16 — (5) The Acting Master had had prior experience as the Captain of a refrigerated vessel. Faced with such evidence, we conclude that the HEINZ HORN was not seaworthy with regard to its personnel. The owner bore the burden of proving the exercise of due diligence to make the vessel seaworthy. J.C. Penney Co. v. American Express Co., S. D. N. Y. 1952, 102 F. Supp. 742, aff'd, 2nd Cir, 1953, 201 F. 2d 846. Such proof dves not appear in the record. We conclude, Continental In- surance Co, v. United States, 2nd Cir, 1952, 195 F. 2d 527, 528 that the owner failed to exercise due diligence to make the vessel seaworthy at the start of the voyage by not in- suring that adequate and competent personnel would re- main on board through the voyage. Interaational Nav, Co. v. Farvy & Bailey Mfg. Co., 1901, 181 U. S. 218; The Framlington Court, supra. Under the Harter Act, supra, n. 5, the owner whose diligence in providing a seaworthy vessel is found de- ficient is liable for damage to cargo without causal re- lation between the defect and the disaster. The Fram- lington Court, supra, 69 F, 2d at 307. COGSA, however, calls for such causal relation as a prerequisite to a find- ing of liability. Although § 1303 (1) (a), supra, n. 12, makes the exercise of due diligence obligatory, § 1304 (1) n. 21, twfra, has been construed as requiring that the loss be causally related to the want of due diligence before liability can be imposed on the carrier. See The Vale Royal, D. C. Md. 1943, 51 F. Supp. 412, 424; Gilmore & Black, at 130. This view is reinforced by reference to a comparison of COGSA with its predecessor: 12 § 1303: “(1) The cacrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to— “(a) Make the ship seaworthy ; “(b) Properly man, equip, and supply the ship... . — A-17 — *‘The principal difference between the Harter Act and the Hague Rules or Carriage of Goods by Sea Act is that the negligence or exception clause of the Harter Act—Section 3—is conditional; it never op- erates to exonerate the carrier unless due diligence has been used te make the ship seaworthy tn all re- spects, regardless of causal connection; whereas the exception clause of the Act of 1936—Article 4 [§ 1304]—is positive; it always operates to exonerate the carrier unless due diligence has not been used in some respect proximately causing or contributing to the loss.’’ 1 Benedict, Admiralty, § 96, at pp. 291-92 (Knauth ed.) The manner in which the cooling system was operated stemmed from the unseaworthy character of the vessel. Whether the link of the causal chain is manifested by the numerical inadequacy of the crew, or in the want of proper training and instruction is not material, since the owner has failed to carry its burden of proving an ab- sence of causation between the unseaworthiness and loss. See Cooper v. Pinedo, 5th Cir. 1954, 212 F. 2d 137, 143; Eppens, Smith Co, v. Silver Line, 5th Cir. 1942, 128 F. 2d 882, 883. We need not consider at this point any po- tential exculpation offered by the Refrigeration Clause quoted n, 15, infra, since that clause by its own terms is not operative where, as on this voyage, there was a want of due diligence to make the vessel seaworthy. : The other and primary cause of damage on the first voyage, as found by the district court, was the improper stowage of the bananas. 46 U. S. C., § 1303 provides in part: **(2) The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.”’ ITE PI TE REARS SD Fe — A-18 — Neither the carrier nor the ship is responsible for loss resulting from a ‘‘cause «rising without the actual fault or privity of the carrier and without the fault or neglect of the agents or servants of the carrier.”’ § 1304 (2) (q)." Horn, the owner, rather than denying the causal effect of the improper stowage of the bananas, has argued that Fruco, the charterer, was responsible for the stowage. We note that COGSA places stowage responsibility on the ‘‘earrier.’”?> We do not decide that, when COGSA is in- corporated into a charter party, the term ‘‘carrier’’ in $1303 (2) refers to the owner and not to the charterer, although such a use of the Act may well be proper. In- stead, we regard COGSA, through its statutory control over the bills of lading herein, as momentarily placing stowage responsibility on Fruco, the ‘“‘carrier’’ from the standpoint of the cargo, its shipper and its consignee. We then turn to the charter party to ascertain the party responsible for towage of the cargo under that document, as between the owner and the charterer. The charter party placed all loading spaces and loading equipment at the disposal of the charterer. That person in turn was obligated to furnish the Captain with ‘all requisite instructions and sailing directions.’’ Horn, the owner, accepted responsibility for ‘‘the navigation of the vessel, insurance, crew and all other matters, same as when trading for their own account.’? Clause 8 of the charter party places the Captain under the orders and directions 18 1304 (2) (q): “Neither the carrier nor the ship shall be re- sponsible for loss or damage arising or resulting from— “(q) Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the car- rier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.” — A-19 — of the charterer ‘‘as regards employment and agency,’’ but states that the charterer was to ‘‘load, stow, and trim the cargo at their expense, under the supervision of the Captain.’ We concluded that final decisions as to stow- age were made subject to the discretion of the Captain, and were his responsibility. The Captain occupies a dual role with regard to such decisions, He acts for the shipowner where his stowage decisions are made with regard to the seaworthiness and safety of the vessel; he acts for the cargo owner where his decisions do not affect the seaworthiness or safety of the vessel, but affect the safety of the cargo only. Oxford Paper Co. v. The Nidarholm, 1931, 282 U. S. 681; Mobile, Miami & Gulf S. S. Co. v. Lake Giltedge S. S. Co., 5th Cir. 1934, 68 F. 2d 370; The Thomas P. Beale, 3rd Cir. 1926, 11 F, 2d 49, 53; The Santona, S. D. N. Y. 1907, 152 Fed. 516, 518,14 While the arrangement of the banana cartons affected the safety of their contents, it more pertinently affected the capacity of the ship to transport the delicate cargo 14 In The Nidarholm, the Supreme Court declined to adopt or reject an asserted distinction which would bar the shipowner's liability where cargo alone was imperiled, 282 U. S. at 684-85. See n. 1, infra. In Canadian Transport Co., Ltd. v. Count Line, Ltd., House of Lords 1940, A. C. 934 at 944, Lord Wright re- garded the phrase “under the supervision of the Master” as an un- necessary expression of the pre-existing right of a vessel's master to limit the charterer’s control of the stowage. “The master is re- sponsible for the seaworthiness of the ship and also for insuring that the cargo will not be so loaded as to be subject to damage, by absence of dunnage and separation, by being placed near to other goods or to parts of the ship which are liable to cause dam- age, or in other ways. . . . [To] the extent that the master exer- cises supervision and limits the charterer's control of the stowage, the charterer’s liability will be limited in a corresponding degree.” We interpret that latter expression of the limitation on the liability of the charterer and the consequent imposition of liability on the vessel or its owner to be a process effected where there has been a difference of view between the master and the charterer. That situation was not present in the instant case. — | in the manner specified by the charter party.’ The ca- pacity of the ship to perform the role assigned by the charter party is an aspect of the seaworthiness of the vessel, See The Nidarholm, supra, 282 U. S. at 685; The Southwark, supra, 191 U. S. at 8-12. Since the arrange- ment of the cartons in the hold critically affected the ship’s carriage of the cargo in the specified and proper manner, decisions by and for the master with regard to the stowage of these cartons must be said to have been made on behalf of the ship’s owner.'® We conclude that the Captain and his mate, in stowing these bananas too closely together, were acting for and in behalf of the ship’s owner, although not to his best interest. As a result of responsibility for the causes contributing to the loss of bananas on voyage No. 1, Horn is liable for all of the cargo damage arising from that voyage. 15 The Regulus, S. D. N. Y. 1883, 18 Fed. 380. Although the district court herein did not rule explicitly that the faulty stowage resulted in improper ventilation, and thus the capacity of the ship to cool the bananas, we have no doubt that such determina- tion is implicit in, and, indeed, necessary to its findings. 16 Compare Bull v. New York & Porto Rico S. S. Co., 2nd Cir. 1909, 167 Fed. 792; Isbrandtsen Co. v. The George S. Boutwell, S. D. N.Y. 1957, 1958 A. M. C. 351; Canadian Transport Co., Ltd. v. Count Line, Ltd., House of Lords, 1940, A, C. 934; where the master of the vessel was found to have acted solely in behalf of the charterer in stowing the cargo. In those cases the method of stowage had no effect on the ability of the vessel to provide the required mode of transportation; nothing was re- quired but stowage space itself. In American Tobacco Co. vy. The Katingo Hadjipatera, S. D. N. Y. 1948, 81 F. Supp. 438, modified, 2nd Cir. 1951, 194 F. 2d 449, where faulty stowage was found to have hindered ventilation of the cargo, the court held the char- terer liable; the master, however, had no supervisory duties as to stowage, anc, in any event, had protested, for the ship, to the stowage method used. ates In this regard, we believe Bergan v. International Freighting Corp., 2nd Cir, 1958, 254 FL 2d 231, relied on by the district court, to be inapposite. That case considered questions of the employee-employer relationship for Jones Act purposes, i Damages. The district court awarded damages to Atkins in the amount of $31,261.64 as a result of voyage No. 1, It con- sidered conflicting testimony as to the actual quantities of ripened bananas, the extent of ripeness, and the market value of the various categories. We affirm the determina- tion of the amount owed Atkins as a result of voyage No. 1. IIT. VOYAGE NO, 4. On the fourth voyage under the HEINZ HORN’S charter, the bananas were loaded by the stem. The master for that voyage, Captain Heinz Freytag, stated on deposi- tion that vertically-placed bin boards were used to sepa- rate the cargo to prevent it from shifting during the voyage. The district court concluded with respect to both of the voyages under consideration that ‘‘the officers failed to cause the bananas to be stowed properly.’’ 233 F. Supp. at 642. While such apparently was the case on the first Voyage, we find only slight evidence in the record to in- dicate that the manner of stowage employed on voyage No. 4 contributed to the ripening of that cargo of bananas. Most of the testimony adverse to the stowage technique employed referred to voyage No. 1. Captain Freytag remarked in his deposition that the cargo on voyage No. 4 did not fill the holds. He stated that the resultant empty hold areas caused turbulence in the air circulation, making difficult the exhaust of foul air and gases. We pass any question of responsibility for the implied shortage of cargo and for the placement of the stems, for there is no testimony or evidence relating the ‘**turbulence”’’ to the damaged cargo. The district court erred in finding an absence of due diligence in the stowage of the bananas on voyage No. 4 — A-22 — Without that factor at issue, the dispute is as to whether the ripening of the cargo resulted from the operation of the cooling system or from the alleged ripened state of some of the cargo when it was loaded. Without evidence to indicate any decline in the condition of the refrigeration mechanism in the period between voyages No. 1 and No. 4, we again approve the district court’s determination that the HEINZ HORN was mechanically seaworthy for the purpose of transporting bananas. No question of the ade- quacy of ship’s personnel arises from this voyage. Once it has been established that the bananas were loaded in good condition and unloaded in damaged con- dition, the carrier can avoid liability only by proving that the damage resulted from a cause for which it is statu- torily not responsible, or that it exercised due diligence to prevent the harm. Schnell v. The Vallescura, 1934, 293 U. S. 296, 303; Compagnie De Navigation v. Mondial United Corp., 5th Cir, 1963, 316 F. 2d 163, 169; Schroeder Bros. Inc. v. The Saturnia, 2nd Cir. 1955, 226 F. 2d 147, 149. The cargo was delivered to Mobile in part at least in an excessively ripened condition. Captain Freytag signed the bill of lading for this particular cargo, dated Septem- ber 2, 1962. No exceptions were noted on the bill of lading. Thus is raised the rebuttable presumption that the fruit was delivered on board shiv in good condition. Fidelis Fisheries, Ltd. v. Thorden, S. D. N. Y. 1956, 142 F. Supp. 798, COGSA, at 46 U. S. C., § 1804 (2) (m), states: “Neither the carrier nor the ship shall be respon- sible for loss or damage arising or resulting from— . wastage in bulk or weight or any other loss or damage arising from inherent defect, quality, or vice of the goods . . .” The fact that bananas require special care during ship- ment, due to such characteristics of that cargo as en- — A-23 — courage ripening, Lucayan Transports v. McCormick Ship- ping Corp., supra, is not the circumstance envisioned by that exculpatory clause. Certainly all parties to the charter party understood the nature of such cargo in general and the special ship characteristics necessary for its transport. Rather, to gain assistance from that statu- tory exculpation, the carrier must have shown scme de- fect, quality or vice adhering to the particular bananas brought aboard. See Compagnie De Navigation v. Mondial Uniled Corp., supra, 316 F, 2d at 168-69. The district court stated that ‘‘there was no proof of inherent defect, quality or vice of the bananas.’’ 233 F. Supp. at 642. Captain Freytag and First Mate Schultz, in depositions, testified that they rejected as too ripe for shipment large quantities of the bananas brought to be loaded. Schultz stated further that Mr. Juan Rioswas~ present as Atkins’ representative at loading time and that Rios rejected many stems. Captain Freytag indi- cated that much of the rejection was based on color, and that the light available during night loading was not suf- ficient for the color test. Schultz indicated that the banana experts working on the loading operation, presumably including Rios, also had been cutting open selected ba- nanas to examine for ripeness. Captain Freytag took three stems of the rejected bananas and hung them on the deck during the voyage. He stated that a day out of port these stems were “ripe.” He and Schultz inspected the holds and jettisoned bananas that were ripening too fast, 335 stems over a two-day period. Captain Freytag felt that these jettisoned bananas had been brought aboard at night, when they could not be insvected closely and hastened the ripening process of the other bananas.'* 17 The bill of lading was dated September 2. Both Captain Freytag and Schultz testified that some loading was done in the pre-dawn hours of September 3. ak ied Mina aL TSE US COERLE RRE o> UE Cee ee . . . A Se A ee EE iz pry etn Ae po Gt Sites es — A-80 — held to prevent the insertion in a bill of lading of any lawful provision regarding general average. (46 U. S. C. 1305). Special Conditions. Sec. 6. Notwithstanding the provisions of the preced- ing sections, a carrier, master or agent of the carrier and a shipper shall, in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligations as to sea- worthiness (so far as the stipulation regarding seaworthi- ness is not contrary to public policy), or the care or dili- gence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care, and discharge of the goods carried by sea: Provided, That in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a nonnegotiable document and shall be marked as such. Any agreement so entered into shall have full legal ef- fect: Provided, That this section shall not apply to ordi- nary commercial shipments made in the ordinary course of trade but only to other shipments where the character or condition of the property to be carried or the circum- stances, terms, and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement. (46 U. S. C. 1306). Agreement as to Liability Prior to Loading or After Discharge. Sec. 7. Nothing contained in this act shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for —- A-81 — the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea. (46 U. S. C. 1307). Rights and Liabilities Under Other Enactment. Sec. 8. The provisions of this act shall not affect the rights and obligations of the carrier under the provisions of the Shipping Act, 1916, or under the provisions of sec- tions 4281 to 4289, inclusive, of the Revised Statutes of the United States, or of any amendments thereto; or un- der the provisions of any other enactment for the time being in force relating to the limitation of the liability of the owners of seagoing vessels. (46 U. S. C. 1308). Discrimination Between Competing Shippers. as permitting a common carrier by water to discriminate between competing shippers similarly placed in time and circumstances, either (a) with respect to their right to demand and receive bills of lading subject to the pro- visions of this act; or (b) when issuing such bills of lad- ing, either in the surrender of any of the carrier’s rights and immunities or in the increase of any of the carrier’s responsibilities and liabilities pursuant to section 5, title I, of this act; or (c) in any other way prohibited by the Sec. 9. Nothing contained in this act shall be construed Shipping Act, 1916, as amended. (46 U. S. C. 1309). Weight of Bulk Cargo. Sec. 11. Where under the customs of any trade the weight of any bulk cargo inserted in the bill of lading is a weight ascertained or accepted by a third party other than the carrier or the shipper, and the fact that the weight is so ascertained or accepted is stated in the bill of lading, then, notwithstanding anything in this act, the bill of lad- oe Nera cto ert sR woe er OURO SKE Le ea UP AP — A-82 = AO AE! ARLE AAA LBI d h Liy ly aitlo UA aah ss ch eA a otpat at: A bo > A Rim 0 ing shall not be deemed to be prima facie evidence against the carrier of the receipt of goods of the weight so in- serted in the bill of lading, and the accuracy thereof at the time of shipment shall not be deemed to have been guaranteed by the shipper. (46 U. S. C. 1310). Liabilities Before Loading and After Discharge; Effect on Other Laws. Sec. 12. Nothing in this act shall be construed as super- seding any part of the act entitled ‘‘An act relating to navigation of vessels, bills of lading, and to certain obliga- tions, duties, and rights in connection with the carriage of property’’, approved February 13, 1893, or of any other law which would be applicable in the absence of this act, insofar as they relate to the duties, responsibilities, and liabilities of the ship or carrier prior to the time when the goods are loaded on or after the time they are discharged from the ship. (46 U. S. C. 1311). Scope of Act; ‘‘United States’’; ‘‘Foreign Trade.’’ Sec. 13. This Act shall apply to all contracts for car- riage of goods by sea to or from ports of the United States in foreign trade. As used in this act the term ‘‘United States’’ includes its districts, territories, and possessions: Provided, however, That the Philippine Leg- islature may by law exclude its application to transporta- tion to or from ports of the Philippine Islands. The term ‘‘foreign trade’? means the transportation of goods be- tween the ports of the United States and ports of foreign countries. Nothing in this act shall be held to apply to contracts for carriage of goods by sea between any port of the United States or its possessions, and any other port of the United States or its possessions: Provided, how- ever, That any bill of lading or similar document of title which is evidence of a contract for the carriage of goods —" an by sea between such ports, containing an express state- ment that it shall be subject to the provisions of this act, shall be subjected hereto as fully as if subject hereto by the express provisions of this act: Provided further, That every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea from ports of the United States, in foreign trade, shall contain a statement that it shall have effect subject to the provisions of this act. (46 U. S.C 1312). Suspension of Provisions by President. Sec. 14. Upon the certification of the Secretary of Com- merce that the foreign commerce of the United States in its competition with that of foreign nations is prejudiced by the provisions, or any of them, of title I of this act, or by the laws of any foreign country or countries relating to the carriage of goods by sea, the President of the United States may, from time to time, by proclamation suspend any or all provisions of title I* of this act for such periods of time or indefinitely as may be designated in the proc- lamation. The President may at any time rescind such sus- pension of title I hereof, and any provisions thereof which may have been suspended shall thereby be reinstated and again apply to contracts thereafter made for the carriage of goods by sea. Any proclamation of suspension or rescis- sion of any such suspension shall take effect on a date named therein, which date shall be not less than ten days from the issue of the proclamation. Any contract for the carriage of goods by sea, subject to the provisions of this act, effective during any period when title I hereof, or any part thereof, is suspended, shall be subject to all provisions of law now or hereafter ap- plicable to that part of title I which may have thus been suspended. (46 U. S. C. 1313). *® Secs. 1301-1308. — Effective Date; Retroactive Effect. Sec. 15. This act shall take effect ninety days after the date of its approval; but nothing in this act shall apply during a period not to exceed one year following its ap- proval to any contract for the carriage of goods by sea, made before the date on which this act is approved, nor to any bill of lading or similar document of title issued, whether before or after such date of approval in pur- suance of any such contract as aforesaid. (46 U. S. C. 1314). Short Title. Sec. 16. This act may be cited as the ‘‘Carriage of Goods by Sea Act.’’ (46 U. S. C. 1315). — A-85 — APPENDIX E. THE HARTER ACT. (U. 8. Code, Title 46, §§ 190-195.) [Feb. 13, 1893.] Sec. 1. It shall not be lawful for the manager, agent, master or owner of any vessel transporting merchandise or property frum or between ports ot the United States and foreign ports to insert in any bill of lading or ship- ping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper de- livery of any and all lawful merchandise or property com- mitted to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping re- ceipts shall be nuil and void and of no effect. Sec. 2. It shall not be lawful for any vessel transport- ing merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent or manager to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of said vessel to exercise due diligence properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided. Sec. 3. If the owner of any vessel transporting mer- chandise or property to or from any port in the United ER MR ATCT ROY ARR BER IN —— - — A-86 — States of America shal! exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agen!, or charterers shall become or be held re- sponsible for damage or loss resulting from faults or er- rors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent, or master, be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in ren- dering such service. Sec. 4. It shall be the duty ef the owner or owners, mas- ters, or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to issue to shippers of any lawful merchan- dise a bill of lading, or shipping document, stating, among other things, the marks necessary for identification, num- ber of packages, or quantity, stating whether it be car- rier’s or shipper’s weight, and apparent order or condi- tion of such merchandise or property delivered to and received by the owner, master, or agent of the vessel for transportation, and such document shall be prima facie evidence of the receipt of the merchandise therein de- scribed. See. 5. For a violation of any of the provisions of this act the agent, owner, or master of the vessel guilty of such violation, and who refuses to issue on demand the bill of lading herein provided for, shall be liable to a fine not exceeding two thousand dollars. The amount of the fine and costs for such violation shall be a lien upon the ~ ho vessel, whose agent, owner, or master is guilty of such violation, and such vessel may be libeled therefor in any district court of the United States, within whose juris- diction the vessel may be found. One-half of such penalty shall go to the party injured by such violation and the remainder to the Government of the United States. Sec. 6. This act shall not be held to modify or repeal sections forty-two hundred and eighty-one, forty-two hun- dred and eighty-two, and forty-two hundred and eighty- three of the Revised Statutes of the United States, or any other statute defining the liability of vessels, their owners, or representatives. Sec. 7. Sections one and four of this act shall not apply to the transportation of live animals. —s APPENDIX fF. June 1, 1962. Captain M/S ‘‘HEINZ HORN’’ c/o L. K. Cofer P. O. Box 192 Balboa, Canal Zone — Dear Sir: As per advices we have received from New York, we understand that you are scheduled to depart from Maya- guez Monday afternoon, June 4. In accordance with our charter, we are taking delivery of the ship upon dropping pilet at Mayaguez. We wired you today advising that you are to proceed to Puerto Bolivar, Ecuador to load cargo of bananas for Mobile, Alabama U. S. A. Our agent in the Canal Zone who will handle your transit both ways through the Canal is L. K. Cofer. He has a radiotelephone, therefore you can contact him the day before your arrival at Christobal and Balboa giving him your ETA in order that he may arrange for speedy pas- sage through the Canal. Our connection in Puerto Bolivar who will take care of loading the vessel is Jose Turner of Comercial Latino- americana S.A. whose address is P. O. Box 33 Machala, El Oro, Ecuador. For your information, Machala is ap- proximately three to five miles from Puerto Bolivar where you will load. Although these people are experienced in the loading of bananas, we. desire you to see that your ship is loaded properly. We will load both bananas in stems covered with poly- ethylene bags and in 40 pound cardboard cartons (or boxes). Upon loading you will notice that the polyethylene bags have approximately 14” ventilation holes on 3” to 4” eenters. The cardboard cartons, are as you will notice, — A-89 — ventilated both top and bottom. Also has four large ventilation holes on both sides and in addition has hand holes at the end. We have been loading these boxes on our own vessel, MARTHA ANNE, and our experience in carrying the fruit in boxes has been very good, therefore, you should have no difficulties providing you follow our instructions. Be sure and instruct your engineers to see that the vessel “3 precooled before loading. We desire you to maintain a 54-55 degree pulp temperature of the bananas on your trip from Bolivar to Mobile. We fully appreciate that in view of the fact the pulp temperature of the bananas when they are loaded will be considerably higher than this. That it will take you anywhere from 18 to 30 hours to pull down your fruit whereby it will have a temperature of 54 to 55 degrees. We also realize that you have ample refrigeration, in fact enough for deep freeze, therefore, do not be in a hurry to reduce the temperature of your fruit after loading and blow real cold air through your system. Under no circumstances after you finish loading should your delivery air be below 52 degrees at anytime during the trip. It would be better if you would let this delivery air be between 52 and 53 degrees. Please understand this low of 52-53 degrees also applies to the reduction period which we estimate will be anywhere from 18 to 30 hours. Please remember to instruct your engineers to be very careful and not chill this fruit. Tell them that it is possible to sell ripe fruit whereas chilled fruit is worthless. We have scheduled you for loading in Puerto Bolivar either the 12th or 13th ail according to your arrival time there. When you depart from Balboa for Puerto Bolivar, our agent, L. K. Cofer, is suppose to wire Comercial Latino- americana in Machala giving them your departure from SAT OA OTE ETE ORE pADPR WY Dts AQIS Sat gente Rs “Tena PLE LOPLI, BONE Pt OER, Vr Se AO NAO OMe POM LOI oor ? — A-90 — Balboa and your ETA Puerto Bolivar. Normally this trip should take you about 65 to 68 hours. Be sure and remind the agent to send this wire to the people at Machala. On your departure from Puerto Bolivar the Comercial Latinoamericana will wire us giving your sailing time, manifest, ETA at Balboa and ETA Mobile. They will also wire Cofer at Balboa giving him your ETA at Balboa. Please remind Comercia! Latinoamericana to send these wires when you depart. When you depart from Cristobal coming to Mobile, our agent, Cofer, is suppose to wire us in Mobile giving your departure from Christobal and your ETA Mobile. Again remind Cofer to send this cable. Our cable address which he already knows is ALFRUCO. As soon as possible after you depart from Christobal call us on the radiophone. Our phone numbers are as. follows—Mobile, Alabama: Office Hemlock 8-4561 Residence—J. R. Atkins 473-7287 Residence—E. H. Haas 479-5526 Again let me remind you to instruct your engineers that we desire them to maintain a pulp temperature of 54-55 degrees on the bananas on the trip to Mobile. Also under no circumstances, even though his reduction period may take a little longer, blow delivery air lower than 52-53 degrees on the fruit. Yours very truly, CIA De Navegacion Fruco SA. J. R. Atkins JRA/me — A-9i — APPENDIX G. (Letterhead of German Consulate General, New York, N. Y. 10022.) V 2-82/6 July 22, 1968 Lamorte, Burns & Co., Ine. 26 Broadway, New York, N. Y. 10004 Attention: Mr. August C. Burns Re: MV ‘“‘HEINZ HORN”? and MV ‘‘MARIE HORN’”’ Sir: I thank you very much for your letter—ACB/ca—of July 17, 1968. The MV ‘‘HEINZ liORN”’ as weil as the MV ‘‘MARIE HORN”’’ belongs to the category of regular freighters. Both vessels are relatively small, namely 1138 gross tons, 607 net tons or 3223 cubic meters, The respective German Code, the ‘‘Verordnung iiber die Besetzung der Kauffahrteischiffe mit Kapitiinen und Schiffsoffizieren (Schiffsbesetzungsordnung)’’ of June 29, 193i (last version of March 1, 1966) requires a Master and only two Mates fui vessels of that class. A copy of said Code and an official duplicate of this letter are attached for your convenience. Unfortunately there is no English edition available. Paragraph 10, See- tion 2 calls for special attention. Hoping tha. this letter answers your questions, I re- main, very truly yours, (Seal) G. Hauptmann, G. Hauptmann. EIS! RELL, OLE ETI LI SOLE I EL PET SS ETH Ye se § 105 Beseizung der Schiffe in der groben Fahrt. a) Kapitin und Seestcuerleuie: In der groben Fahrt mub der Kapitan ein Befihigungszeugnis A 6 besitzen. Neben dem Kapitan sind Schiffe von nicht mehr als 2000cbm Bruttoraumgchalt mit einem, Schiffe von mehr als 2000 ecbm Bruttoraumgchalt mit zwei und Fahrgast- schiffe jeder Art mit drei Seesieuerleuten zu_besetzen. Unofficial Translation § 10° Manning of ships in all ocean travel (a) Captain and Mates: In the all ocean travel the Captain must possess a qualification ticket A 6, Besides the Captain ships of not more than 2000 cubic- meter gross space contents are to be manned with one, ships of more than 2000 chm gross space contents with two, and passenger ships of every kind with three mates. — A-93 — APPENDIX H. A. EXTRACTS FROM RELEVANT CHARTER PARTY. Clause 8. That the Captain shall prosecute his voyages with the utmost dispatch, and shall render all customary assistance with ship’s crew and boats. The Captain (al- though appointed by owners), shall be under the orders and directions of the charterers as regards employment and agency; and charterers are to load, stow, and trim the cargo at their expense under the supervision of the Captain, who is to sign bill of lading for cargo as pre- sented, in conformity with mate’s or tally clerk’s re- ceipts. b. EXTRACTS TAKEN FROM OPINIONS FROM (Ca- radiar. Transport Co. v. Court Line, Ltd., House of Lords, 1940 A. C. 934, In the House of Lords, Lord Atkin has said: ‘‘By clause 8 of the charter party ‘. . . the charterers are to load, stow and trim the cargo at their expense under the supervision of the captain who is to sign bills of lading for cargo, as presented in conformity with mates’ or tally clerks’ receipts.’ By clause 24 of the charter was expressly made subject to the terms of the Carriage of Goods by Sea Act of the United States, April 1, 1936, and the Canadian Water Carriage of Goods Act, 1936 . . .” ‘“*. . . The supervision of the stowage by the cap- tain is in any case a matter of course; he has in any eveut to protect his ship from being made un- seaworthy; and in other respects no dovbt he has the right to interfere if he considers that the pro- posed stowage is likely to impose a liability upon his owners. If it could be proved by the charterers that the bad stowage was caused only by the cap- — A-94 — tain’s orders, and that their own proposed stowage would have caused no damage no doubt that might enable them to escape liability. But the reservation of the right of the captain to supervise, a right which in my opinion would have existed even if not ex- pressly reserved, has no effect whatever in relieving the charterers of their primary duty to stow safely; . .”’ (pp. 937, 8). On the same matter, Lord Porter has stated: ‘¢. . . In my opinion by their contract the charterers have undertaken to load, stow and trim the cargo, and that expression necessarily means that they will stow with due care. Prima Facie such an obligation imposes upon them the liability for damage due to improper stowage. It is true that the stowage is contracted to be effected under the supervision of the captain, but this phrase does not, as I think, make the captain primarily liable for the work of the charterers’ stevedores. It may indeed be that in certain cases as, e. g., where the stability of the ship is concerned the master would be responsibile for unseaworthiness of the ship and the stevedore would not. But in such cases I think that any lia- bility which could be established would be due to the fact that the master would be expected to know what method of stowage would affect his ship’s stability and what would not, whereas the stevedores would not possess any such knowledge . . .’’ (pp. 951, 2). Like the Court of Appeal below it, the House of Lords is unanimous in its conclusion that under the quoted clause of Article 8 of the charter party the charterers have the primary duty to stow safely. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0527%3A2. Public record. Not legal advice.