Brief for the United States in Opposition — Horn v. Cia de Navegacion Fruco, S. A.

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PREME COURT. U & |

MAR 18 1969

iN THE JOHN F. DAVIS, CLERK

Supreme Court of the United States

OCTOBER TERM, 1968

no. 1002

HEINRICH C. HORN,

Petitioner,

versus

CIA DE NAVEGACION FRUCO, S. A., and

J. R. ATKINS, d/b/a ALABAMA FRUIT

-AND PRODUCE COMPANY,

Respondents,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

T. K. JACKSON, JR.

1101 Merchants National

Bank Building

Mobile, Alabama 36601

Counsel for Respondent

RAE M. CROWE

W. BOYD REEVES

Armbrecht, Jackson & DeMouy

1101 Merchants National Bank

Mobile, Alabama

Of Counsel

INDEX

Page

Opinions Below ..... LSaCeeereeseveveeeonneeeeKeeees 2

Se ee ee Pe reer 2

SE PU iv bei vNseevecesnenbeneecteunenees 2

Ee ee ee ee 2

eT s hy tu aed adn dhs DROS RCS EREASOD 2

Reasons for Refusing the Writ ............. ec cee eee ee 8

ee ee ee eee ee eee eT ee 17

CITATIONS

Page

Cases:

Cullen Fuel Co. vs.Hedger Co.,

Oy Se DE GE Fer eer edvstnvessveessercenes 15

Elia Salzman Tobacco Co. vs. S.S. Mormacwind,

Ae 8 MT PeRe eee Tee eT TTT Te eee 14

Framlington Court, The, 69 F, 2d 300............ 9,10,15

International Navigation Co. vs. Farr & Bailey

wom Goe., BORE, TRE OS. BED wv vsescccesss 9,10,15

McAllister vs. United States, 1954, 348 U.S. 19 ... .8,12,14

| Ontani, The, 54 F. 2d 1075 .........cees ee eeeees 11,16

i Oxford Paper Co. vs. The Nidarholm

: Pees we Ws Ns 6 ence hse cekSeesbeaees 12,16

:

| Pioneer Import Corp. vs. SS Lafcomo,

i Oy We MP 5 casero eetecescdevecsesuneeen 13

| Southhawk, The, 1903, 191 US. 1......... cera 12

Statutes:

ee erat sea 6.8

: a Wee WO OO on oe kee nb 0ve sds Vinwetiesacee 11

Se i OV rn Wedd ewiabecsenwenee es 16

S. eae, MEME as kuneewialevesueeas -...10

. ee MOE coe Cn oh pny haaewunce sees 10

: See: | Re Oe GU bh vk ee eee ihe beeeesadvoeces 10

-

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

NO. 1002

HEINRICH C. HORN,

Petitioner,

versus

CIA DE NAVEGACION FRUCO, S.A., and

J. R. ATKINS, d/b/a ALABAMA FRUIT

AND PRODUCE COMPANY,

Respondents,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

The Respondents, Cia de Navegacion Fruco, S.A., and

J. R. Atkins, d/b/a Alabama Fruit and Produce Company,

respectfully submit their brief in opposition to Petitioner's

Writ of Certiorari seeking review by this Court of a

judgment of the United States Court of Appeals for the

Fifth Circuit, affirming in part and reversing in part a

decree in Admiralty rendered by the United States District

Court for the Southern District of Alabama.

EARLIER REPORTS

The opinion of the District Court is reported at 233 F.

2

Supp. 637 (Appendix C of Petition). The opinion of the

Court of Appeals entered on November 5, 1968 is reported

at 404 F. 2d 422 (Appendix A of Petition).

Respondents are satisfied with the presentation of

JURISDICTION, QUESTIONS AT ISSUE, and STATUTES

INVOLVED as set forth in the Petition of Heinrich C.

Horn, Petitioner.

STATEMENT OF THE CASE

Respondents are not in agreement with the statement

of the case as set forth in the Petition of Petitioner for

Writ of Certiorari and respectfully make the following

statement of the case:

There is involved in this action four (4) cases which

were consolidated for trial in the District Court and

consolidated on appeal in the Court of Appeals. All of the

cases arose out of the charter of two sister vessels, the

HEINZ HORN and MARIE HORN, by Petitioner to the

Respondent Cia de Navegacion Fruco, S.A. The first case,

referred to by the courts below as Voyage Number 1,

involved a shipment of bananas in boxes and stems on. the

HEINZ HORN; the second case, referred to by the courts

below as Voyage Number 4, involved a shipment of bananas

on the HEINZ HORN in stems; the third case involved a

claim by Petitioner for charter hire of the HEINZ HORN;

and the fourth case involved a claim by Petitioner for

charter hire as to the MARIE HORN. Petitioner eeeks a

review only of the decision of the Court of Appeals as to

the three cases involving the HEINZ HORN.

On April 30, 1962, Cia de Navegacion Fruco, S. A.

(herein referred to as “Fruco”) entered into a time charter

3

agreement with Heinrich C. Horn (herein referred to as

“Horn”) for the charter of the M/V HEINZ HORN for the

carriage of bananas between good and safe ports in Ecuador

and the Gulf Coast. The charter agreement, while on a New

York Produce Exchange Charter Party printed form, was

replete with deletions, interlieations, and appended over 40

additional mimeographed clauses so as to make the charter

agreement applicable only to the partics here involved. The

charter specifically and emphatically warranted the vessel as

a banana carrier and also expressly, by typewritten

interlineation, warranted that the master would “use

diligence in caring for the proper ventilation and

refrigeration of the cargo”, and “also run temperatures in

accordance with charterer’s instructions.”

Although warranted as a “banana carrier” the HEINZ

HORN was admittedly neither designed nor utilized

exclusively as a banana carrier, and it carried frozen produce

on many occasions where production of subfreezing air is

required.

Pursuant to the said charter party the HEINZ HORN

went on charter to Fruco at Mayaguez, Puerto Rico on or

abou: June 3, 1962. The vessel proceeded to Puerto Bolivar,

Ecuador to commence its initial voyage under the charter.

In accordance with the charter, the charterer delivered

written instructions to the ship before it arrived in Bolivar

advising as to the care in stowing of the cargo and

maintenance of temperatures. The vessel arrived in Bolivar

on June 10th and commenced loading bananas under the

supervision of the ship’s officers (R. 244). The bananas werc

loaded on board the vessel in both stems and boxes. On

June 12, 1962, the master signed two clean receipts or bills

of lading for the cargo, without exception, acknowledging it

to be in good order and condition. Respondent Alabama

+

Fruit & Produce Company was consignee of the cargo and

upon presentation of the clean bills of lading, a letter of

credit furnished hy Alabama Fruit & Produce Company was

honored by an Ecuadorian bank and the sale consummated

to Alabama Fruit & Produce on June 12, 1962. The

stowage of the cargo in the hatches was supervised by

Wilhelm Schultz, the Chief Officer, or by the mate on

watch. The Master of the vessel, being ill, was never seen on

deck during the loading operation in Puerto Bolivar by

witness Jose Turner (R. 240), although the Chief Mate

testified to the contrary.

The Chief Mate and the mate on watch supervised the

loading of the cargo as evidenced by the following entry in

the vessel’s deck log for June 12, 1962 (L. Ex. 36):

“The cargo was loaded under supervision of the

Captain and officers. The ship was at the beginning of

the voyage in a thoroughly seaworthy condition, and

was properly fitted out and provisioned. The crew was

complete and healthy.” (Emphasis supplied)

During the three day period while the cargo was being

loaded and stowed, the ship’s officers failed and/or refused

to operate the vessel’s refrigeration equipment., The

refrigeration equipment was finally placed in operation at

6:00 p.m. on June 12th, and the vessel sailed for Mobile,

Alabama at midnight on the same day.

On June 15th, according to the Chief Mate, the vessel

passed through the Panama Canal, and the Master, who had

been ill for sometime, left the vessel. It should be noted

that the Master’s illness was neither sudden nor unexpected.

He had been, according to the Chief Mate, seriously ill for

several months before the vessel went on charter and prior

ee ates

enemies ee Cgusammnate

5

to the time the vessel ever reached Puerto Bolivar.

The only evidence presented at the trial as to the |

normal complement of officers required on the vessel was

the testimony by deposition of the Chief Mate who testified

the normal complement of officers was a Master and three

(3) mates, but that there were only two (2) mates aboard

who shared the third officer’s pay (L. Ex. 40, pp. 5, 6).

The Petitioner appends as an Appendix G to his

Petition a printed copy of a letter from the office of the

German Consulate General to Messrs. Lamote, Burns & Co.,

Inc. (Neither of whom were parties to this litigation in the

courts below) to the effect that a German Code, which has

never been offered in evidence in this cause, requires only a

Master and two mates on the class of vessel of the HEINZ

HORN. The said letter is dated July 22, 1968 (several years

after the trial of the subject case in the District Court) and

was not offered in the District Court; the letter was first

presented in the Court of Appeals as an appendix to the

Petitioner’s Petition for Rehearing filed in the said Court of

Appeals following that Court’s initial opinion dated June 28,

1968. While it is submitted the letter is completely

inadmissible at this late date as being hearsay, self-serving,

irrelevant, incompetent and immaterial, the fact remains that

irrespective of the new contended complement of mates

under the alleged German Code, the normal complement of

mates on the HEINZ HORN was three (3) mates according

to the testimony of the vessel’s Chief Mate and as found by

the District Court.

Neither the Master nor the two young mates were

experienced with the carriage of bananas in boxes; nor had

the HEINZ HORN ever carried boxed bananas. The

ee oe eT

6

experience of the Chief Mate was primarily with general

cargo.

The vessel arrived in Mobile, Alabama on June 21st at

8:00 p.m. and her hatches were opened for the

commencement of discharging operations at 7:00 a.m. on

June 22nd. At this time, it was discovered that the greatest

part of the fruit cargo was in a ripe, ripening and/or turning

condition, with much of it “ready to eat.” The cargo in the

No. 2 hold was almost a total loss; and contrary to the

statement and argument of Petitioner, the same pattern of

damage existed in the No. i hold. The Chief Mate testified

that he saw “a high percentage of ripe ones” (bananas) in

the No. 1 hold (L. Ex. 40, pp. 53, 54), and that in his

opinion the vessel had a poor output in the No. 1 hold (L.

Ex. 40, p. 60). Witness Haas testified the fruit in the No. 1

hold had a high percentage of ripes and that some of the

fruit in the No. 1 hold was sold, but not all of it (R. 213).

The trial court found damage to the entire cargo, not just

damage in the No. 2 hold as Petitioner endeavors to state.

The record clearly shows that all the cargo in the No. 1

hold was not accepted and sold as stated by Petitioner in

his Petition for Writ of Certiorari.

The District Court found, on substantial evidence, that

the vessel failed to exercise due diligence to insure the safe

carriage of the cargo in that her officers failed to cause the

bananas to be stowed properly, and further found the vessel

failed to exercise due diligence in promptly pulling down

the air temperature in the colling system and maintaining

the temperature at the desired level.

The Court of Appeals affirmed the determinations of

the trial court and found they were not clearly erroneous,

citing Rule 52(a), Federal Rules of Civil Procedure,

Oe

7

McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6,

99 L. Ed. 20, and other authorities. In addition, the Court

of Appeals concluded the vessel was unseaworthy with

regard to its personnel, and further held under the particular

charter party and the specific facts involved, the vessel was

responsible for the faulty stowage of the cargo. Damages

were awarded Respondents Atkins, consignee of the cargo,

and Fruco in the amount of $31,261.64; Horn was awarded

damaged for charter hire withheld in the sum of

$26,946.76.

Immediately following the first voyage of the HEINZ

HORN, Respondents held several discussions relative to the

damage and performance of the vessel with Petitioner over 2

pierod of approximately seven days while the vessel

remained off hire in Mobile. Subsequently, the vessel sailed

for Puerto Bolivar and stood by for two days waiting for a

cargo to be collected. The District Court awarded Horn

charter hire for these periods, and the Court of Appeals

reversed on the ground the delay resulted from a

“deficiency of men” under Clause 15 of the Charter.

On the fourth voyage of the HEINZ HORN, the Master

again signed a clean bill of lading, noting no exceptions, for

a shipment of 8,170 stems of bananas consigned ‘o

Respondent Atkins. The cargo arrived in Mobile with 55.6%

of the fruit ripe and turning. This entire cargo consisted of

stems of bananas. The Master of the vessel testified by

pretrial deposition that he and his officers were on deck

during loading of the cargo and that they rejected any

stems about which they had any suspicion and that the

cargo when loaded looked good to him. The District Court

found there was no proof of inherent defect, quality or vice

of the cargo; the Court awarded damages of $18,495.73,

plus interest to Respondents. The Court of Appeals affirmed

8

and in addition held that the provisions of the Carriage of

Goods by Sea Act barred Horn from raising the refrigeration

clause of the charter party as a defense.

The Court of Appeals further affirmed the District

Court’s finding that Horn had mitigated any damages it may

have sustained by reason of the M/V HEINZ HORN and her

sister ship the M/V MARIE HORN being redelivered prior

to the expiration of the charter periods for the vessels.

REASONS FOR REFUSING THE WRIT

The issues in the present case are of such limited

breadth that they fall far short of meriting review by this

Court on certiorari. As may be readily observed from a

review of the opinion of the Court of Appeals below, this

case turned primarily in the District Court on a

determination of contested facts, and the Petitioner is in

effect requesting this Court to again review those facts

which have been previously resolved against him. The Court

of Appeals, on the basis of Rule 52(a) Federal Rules of

Civil Procedure and McAllister vs. United States, 1954, 348

US. 19, 75 S. Ct. 6, 99 L. ed. 20, accepted the

determinations of the District Court and found they were

not clearly erroneous. —

The conclusions reached in the Court of Appeals were

based on the particular charter agreement involved and the

facts as presented by the evidence. The charter agreement,

while on a New York Produce Charter Party printed form,

was extensively amended by deletions, additions and

interlineations to set forth the agreement of the parties

involved in this litigation and the exact purpose for which

the vessel was to be used (R. Ex. No. 2). The charter party,

as thus amended, was not a standard printed form, but was

in terms applicable to the parties to this particular litigation

and to the particular and specialized cargo involved.

Consequently, this particular litigation is not of interest to

the shipping industry as a whole, but it is of interest only

to the litigants here involved in light of the facts as

presented.

The decision of the Court of Appeals is clearly correct,

and there is no conflict of decisions presented in this case

nor does it present any important question of Federal law

requiring consideration and decision by this Court.

Zz

The decision below is clearly correct.

The Court of Appeals affirmed the judgment of the

District Court awarding damages to Respondents as to

Voyage Number 1 of the HEINZ HORN on two separate

grounds. These theories are: (1) under the facts the vessel

was unseaworthy due to the lack of an adequate and

competent crew, relying on this Court’s decision of

International Navigation Co. vs. Farr & Bailey Mfg. Co.,

1901, 181 U.S. 218, 21 S. Ct. 591, 45 L. ed. 830, and its

own decision of The Framlingion Court, (5 Cir., 1934) 69

F. 2d 300, cert. denied 292 U.S. 651, 54 S. Ct. 860, 78 L.

Ed. 1500; and (2) the damage to the cargo resulted from

improper stowage, said stowage, having been supervised by

the master and officers, was the responsibility of the vessel.

Both of these findings were substantially supported by law

and fact.

a.

Inadequate Crew

Petitioner complains there is no support for the Court

of Appeals conclusion that a vessel is deemed to be

Pee ee en Ee ee

10

unseaworthy at the commencement of the voyage unless the

owner insures that adequate and competent personnel will

remain on board throughout the voyage. Such conclusion is

amply supported by this Court’s decision of International

Navigation Co. vs. Farr & Bailey Mfg. Co., supra, and by

the case of The Framlington Court, supra, both of which

were relied upon by the Court of Appeals. Here, the Court

found the vessel’s officers were both numerically inadequate

and lacking in proper training for the carriage of the

delicate cargo of bananas, and this situation not only

continued throughout the first voyage, but it was in

existence when the vessel initially went on charter.

Both the trial court and the Court of Appeals correctly

found the vessel failed to exercise due diligence in the

carriage of the cargo. The Court of Appeals held, and

correctly so, that it was immaterial whether the cause of

the loss was manifested by the numerical inadequacy of the

crew, or the want of proper training and instruction, since

Petitioner failed to carry its burden of proving an absence

of causation between the unseaworthiness and the loss. The

charter party and the particular shipment of bananas were

subject to the Carriage of Goods by Sea Act, 46 U.S.C.

1301 et seq. Section’ 1304 (1) of that Act provides in

part:

‘“‘Whenever loss or damage has resulted from

unseaworthiness, the burden of proving the exercise of

due diligence shall be on the carrier or other persons

claiming exemption under this section.”

The Act further provides in 1304 (2)(q) that:

“Neither the carrier nor the ship shall be responsible

for loss or damage arising or resulting from -

11

2 eee

“(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

proof shall be on the person claiming the benefit of

this exception to show that neither the actual fault or

privity of the carrier nor the fauit or negiect of the

agents or servants of the carrier contributed to the loss

or damage.”

COGSA clearly placed the burden of proving lack of

causation on the Petitioner, and the court below concluded

Petitioner failed to carry this burden.

Petitioner contends that the Third Circuit Court of

Appeals decision of The Oritani, (3 Cir., 1931) 54 F. 2d

1075, affirming 40 F. 2d 522, is in conflict with this case

on the burden of proof issue. However, a reading of the

case will show that the case is clearly not in conflict with

the case at bar. Furthermore, it was decided in 1931 under

the Harter Act, 46 U.S.C. 190, et seq. and not under

COGSA which was enacted in 1936. Consequently, there

could be no conflict between this case and The Oritani,

supra, because COGSA has in effect supplemented the

Harter Act. However, irrespective of any contended conflict

on the issue of who bears the burden of proof as to

causation, the evidence in the trial court was overwhelming

that the vessel had an incompetent and inexperienced crew

which failed to exercise due diligence in the carriage and

stowage of the cargo; in addition, the District Court found,

and the Court of Appeals affirmed, that the necessary

temperatures for the carriage of the delicate cargo of

bananas was not reached within the period of time required

for the safe and proper carriage of bananas. It obviously

12

follows that such failures were the direct cause of the

damage to the cargo.

The evidence was conclusive that the crew was

inadequate and failed to exercise due diligence. This finding

of the Court of Appeals was correct and should not be

disturbed. McAllister vs. United States, supra.

b.

E Improper Stowage

7 The Court below concluded that the cargo was

improperly stowed under the supervision of the master and

his mate and that such improper stowage was, under the

facts presented, the responsibility of the vessel. The evidence

clearly reflected that the ship’s officers supervised the

stowage. The vessel deck log contains the entry:

“The cargo was loaded under supervision of the

Captain and officers.”

The Court of Appeals, relying on this Court’s decisions

Oxford Paper Co. vs. The Nidarholm, 1931, 282 U.S. 681,

51 S. Ct. 75 L. ed. 614, and The Southwark, 1903, 191

US. 1, 24 S. Ct. 1, 48 L. ed. 65, held that the stowage of

the cargo “affected the capacity of the ship to transport the

delicate cargo in the manner specified by the charter party”

and consequently the “decisions by and for the master with

i regard to the stowage must be said to have been made on

behalf of the ship’s owner.” Such holding is in accord with

the decision of this Court in Oxford Paper Co. vs. The

Nidarhoim, supra, wherein the Court said:

“This warranty extends to unseaworthiness of the ship

due to faulty stowage of cargo...even though the

eehanbaabe teas eine - -

13

charterer himself, subject to the supervision of the

Captain, loads it himself. The charterer is entitled to

rely on the Master in the exercise of his expert

knowledge and judgment, to control the disposal of the

cargo so as to avoid damages to it from any

_ consequent unseaworthiness of the vessel.” (Emphasis is

supplied.)

As pointed out in the opinion of the Court of Appeals,

the facts of this case are distinguishable from those

decisions which the Petitioner here contends to be in

conflict because here the method of stowage, which was

selected and supervised by the Master or the mate on his

behalf, directly affected the ability of the vessel to provide

the required mode of transportation.

Petitioner recognizes the correctness of the Appellate

Court’s conclusion that Respondent Atkins, as cargo owner,

has an in rem action against the vessel, but complains that

Fruco, as charterer, may also be liable to Atkins. The

undisputed facts is that Atkins has not sued Fruco; he has

sued the vessel in rem and Horn in personam. Irrespective

of whether Fruco, as charesterer, may be liable to Atkins,

as cargo owner,this would not relieve Petitioner or the

HEINZ HORN, in rem, of their liability for cargo damage.

Pioneer Import Corp. vs. SS LAFCOMO, et al., (D. Ct. N.Y.

1943) 49 F. Supp. 559, aff'd 138 F. 2d 907, cert. denied,

321 U.S. 766.

Petitioner contends the Court of Appeals incorrectly

concluded the burden of establishing inherent vice in the

cargo loaded on Voyage Number 4 of the HEINZ HORN

rested with the Petitioner. While the Appellate Court upheld

the trial court’s finding that there was no proof of inherent

defect, quality, or vice in the banana cargo on Voyage

iS tac a

% scdababadeatlti: Sis nthe PAA sess scab lao at te aE ec EALES DENAVIR AT om

14

Number 4 as not being clearly erroneous, the Court also

affirmed the District Court’s determination that the vessel’s

crew failed to exercise due diligence in the operation of the

vessel’s refrigeration equipment. Such due diligence was

required of the vessel under Clause 12 of the charter party.

It appears that Petitioner is arguing that the Appellate

Court should have applied a ruling that because the internal

condition of the cargo was not adequately revealed by

external appearances,the Respondents should have been

required to present some evidence beyond a clean bill of

lading as to the condition of the cargo at the time of

loading. While such a contention overlooks the fact that this

cargo consisted entirely of stems of bananas which were

readily observable by the Master and his mate, the record

clearly shows that further evidence, although not necessary,

of the condition of the fruit at the time of loading was in

fact offered. The testimony of the Master and Chief Officer

was offered by Respondents, as well as a loading report

showing the condition of the fruit at the time of loading in

addition to the extreme overly ripened condition of the

fruit at the time of delivery in Mobile. In considering all of

this evidence, the trial court concluded there was no

inherent defect, quality, or vice in the bananas and this

finding was held by the Appellate Court not to be clearly

erroneous. McAllister vs. United States, supra. The Second

Circuit Court of Appeals has reached the same result in Elia

Salzman Tobacco Co. vs. S. S. Mormacwind, (2 Cir., 1967)

371 F. 2d 537. (See footnote 2 at p. 539.)

Finally, Petitioner says that the Court of Appeais

erroneously reversed the District Court’s judgment awarding

Petitioner charter hire for the period of time following

Voyage Number 1 in Mobile and subsequently in Puerto

Bolivar. Such holding was not incorrect inasmuch as Clause

15

15 of the charter party expressly stated the charterer was

not liable for time lost by reason of “deficiency of men.”

Since these delays or “off-hire” periods directly resulted —

from the damages cargo on Voyage 1 which was caused by

reason of an “inadequate crew”, the court below correctly

held Respondents were not responsible for the loss of time.

Il

There is no conflict of decision.

The Petitioner asserts there were four (4) instances

wherein the decision reached in the Court below were in

conflict with other Circuit Courts of Appeal. Specifically,

these are:

A. The holding that a vessel is deemed unseaworthy at

the start of the voyage unless the owner insures that

adequate and competent personnel will remain on board

throughout the voyage.

The Court of Appeals holding in this regard,while not

the sole basis for holding the HEINZ HORN unseaworthy, is

in accord with this Court’s decision of International

Navigation Co. vs. Farr & Bailey Mfg. Co., 1901, 181 US.

218, 21 S. Ct. 591, 45 L. ed. 830,and The Framlington

Court, (5 Cir., 1934) 69 F. 2d 300, cert. denied 282 U.S.

651, 54 S. Ct. 860, 78 L. ed. 1500, and is not in conflict

with Cullen Fuel Co. v. Hedger Co., 1933, 290 U:S. 82, S.

Ct., 78 L. ed. 189, or with the other decisions cited by

Petitioner. To again refer to the facts of this case,the Master

did not become ill after the vessel went on charter as he

had been ill for sometime prior to the vessel ever going on

charter; the vessel did not carry her normal complement of

officers; and the officers had no experience with boxed

16

bananas. These were not conditions beyond the owner’s

control which arose after the vessel commenced her voyage,

but were in existence prior to and at the commencement of

the voyage.

B. The holding that the vessel must bear the burden of

proving absence of causation between the unseaworthiness

and the loss.

Petitioner contends such holding conflicts with the

Third Circuit Court of Appeals decision of The Oritani, 40

F. 2d 522, aff'd 54 F. 2d 1075 (3 Cir., 1931). As

previously noted The Oritani is not applicable and it wes

decided prior to the enactment of the Carriage of Goods By

Sea Act 46 US.C. 1300 et seq. which expressly places

such burden of proof on the vessel. Consequently, the

decision herein in following COGSA is not in conflict.

C. The holding of the court below that, under the

facts; the shipowner was responsible for the faulty stowage

and resulting loss of cargo.

c

Petitioner contends this holding conflicts with decisions

in the Third and Second Circuit Courts of Appeals and is

incompatible with this Court’s decision of Oxford Paper Co.

vs. The Nidarholm, 1931, 282 U.S. 681, 51 S. Ct. 266, 75

L. ed. 614. Actually, the decision here on petition is readily

factually distinguishable f@eathe cases cited by Petitioner and

were expressly distinguished by the Court of Appeals below.

The Appellate Court in fact cites The Nidarholm decision in

support of its conclusion that under the particular facts

presented in this case the shipowner was responsible for the

faulty stowage and resulting loss. It is submitted that a

distinction between facts of cases does not present a

conflict such as would warrant a review by this Court on

certiorari.

17

D. The conclusion that the Petitioner shipowner had

the burden of proving inherent vice or defect in the cargo.

Petitioner argues that the conclusion by the Court of

Appeals to the effect the vessel owner must bear the burden

of proving inherent vice or defect in the cargo of stemmed

bananas conflicts with decisions of the Second Circuit Court

of Appeals and with decisions from various District Courts

in the Fifth Circuit. This is simply not the case. The

decisions to which Petitioner refers concerned cargo where

deterioration may have resulted from a hidden defect which

was not adequately revealed by external appearances; here,

the cargo was stems of bananas which were easily

observable. The decision of the Court below was grounded

on considerable more evidence as to the condition of the

cargo at the time of loading than a clean bill of lading. In

addition, the Court made a positive finding of lack of due

diligence on the part of the vessel’s officers and crew in

caring for the cargo. It is submitted the decisions referred

to by Petitioner are not applicable to the facts here

presented, and there is no conflict between those cases and

the instant case.

Ii

There is no important question of Federal law.

The issues in thic case involve only a factual situation

pertaining to shipments of bananas under a charter party

agreement which was applicable only to the particular

parties thereto. The questions prezented, while arising under

admiralty and maritime law, «re ust of the significant

importance which merit review b, this Couit.

CONCLUSI JN

The decision in the Court of Appeals primarily involved

a determination of facts and does not present questions of

general importance to the entire shipping and insurance

communities. The charter party involved, although on a

standard printed form, was extensively amended to conform

to the purpose and intent of the parties, and thc

ee Binctisdsrseiee bits EE

RT ite nb aS Perit oS ie a ay Boe

18

conclusions of the Court of Appeals pertained to this

particular charter party, as thus amended. This case does

not give rise to a conflict of decisions, but rests solely on

its own unique factual situation.

It is respectfully submitted that the questions here

raised by Petitioner are not of such general importance or

concern so as to warrant a review by this Court and the

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

T. K. JACKSON, JR.

Counsel for Respondents

Rae M. Crowe

W. Boyd Reeves

Armbrecht, Jackson & DeMouy

1101 Merchants National Bank Building

Mobile, Alabama 36601

Of Counsel

PROOF OF SERVICE

I, T. K. JACKSON, JR., the attorney for the

Respondents herein and a member of the Bar of the

Supreme Court of the United States, hereby certify that on

the 14 day of March,1969, I served a copy of the foregoing

brief for Respondents in opposition on Heinrich C. Horn,

Petitioner herein, by mailing a copy of the same in a duly

addressed envelope, with first class postage prepaid, to the

Honorable John H. Tappan, attorney for the Petitioner, at

his office address, 510 Van Antwerp Building, Mobile,

Alabama 36601.

T.K. JACKSON, JR.

Counsel for Respondents

1101 Merchants National Bank

Building

Mobile, Alabama 36601