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March 16, 1973


Gesell, District Judge.

The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 This is a diversity and admiralty suit claiming damages for breach of contract and negligence. Page, a shipper, sues defendant steamship company for failure to carry cargo from New York to Greece and failure to notify that the shipment was left on the dock. Tried to the Court without a jury, the underlying facts necessary to determine liability are not substantially in dispute.

 Page had a $15,000,000 contract with the United States Information Agency to build a station for the Voice of America in Greece. This included 32 high frequency antennae, from 196 feet to 410 feet high, for transmittal and receipt of voice communications. The contract allowed 1095 days for completion, commencing November, 1968, with a $900-per-day penalty for delay. Substantial amounts of equipment and supplies had to be sent periodically to Greece from the United States. For this purpose, Page used an international freight forwarder in New York, Rohner, Gehrig & Co., Inc., which, in turn, arranged shipments for Page with Hellenic. This course of dealing was established prior to the events on which this suit focuses.

 Hellenic's fleet included the M/S TURKIA, operating from Pier 57, Brooklyn, New York. In September, 1971, Page arranged through its forwarder to ship a container to Salonica, Greece, for use in the Voice of America project. The container, some 20 feet in length, weighed about 20 tons and held, among other things, various special tools and rigging equipment, some of which were urgently needed at the project site where antennae were being erected.

 In September it was generally known to Page and other shippers that a longshoremen's strike was in the offing. The Union's contract expired September 30, at midnight, and a strike was a distinct possibility. *fn1"

 On September 16, the Page container arrived at Hellenic's dock and was thereafter in defendant's custody. At noon on September 30, Hellenic advised Page, in response to an inquiry through the forwarder, that the container was on board the M/S TURKIA, and sent the forwarder a bill of lading which was immediately paid. While there is some doubt as to which representative of Hellenic gave this advice by telephone, there is none that the advice was given. On October 1, M/S TURKIA sailed after the strike had commenced, with Page's container still on the dock. *fn2"

 Containers are customarily loaded at the last stage of loading. They are placed in hatch openings for convenience because of their bulk. At this time there were three or four containers destined for loading. None were loaded, and Hellenic's dock manager knew this to be so. The M/S TURKIA departed without being fully loaded. About 163 tons were put on board and about 600 to 700 tons were left behind. While Hellenic used every effort to load fully, time was short. Hellenic was unable to complete loading by reason of the impending strike, which caused a shortage of longshoremen and a work slowdown on the eve of the strike.

 The first intimation Page had that the vital container was not aboard the M/S TURKIA came around November 5, when the container was not unloaded with other Page cargo at Salonica, Greece. With considerable difficulty and expense Page eventually retrieved the container, took it to its plant at Vienna, Virginia, repacked items and shipped the equipment by air and surface to Greece, where it arrived after passage of considerable time.

 Before turning to a consideration of the various efforts to prove damages, it must be determined whether liability has been established either for Hellenic's failure to ship or for its failure to inform Page promptly of non-shipment.

 Hellenic is excused from its failure to carry the container as required by its contract by the provisions of 46 U.S.C. § 1304(2)(j), but it is not absolved of its responsibility to the shipper arising from its misrepresentation as to the status of the cargo combined with its negligence in failing to advise the plaintiff that, contrary to prior representations, the container was left on the dock. Hellenic's inaccurate assurances and failure to correct by immediate subsequent advice, misled plaintiff to its detriment.

 Since no containers were loaded, a fact known at the time to defendant's personnel, it was on notice of non-shipment. The M/S TURKIA actually sailed after the strike began. Given the paid bill of lading and all the other circumstances, there was no warning or constructive notice to Page that its container was not loaded and headed for Greece, as there might have been had the ship not sailed at all.

 In the light of all of these considerations involving acts or omissions of Hellenic with respect to the container, Hellenic had a continuing duty to advise the shipper that the container had been left behind, even though it had not been advised that the cargo was vital to continued progress of the work in Greece. The strike did not prevent Hellenic from giving Page prompt and proper notice. This duty existed at least as long as the container sat on the dock awaiting loading and transportation. This continuing duty to notify did not arise out of Hellenic's statutory obligations, the bill of lading or any agreement with Page, nor is it connected with the actual transportation of goods at sea, so that the liability limitations of 46 U.S.C. §§ 1304(2)(j) and 1304(5) are inapplicable. See 46 U.S.C. §§ 190 and 1311. Rather, it constitutes Hellenic's common law common carrier duty of reasonable care under circumstances such as presented here. Gold Star Meat Co. v. Union Pacific R.R. Co., 438 F.2d 1270 (10th Cir. 1971); 13 C.J.S. Carriers § 199, at 403 (1939); see 13 Am. Jur. 2d Carriers § 371 (1964). The negligent breach of this duty makes defendant liable in tort for damages proximately caused by failure to notify. As for measuring the quantum of damages, plaintiff, of course, assumes a distinct burden.

 The proof established that upon learning of the non-shipment when the M/S TURKIA arrived in Greece, Page retrieved the container from the dock with the aid of the United States (the strike still being in effect) and after transport to its plant at Vienna, Virginia, the contents were repackaged and sent by air and surface to the construction site. Substantial expense was involved, but this ...

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