Knoch, Senior Circuit Judge, and Kerner and Pell, Circuit Judges.*fn1
Although the sea was clearly less than boiling hot, the defendants' ships equally clearly delivered cabbages far less than fit for kings.*fn2 Therefrom arose this lawsuit.
Plaintiff Aunt Mid, Inc. appeals from the judgment of the district court holding the defendants not liable for the spoilage of two cargoes of Danish cabbage carried from Rotterdam, The Netherlands, to Chicago, Illinois, aboard ships chartered by the defendants, the Ghanaian Motor Vessel Pra River and the Norwegian Motor Vessel Sirefjell. Plaintiff sought recovery of $10,500 for the damage to the cabbages on the Pra River, and $6000 for the cabbages on the Sirefjell.
The Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-1315, governs these consolidated actions. Aunt Mid contends that it delivered the cabbage to the vessels in good condition and that as a result of the defendants' negligent stowage and carriage the cabbages were rotten upon arrival in Chicago. It further claims that the Pra River and the Sirefjell were unseaworthy.
Aunt Mid, Inc. makes cole slaw and tossed salads for retail sale. In 1966, the president of Aunt Mid, Russell LaMantia, entered into a joint venture on behalf of his company with Suffolk Farms Packing Company of Massachusetts to purchase Danish cabbage from Holland. Arnold Wolf of Suffolk Farms represented the joint venture in the purchase and inspection of the cabbage in Holland.
The two firms jointly purchased 500 tons of cabbage in Holland in late October or early November 1966. All 500 tons came from two sources: a cabbage dealer from whom 350 tons were purchased and a farmer from whom 150 tons were purchased. Aunt Mid's share of the joint purchase was 100 tons. The testimony was vague as to whether Aunt Mid's cabbages came from both the farmer and the dealer. Plaintiff asserts that the cabbages from the two sources were intermixed in shipment. This, no doubt, is true as to the total 500 ton shipment which was spread through approximately sixteen ships; however, it is far from clear that the specific cabbages involved in this case, which were carried on two ships only, came from both sources. Further, as to the 350 tons from the dealer, there is a paucity of evidence on such significant matters as to how many farmers may have produced these cabbages and as to the care they may have received prior to their being loaded aboard the vessels.
Wolf first inspected the 150 tons of cabbage in the farmer's holding house in the latter part of November or early December 1966. The farmer had grown all his own cabbages and had stowed them in the holding house, wherein they were the only cabbages. Wolf testified that he found the farmer's cabbage to be good, solid cabbage and properly handled. Accompanied by LaMantia, he revisited the holding house in February 1967. The cabbages were again found to be good and professionally handled. The cabbages purchased from the produce dealer were never personally observed by either Wolf or LaMantia prior to shipment. As indicated hereinbefore, there was no evidence as to how they were stored and cared for after harvesting or what their pre-voyage condition was.
We find no reason for qualifying this observation because of Aunt Mid's assertion that there was such evidence in the form of certain governmental certificates and bills of lading. We discuss the probative value of these items hereinafter.
The cabbages bound for Aunt Mid's in Chicago were packed in 50 pound mesh bags a few days prior to being shipped and were carried to the port in closed trucks, where they were placed on four vessels, the voyages of only two of which are the subject of this action.*fn3 LaMantia requested that all the cabbages be shipped in ventilated stowage. The bills of lading issued by the vessels recited that the goods were to go "Hold Stowage."
The Pra River cabbages were stowed on board on April 15, 1967, as ordinary or general cargo, not as perishable cargo. The trip from Rotterdam to Chicago took 24 days, and the ship encountered temperatures ranging from approximately 32 degrees to 52 degrees F., the latter while on the Gulf Stream. On arrival at Chicago, the cabbages were decayed, gave off a strong rotting odor and were discolored black. A surveyor from the Department of Agriculture found that the cabbages suffered from bacterial soft rot. Before leaving Holland, the cabbages had received certification from the Phytosanitary Service (Plant Protection Service) of The Netherlands and the Export Control Bureau. Also, the vessel had issued a bill of lading stating that the cabbages were in "apparent good order and condition."
The cabbages to be shipped on the M. V. Sirefjell were taken on board on April 22, 1967, and were placed in a reefer compartment (but without the refrigeration turned on) as general cargo. Seven days at sea, the Chief Mate smelled the cabbages and ordered the refrigeration to be activated. The trip to Chicago took 26 days, during which time the ship encountered temperatures again ranging from 32 degrees to about 52 degrees. The cabbages on arrival were discolored black, were wet and running in part and had a rotting odor. The Department of Agriculture inspector found that the cabbages suffered from both bacterial soft rot and watery soft rot.*fn4 As in the case of the Pra River cabbages, the Sirefjell cabbages had received certificates from two Dutch agencies and a "clean" bill of lading from the vessel.
The rot in both shipments was general throughout. Because the cabbages were deemed unfit for consumption, the United States Bureau of Customs destroyed them.
The defendants contend that under the applicable law, a shipper, as a condition precedent to recovery, must establish the good order and condition of the goods shipped. He must prove, in the case of perishables such as cabbages, that the goods will survive the voyage booked. The district court below found that Aunt Mid failed to carry this initial burden.
The defendants also pleaded two affirmative defenses, either of which, they claim, would absolve them from liability: (1) that the damage resulted from an "act or omission" of the shipper (46 U.S.C. § 1304(2) (i)) and (2) that the damage resulted from an "inherent vice" of the goods (46 U.S.C. § 1304(2) (m)). The "act or omission" was the decision of Aunt Mid's president to ship the cabbages in hold stowage rather than under refrigeration to save freight costs. The "inherent vice" alleged was the presence of various bacteria, spores and fungi -- which were invisible to the human eye -- on the cabbages at the time of loading. These bacteria allegedly multiplied and caused the cabbage to decay. The district court held that the defendants had proved both the affirmative defenses.
Aunt Mid has urged that the defendants could not rest with the affirmative defenses. They assertedly also bore the burden of proving their freedom from negligence. The defendants have maintained that their showing that the damage resulted from an excepted cause eliminated the need for them to prove their freedom from negligence. In any event, the district court did consider the question of the carriers' negligence and the vessels' alleged unseaworthiness. It concluded that the cabbages were properly and unnegligently stowed and that the vessels were seaworthy.
Preliminarily, we note that this court is bound by the "clearly erroneous" test of Fed.R.Civ.P. 52(a). Our decision here reflects use of that test. Rules 1, 81(a), Fed.R.Civ.P. See also McAllister v. United States, 348 U.S. 19, 20, 75 S. Ct. 6, 99 L. Ed. 20 (1954), modif. denied, 348 U.S. 957, 75 S. Ct. 447, 99 L. Ed. 748 (1955).
We cannot agree with the plaintiff's argument, advanced in its reply brief, that the "clearly erroneous" rule is inapplicable to this case because there was little conflicting testimony and, therefore, there would be no need to rely on the trial judge's ability to view the witnesses and to make the ordinary determinations based on credibility factors.
We need not address ourselves to the somewhat divergent views on the scope of appellate review where the findings are based solely on documentary evidence or undisputed facts (see 2B W. Barron and A. Holtzoff, Federal Practice and Procedure §§ 1132, 1134 (Wright ed. 1961 and Supp.1970)). Here there was conflicting oral testimony, and the district court obviously did not find all witnesses equally credible. We reject the plaintiff's suggestion, the effect of which would be for this court to try the case de novo.
We also are constrained to remark upon the manner in which Aunt Mid challenged the district court's findings of fact. It did not help to clarify the issues for us in a close and complex case. The plaintiff discussed specific findings only in its reply brief, thus allowing the defendants no opportunity via brief to answer those challenges point by point. Such a deferring procedure increases the difficulty of an appellate court's reviewing task.
The parties agree that bacteria "caused" the cabbages to rot. Their experts seem to agree that certain conditions must be present for the bacteria to multiply to such an extent that they endanger the wholesomeness of the vegetables. However, the parties disagree as to who is to bear the fault for the cabbages' deterioration. By their affirmative defense based on 46 U.S.C. § 1304(2) (i), the defendants are basically maintaining that the growth of the bacteria resulted from Aunt Mid's failure to ship the goods under refrigeration. The plaintiff insists that the defendants' negligence ...