IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30579
_____________________
GEORGIA-PACIFIC CORPORATION; ASSOCIATED PULP & PAPER MILLS;
PHOENIX ASSURANCE COMPANY OF NEW YORK
Plaintiffs-Appellees
v.
M/V ANTHOS, her engines, tackle, appurtenances, etc., in rem;
ARMADA ANZ PARCEL SERVICE, INC; TRAVIS SHIPPING CORP; PYRSOS
MANAGING CO
Defendants-Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(93-CV-283-A-M2)
_________________________________________________________________
January 16, 1997
Before KING, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Armada Anz Parcel Service, Travis Shipping Corp., Pyrsos
Managing Co., and M/V ANTHOS (collectively “the vessel
interests”) appeal a judgment by the district court holding them
liable for damage to printing paper transported from Baton Rouge,
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
Louisiana to Burnie, Tasmania. Finding no error, we affirm.
I. BACKGROUND
In February 1992, Georgia Pacific sold 3,264 reels of
xerographic and offset printing paper to Associated Pulp & Paper
Mills (“APPM”). The reels were transported by sea from Baton
Rouge, Louisiana to Burnie, Tasmania. In preparation for the
voyage, the reels were completely wrapped in wax-laminated paper
and end caps.
Armada Anz Parcel Service was responsible for the reels
“from place of rest in loading terminal to end of vessel’s hook
at Burnie.” In other words, Armada Anz was responsible for the
cargo until it was unloaded on the wharf in Burnie. The reels
were inspected by surveyors in Baton Rouge, and, after the cargo
was received aboard the ship, a clean bill of lading was issued,
which stated that the reels had been shipped on board “in
apparent good order and condition.”
The reels were unloaded in Burnie by stevedores hired by the
vessel interests. The unloading process damaged many of the
reels because the stevedores used mallets and wedges to separate
the reels and wire slings to drag and hoist the reels from the
ship to the wharf. Surveyors for both parties observed the
unloading process, examined each reel, and made detailed
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findings. At that time they noted what appeared to be minimal
damage to about forty-nine percent of the reels. Thus, APPM’s
initial claim, made about six weeks after M/V ANTHOS left Burnie,
was for $79,044. However, upon attempting to process the paper,
APPM determined that the damage was much more extensive and
increased its claim to $500,000. APPM based its claim on the
amount of paper that it had to discard as unusable because of
damage incurred in the transport and unloading of the reels of
paper.
Georgia Pacific and APPM brought this admiralty and maritime
action against M/V ANTHOS as an in rem defendant, and against
Armada Anz Parcel Service, Inc., Pyrsos Managing Co., and Travis
Shipping Corp. as in personam defendants. After the suit was
filed, Phoenix Assurance Company, the cargo insurer, settled with
APPM for $487,595.02. At that time, the complaint was amended to
add Phoenix Assurance Company as a party plaintiff, proceeding as
subrogee to the rights of Georgia Pacific and APPM.
After a bench trial, the court rendered findings of fact and
conclusions of law holding that all of the plaintiffs were
entitled to recover from all of the defendants in the amount of
$463,954.56 plus interest. The court entered judgment for the
plaintiffs, and the defendants filed a timely notice of appeal.
Upon motion by the plaintiffs, the court amended its judgment to
increase the recovery to $480,598.81 plus interest.
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II. DISCUSSION
A. Clean Bill of Lading
The district court concluded that the bill of lading served
as prima facie evidence that the reels of paper were loaded on
the Anthos in the condition described therein. We review this
conclusion of law de novo, and we review the underlying fact
finding described below under the clearly erroneous rule.
Prudhomme v. Tenneco Oil Co., 955 F.2d 390, 392 (5th Cir.), cert.
denied, 506 U.S. 826 (1992). A finding of fact is clearly
erroneous when, although there is enough evidence to support it,
the reviewing court is left with a firm and definite conviction
that a mistake has been committed. United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948). If the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that, had it been sitting as the
trier of fact, it would have weighed the evidence differently.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
The Carriage of Goods by Sea Act1 (”COGSA”) governs all
contracts of carriage in which a bill of lading evidences a
contract for carriage of goods by sea to or from ports of the
United States in foreign trade. Under COGSA, the shipper
establishes a prima facie case by proving that the cargo was
1
46 U.S.C. §§ 1300-1315.
4
loaded in an undamaged condition and unloaded in a damaged
condition. Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th
Cir. 1995). As a general rule, a clean bill of lading is prima
facie evidence that the carrier received the cargo in good
condition. 46 U.S.C. § 1303(4); Blasser Bros., Inc. v. Northern
Pan American Line, 628 F.2d 376, 381 (5th Cir. 1990).
The vessel interests argue that the bill of lading cannot
serve as prima facie evidence when the damage to the goods is not
readily apparent. They argue that the current case is similar to
Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 353-54 (2nd Cir.
1981). In Caemint Food, the plaintiff sought to recover for
expenses and lost profits incurred as a result of mold and rust
damage to a portion of a shipment of canned corned beef. Id. at
349. The Second Circuit denied recovery on the grounds that,
despite presenting a clean bill of lading, the plaintiff failed
to bear its burden of proving that the goods were damaged while
in the carrier’s custody. Id. at 356. The court held that a
clean bill of lading was not prima facie evidence that the cargo
was in good condition at the time of shipment because the cargo
was “shipped in packages that would have prevented the carrier
from observing the damaged condition had it existed when the
goods were loaded.” Id. at 352. Just as the mold and rust on the
cans of corned beef were not apparent from an examination of the
cartons which contained the cans, so, the vessel interests
assert, any prior damage to the paper was not apparent through
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the outside wrappings. Because the paper was not visible through
the wrappings, they argue, it is impossible to conclude with any
assurance that the paper was in good condition when it was loaded
on the ship.
Georgia Pacific and APPM argue that the paper was packaged
in such a way that if the cargo had been damaged when it was
delivered to M/V Anthos, the surveyors would have been able to
observe external indications of that damage. Georgia Pacific and
APPM distinguish Caemint Food by pointing out that, while an
examination of the cartons did not give any indication as to the
condition of the cans inside, some damage to the paper was
apparent upon its arrival in Burnie; it was only the full extent
of the damage which could not be determined until the paper was
actually processed.
The question whether Caemint Food applies is determined by
the type of damage for which recovery is sought. The district
court found that the defects at issue here were not “hidden
defects which would not be detected by an external inspection.”
This is a fact finding, protected under the clearly erroneous
rule. It is not clearly erroneous. Thus, the district court
correctly concluded that Caemint Food did not apply and that the
clean bill of lading served as prima facie evidence that the
paper was delivered to the ship in good condition.
B. APPM Making Summaries
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The vessel interests argue that the district court erred in
admitting APPM computer generated making summaries2 which failed
to satisfy the requirements of Federal Rule of Evidence 1006.3
They objected to the admission of the making summaries on the
grounds that their preparation demonstrated a lack of
trustworthiness and that the underlying data had not been made
available for examination. Georgia Pacific and APPM argue that
the requirements for summary evidence under Rule 1006 do not
apply to business records admissible under Federal Rule of
Evidence 803(6).4 United States v. Sanders, 749 F.2d 195 (5th
2
APPM uses a computer to track production of paper and the
amount of paper discarded during processing by recording raw data.
A computer program then interprets the data. Print-outs of this
information were admitted at trial.
3
Federal Rule of Evidence 1006 provides: “The contents of
voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of
a chart, summary, or calculation. The originals, or duplicates,
shall be made available for examination or copying, or both, by
other parties at a reasonable time and place. The court may order
that they be produced in court.”
4
Federal Rule of Evidence 803(6) provides in part:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
(6) Records of regularly conducted activity. A memorandum,
report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near
the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or
data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness . . . .
7
Cir. 1984).
The district court has broad authority to determine the
admissibility of evidence under the business records exception,
and we review that discretion under an abuse of discretion
standard. Capital Marine Supply, Inc. v. M/V ROLAND THOMAS, II,
719 F.2d 104, 106 (5th Cir. 1983). Computer business records are
admissible if “(1) they are kept pursuant to a routine procedure
designed to assure their accuracy, (2) they are created for
motives that tend to assure their accuracy (e.g., not including
those prepared for litigation), and (3) they are not themselves
mere accumulations of hearsay.” Id.
First, the supervisor of the Finishing Department testified
as to how the data in the printouts was accumulated. The data in
the printouts is what APPM uses in its normal business to track
the progress of operations. Second, as long as the data
contained in the printouts was entered into the computer “at or
near the time” of the events recorded, the fact that the
printouts themselves may have been prepared for litigation does
not prevent them from being admissible under Rule 803(6).
Sanders, 749 F.2d at 198. Third, the data is not an accumulation
of hearsay. It consists of records of the amount of paper that
had to be discarded as unusable during processing. Thus, the
district court did not abuse its discretion in admitting the
making summaries as business records.
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C. The Amount of Recovery
The vessel interests argue that the amount of recovery
awarded by the district court was based on clearly erroneous
findings. Specifically, the vessel interests assert that the
district court failed to take into account damage to the reels
after they were unloaded from the ship. While it is possible
that there may have been additional damage to the reels once they
were in APPM’s custody, the vessel interests did not prove what
amount of the damage occurred when the reels were in their
custody as opposed to the damage that occurred when the reels
were in APPM’s custody. The purpose of COGSA is to place the
primary responsibility for the safety of cargo on the vessel, its
operators, and its owners. Associated Metals & Minerals v. M/V
ARKTIS SKY, 978 F.2d 47, 52 (2nd Cir. 1992). Thus, once the
shipper has presented a prima facie case, the carrier is liable
for all of the damage to the cargo, unless the carrier can prove
the amount of damage that was not caused by it. Blasser Bros.,
628 F.2d at 382.
The vessel interests also argue that the district court used
the wrong percentage for the amount of offset paper that is
typically discarded during processing. The district court used
the same figure for offset and xerographic paper, instead of
using the higher figure for offset paper reflected in APPM’s
records. As APPM points out, however, Georgia Pacific’s offset
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paper was already pre-sliced to standard sizes. When APPM
processes its own offset paper, it has to slice and cut the
different sizes from large rolls of paper, thus generating more
discarded paper. The xerographic paper of both Georgia Pacific
and APPM is sold only in one size, so less discarded paper is
generated during processing. The district court applied the
percentage that reflects the typical amount of xerographic paper
discarded both to Georgia Pacific’s xerographic paper and to its
pre-sliced offset paper. The use of this percentage is not
clearly erroneous.
The vessel interests contend finally that, in the absence of
any proof of market value, the invoice price should have been
used as a basis for recovery instead of the insured value. APPM
insists, however, that invoice value plus ten percent, the
insured value in this case, is a reasonable approximation of fair
market value. The district court’s use of the insured value as a
basis for recovery is not clearly erroneous.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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