UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 98-30127
Summary Calendar
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ITOCHU INTERNATIONAL, INC.,
Plaintiff-Appellant,
versus
HAVJO MV, her engines, boilers, etc., in rem;
ET AL,
Defendants
K/S A/S HAVBULK; WESTERN BULK CARRIERS K/S, in
personam
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-3385-L)
November 27, 1998
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The Plaintiff-Appellant, Itochu International, Inc.
(“Itochu”), appeals the district court’s ruling that Defendants-
Appellees, K/S A/S Havbulk and Western Bulk Carriers K/S
*
Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under the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 5TH CIR. R. 47.5.4.
(collectively “Western Bulk”), were not liable for damages caused
to Itochu’s cargo. The district court found that the Defendants
were exempt from liability under 46 U.S.C. § 1304(2)(q) of the
Carriage of Goods by Sea Act (“COGSA”). For the following reasons,
we affirm the district court’s ruling.
Itochu was the voyage charterer and the owner of 128 bundles
of hot rolled steel plates carried aboard the M/V HAVJO from the
port of Kokkola, Finland to New Orleans. Itochu purchased the
cargo from Industrial Metals & Manufacturing, Ltd. (“IMM”), who
delivered the cargo and paid the port charges and the cost of the
loading stevedores. During the loading of the cargo at Kokkola,
Michael Belorukov, IMM’s transportation manager, and Knut
Trevellik, a port captain acting on behalf of Western Bulk, were
present. Upon arrival in New Orleans, the cargo was determined to
have sustained extensive compression damage.
Itochu filed suit against Western Bulk, seeking recovery of
costs incurred to recondition the cargo. On the basis of
depositions, stipulations, and joint exhibits, the district court
ruled in favor of Western Bulk. It found that the damaged cargo
was caused by the stevedores' loading of the cargo with misaligned,
randomly positioned dunnage boards. Because the stevedores were
not employed or controlled by Western Bulk, the district court
found that Western Bulk was not at fault for the damaged cargo and
hence was entitled to a defense under section 1304(2)(q) of COGSA.
On appeal, Itochu contends that the district court erred
because (1) the fact that a carrier's duty of care is non-delegable
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prevents it from invoking the section 1304(2)(q) defense, and (2)
even if a carrier could invoke the section 1304(2)(q) defense to
such a non-delegable duty, Western Bulk failed to prove that the
damage to Itochu's cargo occurred through no fault of its own.
When reviewing a trial court’s judgment in an admiralty case,
sitting without a jury, the district court's findings of fact are
subject to the clearly erroneous standard of review, while
questions of law are subject to de novo review. See Mendes Junior
Int'l Co. v. M/V Sokai Maru, 43 F.3d 153, 155 (5th Cir. 1995). The
fact that, in this case, no oral testimony was heard does not
affect the standard of review. See Pacific Employers Ins. Co. v.
M/V Gloria, 767 F.2d 229, 235 (5th Cir. 1985).
COGSA was created to void the inclusion of “overreaching
clauses” in bills of lading that would unreasonably limit the
carrier’s liability. Tubacex v. M/V Risan, 45 F.3d 951, 955 (5th
Cir. 1995). Under COGSA, both parties engage in burden shifting
pursuant to 46 U.S.C. §§ 1303-1304. See id. at 954. Once the
shipper presents a prima facie case, the burden shifts to the
carrier to prove either that it used due diligence to prevent the
damage or that it is entitled to one of the defenses enumerated in
section 1304(2) of COGSA. See id. One such defense is the
“catchall exception in section 1304(2)(q).” Id. Section
1304(2)(q) provides:
Neither the carrier nor the ship shall be responsible for
loss or damage arising or resulting from . . . [a]ny
other cause arising 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
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privity of the carrier nor the fault or neglect of the
agents or servants of the carrier contributed to the loss
or damage.
46 U.S.C. §1304(2)(q).
In the instant case, the district court found that Itochu’s
cargo damage resulted without the fault or privity of Western Bulk
and thus ruled that Western Bulk had made out its section
1304(2)(q) defense. Itochu argues that Western Bulk is not
entitled to invoke the section 1304(2)(q) defense, because its duty
of care under COGSA is nondelegable. It is true that some courts
have held that COGSA imposes on carriers a nondelegable duty to
properly and carefully load, handle, stow, carry, keep, care for,
and discharge the goods carried. See Nichimen Co. v. M.V. Farland,
462 F.2d 319, 330 (2d Cir. 1972). We have held, however, that
there is “no conflict in the statute with applying [section
1304(2)(q)] . . . to the nondelegable duties of the carrier.”
Tubacex, 45 F.3d at 955. In other words, the fact that a carrier's
duties are nondelegable does not eviscerate defenses to liability
that are “specifically extended to carriers” under COGSA. Id. The
Second Circuit reached a similar conclusion in Associated Metals &
Minerals Corp. v. M/V Arktis Sky, 978 F.2d 47 (2d Cir. 1992). It
held that even though the carrier had a nondelegable duty to
properly load and stow the cargo, the carrier may nonetheless
“exonerate its responsibility by carrying its burden of proof that
the damage did not occur because of its own acts.” Id. at 52
Itochu further argues that even if Western Bulk could invoke
the section 1304(2)(q) defense, it failed to prove that it was free
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from fault. Itochu contends that Mr. Trevellik, who was present at
the loading on behalf of Western Bulk, was partially responsible
for the damaged cargo. The district court found, however, that Mr.
Trevellik's duties extended solely to insuring the seaworthiness of
the vessel, not the condition of the cargo. This finding is
supported by the evidence before the district court.
For the foregoing reasons, we conclude that the district court
did not err in finding that the Defendants proved their section
1304(2)(q) defense under COGSA. The district court’s judgment is
AFFIRMED.
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