Sun Co. Inc. v. S.S. Overseas Arctic

United States Court of Appeals,

Fifth Circuit.

No. 93-3400.

SUN COMPANY INC. and Sun Oil Trading Company, Plaintiffs-
Appellants,

v.

S.S. OVERSEAS ARCTIC, Overseas Bulktank Corporation, and BP Oil
Shipping Co., U.S.A., Defendants-Appellees.

Aug. 8, 1994.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before JOHNSON, BARKSDALE, and DeMOSS, Circuit Judges.

JOHNSON, Circuit Judge:

This case calls on the Court to determine whether the M/T

OVERSEAS ARCTIC, Overseas Bulktank Corporation, and BP Oil Shipping

Company (collectively referred to as "Carriers") breached their

duty to properly and carefully load, carry, care for, and discharge

high-temperature fuel oil1 under the Carriage of Goods by Sea Act

("COGSA") during a voyage from Guayanilla, Puerto Rico, to the

ports of Good Hope and St. Rose, Louisiana. The district court

found that the carriers did not violate said duties. This Court

agrees and therefore affirms.

I. Facts and Procedural History

On March 25, 1991, Sun Oil Trading Company ("Sun") contracted

to sell Clarendon Marketing, Inc., 300,000 barrels of straight run

1
High-temperature fuel oil solidifies or congeals at high
temperatures and often requires heat to remain in a liquid state.

1
fuel oil for $18.50 per barrel. To carry out this arrangement, Sun

entered a Tanker Voyage Charter Party with the Carriers. In this

charter party, Sun agreed to charter one of the Carrier's vessels.

The Carriers, in turn, agreed to transport Sun's straight run fuel

oil from Guayanilla, Puerto Rico, to two ports in Louisiana—Good

Hope and St. Rose. The Carriers also covenanted to provide a

vessel which could heat the cargo up to a maximum temperature of

135 degrees and maintain that temperature.2 Anticipating that the

Carriers would only be required to maintain the temperature of the

fuel, as opposed to increasing the temperature, the parties deleted

the contract's penalty for failing to increase the cargo's

temperature.3

Consistent with this expectation, the charter party's Maraven

Cargo Heating Clause expressly provided that "unless otherwise

requested by Charterer, Vessel shall only be required to maintain

2
All temperatures referred to herein are measured in
Fahrenheit.
3
The Maraven Cargo Heating Clause in the original contract
placed upon the Carriers a duty to increase and maintain the
temperature of the cargo to a maximum of 135 degrees if ordered
to do so by Sun. The contract also provided a penalty for the
Carriers' failure to properly heat the cargo. The penalty
portion of the contract stated that if the vessel "fails to
maintain the loaded temperature or to increase and maintain the
temperature of the cargo, as requested by Charterer, Charterer
shall have the option to hold Vessel off berth and/or to suspend
discharging all until the cargo is properly heated, all time and
expense in connection with the foregoing being for [Vessel]
Owner's account." Exh. 2 (emphasis added). Although the parties
left undisturbed the provision which required the vessel to
increase the temperature of the fuel oil if so ordered, the
parties deleted the italicized portion of the Heating Clause,
providing a penalty only for the vessel's failure to maintain the
loaded temperature.

2
the cargo at the temperature loaded ... throughout the voyage and

the entire discharge." Assuming that Sun—the charterer—would not

order the chartered vessel to increase the temperature of cargo,

the Carriers designated the M/T OVERSEAS ARCTIC as the vessel to

transport Sun's cargo.4

On March 27, 1991, the OVERSEAS ARCTIC arrived at the loading

port at Guayanilla, Puerto Rico. It commenced loading Sun's

straight run fuel oil on the following day. Richard Beza, the

captain of the OVERSEAS ARCTIC, complained to the port terminal

that the loading of the cargo was taking much longer than

anticipated. In a letter of protest to the terminal, the captain

contended that the delay was due to the low temperature of the

fuel. Unbeknownst to Captain Beza, the vast majority of the cargo

was loaded at temperatures lower than the cargo's pour point.5

Although the captain was displeased with the slow rate of the

loading, he testified that neither the loading nor the temperature

of the cargo raised concerns in his mind, for the fuel was

4
Although the OVERSEAS ARCTIC could maintain the temperature
of the cargo up to 135 degrees, it could not increase the
temperature thereof.
5
The pour point is the temperature at which liquid begins to
solidify, such that it can no longer be poured. In this case,
the pour point of the fuel oil was 95 degrees. Captain Beza
explained during trial that 218,000 of the 330,000 barrels loaded
on the vessel came aboard at temperatures ranging between 86 and
89.9 degrees. One third of the oil had a load temperature which
fluctuated between 101 and 108.3 degrees. The temperature of the
remainder of the fuel, just 3000 barrels, was 115 degrees. This
cargo was combined on the ship, resulting in an average
temperature of 93.6 degrees, a temperature lower than the pour
point.

3
obviously fluid enough to be pumped on board the vessel.6 He

nevertheless sent a telex to Sun, informing the company that the

temperature of the cargo coming aboard was between eighty nine and

ninety degrees. He advised Sun that the vessel was "putting heat

on cargo immediately" and that it would "maintain load

temperature."

After three days of loading, the OVERSEAS ARCTIC departed

Guayanilla and headed for the Louisiana ports. In its voyage

orders to the OVERSEAS ARCTIC, Sun directed Captain Beza only to

maintain the loaded temperature of the fuel.7 Sun did not alter

this order at any time throughout the OVERSEAS ARCTIC's voyage.

Captain Beza claimed at trial that the Carriers complied with Sun's

orders. In fact, he testified that the vessel not only maintained

the temperature in accordance with industry standards, but the

vessel actually increased the temperature of the fuel in some of

the tanks. Indeed, the average temperature of the fuel at

discharge was 89.9 degrees, three-tenths of a degree higher than

the loaded temperature. Nevertheless, as the ship moved from the

warmer Caribbean waters—which, at that time, were eighty degrees—to

cooler Mississippi River waters—which were fifty eight degrees—the

6
Captain Beza testified that the industry standard required
that the fuel be loaded at 20 to 30 degrees above the pour point.
Not knowing the actual pour point of the cargo, Captain Beza had
no reason to believe that the fuel's temperature failed to meet
this standard.
7
Captain Beza testified that he did not know that Sun
expected the vessel to have heating capabilities. As was
customary, the Captain never received a copy of the charter party
which, in this case, was the only document which stated that the
ship was to have such capabilities.

4
cargo located closest to the skin of the single-skin vessel began

to congeal.

Upon reaching the first discharge port in Good Hope,

Louisiana, Captain Beza recognized that the ship would have

problems unloading the cargo. He therefore informed BP's shore

captain, Captain Maslen, of the problems. Captain Maslen contacted

Sun and informed Sun that it needed to have barges immediately

available at the second discharge port. Captain Maslen explained

that any delay could cause further cooling and solidification of

the fuel. The request went unheeded. The OVERSEAS ARCTIC was

required to wait more than thirty-four hours before it was allowed

to begin discharge operations. The low load temperatures, the

cooler Mississippi waters, and the delay in discharge operations

caused 8734 barrels of fuel oil to solidify and therefore remain on

board ("ROB").8 Sun and the Carriers unsuccessfully sought ways to

discharge the ROB from the ship. After meeting failure at every

turn, Sun released the OVERSEAS ARCTIC to go to its next

destination.

The vessel traveled to Coatzacoalcos, Mexico, where it loaded

crude oil for Petrocanada Products. The crude oil acted as a

solvent and melted the ROB. When it arrived at its discharge port

in Portland, Maine, the OVERSEAS ARCTIC unloaded not only

Petrocanada's cargo, but also the ROB from Sun's voyage. The

8
Sun attempted at trial to prove that 10,444 barrels of the
cargo remained on board. However, we agree with the district
court that the ship retained just 8734 barrels of the fuel oil.
Notably, Sun's representative at the discharge ports confirmed
that the ROB consisted of only 8734 barrels of the fuel oil.

5
Carriers did not charge Petrocanada for the excess cargo. Hence,

the ROB inured totally to Petrocanada's benefit.

Sun later brought this action against the M/T OVERSEAS ARCTIC,

Overseas Bulktank Corporation, and BP Oil Shipping Co. for the loss

of its cargo. After a bench trial, the district court ruled that

Sun, having failed to prove that the cargo was in good order when

loaded, had failed to make out its prima facie case. The district

court further held that Sun had breached its duty to load the

high-temperature fuel oil at a proper temperature. Concluding that

the Carriers had fully complied with their obligations to Sun, the

court entered judgment in favor of the Carriers and against Sun.

Sun appeals.

II. Discussion

A. Carriage of Goods by Sea Act

The parties initially dispute whether rules applicable to

private carriage contracts or provisions outlined in the Carriage

of Goods by Sea Act ("COGSA") control in this action. By its own

terms, COGSA applies only if the bill of lading or another similar

document of title evidences the contract for the carriage of goods

by sea. 46 U.S.C. § 1300; Shell Oil Co. v. M/T GILDA, 790 F.2d

1209, 1212 (5th Cir.1986). If one charters an entire vessel,

however, the charter party controls, not the bill of lading. Id.

at 1212. Hence, in that situation, COGSA is inapplicable.

Nevertheless, parties may incorporate the terms of COGSA into their

charter party provisions. When parties so do, COGSA controls, but

only to the extent provided in the charter party. Id. If parties

6
therefore incorporate COGSA provisions, in their entirety, into the

terms of their private carriage contract, COGSA will govern the

entire transaction.

In this case, as in Shell Oil, the parties evidenced their

intent that COGSA govern the entirety of their venture in the

charter party's Clause Paramount. That clause, in pertinent part,

reads as follows: "This Bill of Lading shall have effect subject

to the provisions of the Carriage of Goods by Sea Acts of the

United States."9 In view of the charter party's full incorporation

of COGSA in this case, we hold that COGSA controls here.

B. Applicability of COGSA

As this Court so appropriately declared in Nitram, Inc. v.

Cretan Life, "[t]o enforce their respective rights under [COGSA],

9
The Clause Paramount in this case is almost identical to
the Clause Paramount adopted by the parties in Shell Oil. The
entire clause in the charter party under review here provides the
following:

This Bill of Lading shall have effect subject to the
provisions of the Carriage of Goods by Sea Acts of the
United States, approved April 16, 1936, except that if
this Bill of Lading is issued at a place where any
other Act, ordinance or legislation gives statutory
effect to the international Convention for the
Unification of Certain Rules relating to Bills of
Lading at Brussels, August 1924, then this Bill of
Lading shall have effect, subject to the provisions of
such Act, ordinance or legislation. The applicable
Act, ordinance or legislation (hereinafter called the
"Act") shall be deemed to be incorporated herein and
nothing herein contained shall be deemed a surrender by
the Owner of any of its rights or immunities or an
increase of any of its responsibilities or liabilities
under the Act. If any term of this Bill of Lading be
repugnant to the Act to any extent, such term shall be
void to the extent but no further.

See Shell Oil, 790 F.2d at 1212 n. 3.

7
litigants must engage in the ping-pong game of burden-shifting

mandated" by sections 1303 and 1304 of the Act. 599 F.2d 1359,

1373 (5th Cir.1979). To present a prima facie case under COGSA for

the loss of cargo, a charterer must initially prove that the

carrier failed to deliver all of the goods initially loaded. See

Tenneco Resins, Inc. v. Davy International., AG, 881 F.2d 211, 213

(5th Cir.1989); Horn v. Cia de Navegacion Fruco, S.A., 404 F.2d

422, 435 (5th Cir.1968). The charterer's proffer of the bill of

lading creates the rebuttable presumption that all of the cargo

listed in the document was, in fact, loaded upon the carrier's

vessel in the condition therein described. Blasser Bros. v.

Northern Pan-American Line, 628 F.2d 376, 381 (5th Cir.1980).

Once the charterer presents its prima facie case, the burden

shifts to the carrier to prove either that it exercised due

diligence in preventing the loss of the cargo or to prove that the

loss was caused by at least one of the exceptions set out in

section 1304(2) of COGSA. Tenneco Resins, Inc., 881 F.2d at 213.

If the carrier successfully rebuts the charterer's prima facie

case, the burden returns to the charterer to prove that the

carrier's negligence was at least a concurring cause of the loss.

Id. If the charterer meets this challenge, the carrier must

finally satisfy the heavy burden of proving the percentage of loss

due to its negligence and the percentage of loss due to the

charterer's negligence. Id. If the carrier fails to prove the

proportionate fault of each of the parties, the carrier becomes

liable for the entire loss. Id.

8
1. Sun's Prima Facie Case

Sun proffered the Tanker Bill of Lading, signed by Captain

Beza, which showed that 329,686.27 barrels of straight run fuel oil

was loaded upon the OVERSEAS ARCTIC in Guayanilla, Puerto Rico.

According to Caleb Brett, Sun's representative at the discharge

ports, the vessel delivered all but 8734 barrels of fuel at the

Good Hope, Louisiana, and St. Rose, Louisiana, ports. The

tendering of the bill of lading, combined with the evidence that

the Carriers failed to discharge all of the 329,686.27 barrels of

the fuel sufficiently established Sun's prima facie case.10

2. Statutory Exception

The burden therefore shifted to the Carriers to prove that

they either acted with due diligence or that one of the statutory

exceptions in section 1304(2) applies. The Carriers charged, and

the district court found, that because the fuel oil was not loaded

at twenty to thirty degrees above its pour point, two provisions in

section 1304(2) absolved the Carriers of liability. The first

provision argued by the Carriers is subsection (m), which provides

an exception to a carrier's liability if the loss was caused by an

"inherent defect, quality, or vice of the goods." 46 U.S.C. §

10
The district court therefore erred in ruling that Sun
failed to make out its prima facie case. This Court has made
clear that the charterer proves its prima facie case when it
presents a bill of lading which shows that the carrier accepted
the goods in the condition shown therein. Blasser Bros., 628
F.2d at 381; Horn, 404 F.2d at 435; see C. Itoh and Co. v. M/V
HANS LEONHARDT, 719 F.Supp. 479, 503 (E.D.La.1989) (noting that
the Fifth Circuit has never required the charterer to disprove
the existence of an inherent defect in the cargo as part of its
prima facie case).

9
1304(2)(m). The second provision proffered by the Carriers,

subsection (i), excuses carriers from liability for the loss of

cargo if the loss was caused by the "[a]ct or omission of the

shipper or owner of the goods, his agent or representative."

Although we agree that the latter provision exonerates the Carriers

from any liability, we disagree that the former provision is

applicable in the case sub judice.

a. Inherent Defect

By its clearly expressed terms, subsection (m) applies only

when the defect, quality, or vice is inherent in the cargo. As

this Court explained in Quaker Oats Co. v. M/V Torvanger, to prove

that the inherent defect provision applies, the carrier must show

that some defect, quality, or vice existed within the cargo,

itself. 734 F.2d 238, 241 n. 3 (5th Cir.1984). Consistent with

our construction of this provision, every carrier in every section

1304(2)(m) case argued before this Court, prior to this case, has

contended that a condition inherent in or on the goods at issue

caused the loss or damage in question.

In Shell Oil, the carriers complained that the fuel oil there

contained excessive amounts of paraffin which caused the cargo to

become extremely viscous and, hence, unpumpable. 790 F.2d at 1213.

The carriers in Quaker Oats contended that a peroxide formation

within the cargo, tetrahydrofuran, was an inherent vice. 734 F.2d

at 241. Similarly, in Harbert International Establishment v. Power

Shipping, (5th Cir.1981) the carriers asserted that pipes which

they transported contained defective seal coats. 635 F.2d 370, 374

10
(5th Cir.1981). Finally, in this Court's only other section

1304(2)(m) case, Horn v. Cia de Navegacion Fruco S.A., the carriers

argued that bananas which they transported had been loaded in an

overly ripe condition. 404 F.2d at 435.

These cases are all readily distinguishable from the facts of

this case. The temperature of the fuel oil transported by the

OVERSEAS ARCTIC in this case did not constitute an inherent defect.

A defect—perhaps; however, the defect, unlike those in the

above-reviewed cases, was due to external, as opposed to internal

conditions. A simple change in the external conditions could have

easily remedied the fuel oil's temperature problems. Thus, based

upon the explicit terms of subsection (m), as well as our

construction of that provision in Quaker Oats, this Court finds

that the inherent defect exception is unavailable to the Carriers

here.

b. Sun's Act or Omission

The district court also found that Sun's failure to load the

cargo at temperatures which reached at least twenty to thirty

degrees above the pour point caused the loss of the fuel. We

agree. Witnesses for both Sun and the Carriers testified that the

industry standard required high-temperature fuel oil to be loaded

twenty to thirty degrees above the pour point.11 These witnesses

explained that the industry requires such oil to be loaded at high

temperatures because transportation in oft-times cooler waters will

11
In Tenneco Resins, Inc., we recognized that industry
standards are appropriate guides in COGSA cases. See Tenneco
Resins, Inc., 881 F.2d at 213-14.

11
cause a decrease in the temperature of at least some of the oil.

In the case sub judice, Sun failed to meet this industry

standard. There is no dispute that the average temperature of the

cargo in this case, when loaded, was below the pour point. Sun had

the duty to ensure that fuel oil was pumped on board at a

sufficient temperature.12 Its failure to perform this obligation,

without doubt, caused the ROB. The exception set forth in section

1304(2)(i) therefore applies in this case.

3. Carrier Negligence

Because the Carriers proved that section 1304(2)(i) applies,

the burden returned to Sun to prove that the Carriers' negligence

at least partially caused the loss of the cargo. Attempting to

satisfy this burden, Sun contends that even if the load temperature

was inadequate, the Carriers' provided an unseaworthy vessel. The

unseaworthiness of the vessel, according to Sun, caused the loss of

its cargo. Sun additionally avers that the Carriers failed to

maintain the loaded temperature of the fuel, as required by the

charter party and the voyage orders. Finally, Sun argues that the

Carriers failed to exercise due diligence to ensure that the cargo

was properly heated. We find no merit in any of Sun's contentions.

a. Unseaworthiness

12
Although Sun claims that it had no control over the shore
facility which loaded the oil, we note that that facility acted
as Sun's agent, since it loaded the oil at Sun's behest. See
Sigri Carbon Corp. v. Lykes Bros. Steamship Co., Inc., 655
F.Supp. 1435, 1440 (W.D.Ky.1987) (ruling that when the charterer
hires a stevedore to load a ship, any damage due to the loading
is a result of an act or omission of the shipper, his agent, or
representative).

12
 Sun first argues that the OVERSEAS ARCTIC was unseaworthy

because it could not raise the temperature of the cargo to 135

degrees as required in the charter party. The Carriers conceded

that such was the case. However, there is no dispute that Sun, at

no time during the voyage, requested that the temperature be

raised. To the contrary, it specifically ordered the vessel to

maintain the loaded temperature.13 Had Sun ordered the Carriers to

increase the temperature during the voyage, we would agree with

Sun's argument here.14 However, to carry its burden at this point,

Sun must prove that the unseaworthy condition in question not only

13
Even Sun's coordinator for loading and discharging
operations, Susan O'Connor, testified that this order meant
exactly what it said. The Carriers questioned Ms. O'Connor on
the meaning of this instruction:

Q. Now you will notice in the voyage orders, those are
Sun voyage orders, under "heating," "Vessel maintain
loaded temperature up to 135 degrees Fahrenheit." That
means that whatever the loading temperature was, the
vessel would keep it at that temperature; is that
correct?

A. Yes.

Q. So, if the cargo came aboard at 89 degrees, the
vessel under those instructions would keep it at 89
degrees?

A. Yes. That's right.

Q. If it came aboard at 90 degrees, they would keep it
at 90 degrees?

A. Yes.
14
The COGSA provision most applicable in this argument is
not the seaworthiness provision, but section 1303(1)(c) which
places upon carriers the affirmative duty to make all "parts of
the ship in which goods are carried[ ] fit and safe for their
reception, carriage, and preservation." 46 U.S.C. § 1303(1)(c).

13
existed, but actually caused the loss of the cargo. See Bruszewski

v. Isthmian S.S. Co., 66 F.Supp. 210 (D.C.Pa.), aff'd, 163 F.2d 720

(3d Cir.1947), cert. denied, 333 U.S. 828, 68 S.Ct. 451, 92 L.Ed.

1113 (1948). This, Sun has not done. By failing to order the

Carriers to increase the temperature of the cargo, Sun never

provided the Carriers the opportunity to breach their duty to

provide a seaworthy vessel and to ensure that the vessel's storage

tanks could properly preserve the fuel oil.15 Sun's seaworthiness

claim therefore fails.

b. Proper Maintenance of the Temperature

Sun next complains that the Carriers did not maintain the

temperature of the oil. This contention is logical: If some of

the oil cooled to such an extent that it solidified, the Carriers

clearly failed to maintain the temperature of that portion of the

oil. Captain Beza, in so many words, admitted that such was the

case. However, the captain testified that an order to maintain the

loaded temperature does not require vessels to maintain every

square inch of the cargo at one temperature. According to Captain

Beza, a "maintain heat" order requires vessels to maintain the

average temperature of their cargo. Captain Beza testified that

his interpretation of the order was consistent with the standards

in the high-temperature fuel oil transportation industry. Sun

15
Averring that the law does not require one to do a vain
thing, Sun argues that it would have been vain to order the ship
to raise the temperature. This axiom is not helpful to Sun's
case. The basic premise underlying this axiom is that one who
fails to act must know that his act would be vain. One who fails
to act out of ignorance or neglect may not take advantage of this
principle.

14
proffered no testimony or evidence which contradicted the Carriers'

contention that, based upon industry standards, the vessel complied

with Sun's orders.16 Sun's argument that the Carriers failed to

maintain the load temperature is therefore not well taken.

c. Special Knowledge Requirements

Sun finally argues that the Carriers had a duty under COGSA

to know the special characteristics and heating requirements of the

cargo and to properly carry, care for, and discharge the cargo.

Sun is only partially correct. COGSA does, indeed, expressly

require carriers to "properly and carefully load, handle, stow,

carry, keep, care for, and discharge the goods carried." 46 U.S.C.

§ 1303(2); Shell Oil Co., 790 F.2d at 1213. However, this Circuit

has rejected the argument that carriers have a legal duty to learn

the special needs of their cargo. Tenneco Resins, Inc., 881 F.2d

at 214. To the contrary, we have ruled that the charterer "has an

obligation to inform the carrier of the cargo's special

requirements." Id. (emphasis added). We have determined that

this view properly places the burden to discern cargo's special

stowage needs upon the party which will most likely know or have

16
Our review of the record reveals that the Carriers not
only maintained the average temperature of the cargo, but they
actually increased the temperature of the fuel oil by
three-tenths of one percent. The record also shows that Caleb
Brett, Sun's representative at the discharge port, agreed that
the Carriers had accomplished Sun's heating requirements during
the voyage. During a phone call placed after the OVERSEAS ARCTIC
left the first Louisiana port, a Caleb Brett employee informed
Sun's discharge coordinator, Susan O'Connor, that the Carriers
had increased the temperature of the cargo. Caleb Brett's
analysis of the situation confirms Captain Beza's testimony that
Sun's "maintain-heat" order merely required the vessel to
maintain the average temperature of the cargo.

15
access to knowledge of such needs. Id. (quoting O'Connell

Machinery Co. v. M/V Americana, 797 F.2d 1130, 1134 (2d Cir.1986)).

Consistent with our Tenneco Resins, Inc., decision, Captain

Beza testified that he expected Sun to know the pour point of the

fuel oil and ensure that it came aboard at the proper temperature.

Although Captain Beza informed Sun of the load temperature prior to

departing Guayanilla,17 Sun, in the best position to know the pour

point of the cargo, did not respond. Sun neither informed the

Carriers of the pour point nor, more importantly, instructed the

Carriers to increase the temperature of the cargo. Even if Captain

Beza had recognized a problem with the temperature of the cargo,

and even if the OVERSEAS ARCTIC had possessed heating capabilities,

Captain Beza could have discharged his duties in no different

manner, for he was under express orders to maintain, not increase,

the temperature of the oil. We will not penalize the Carriers for

following Sun's specific instructions.

III. Conclusion

The district court erred in holding that Sun failed to present

a prima facie case. However, its ultimate decision—that Sun

breached its duty to ensure that the temperature of the cargo

exceeded that pour point by twenty to thirty degrees during loading

and that the breach of that duty caused Sun's loss—was correct.

Because Sun did not prove that any negligence of the Carriers

17
Captain Beza testified that he informed Sun of the
temperature and told Sun that the OVERSEAS ARCTIC would
immediately apply heat to the cargo simply to let Sun know that
he was following the voyage orders.

16
contributed to the loss, this Court AFFIRMS.

17