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HARTFORD FIRE INS. CO. v. CALMAR S.S. CORP.

November 13, 1975

HARTFORD FIRE INSURANCE COMPANY and Weyerhaeuser Company, Plaintiffs,
v.
CALMAR STEAMSHIP CORPORATION, SS PORTMAR and Jones Oregon Stevedore Company, Defendants. HARTFORD FIRE INSURANCE COMPANY and Weyerhaeuser Company, Plaintiffs, v. CALMAR STEAMSHIP CORPORATION, SS PORTMAR and Independent Stevedoring Company, Defendants



The opinion of the court was delivered by: BEEKS

 Two separate but similar losses of deck-stowed wood products generated these consolidated cases. Prior to each loss plaintiff Weyerhaeuser Company ("Weyerhaeuser") time chartered the M/S PORTMAR from its owner and operator, defendant Calmar Steamship Corporation ("Calmar"), for the intercoastal carriage of wood products from Coos Bay, Oregon, to various east coast ports. Plaintiff Hartford Fire Insurance Company is the insurer of the lost cargo in both instances, and its interest in these suits is derivative, arising out of its subrogation agreement with Weyerhaeuser. The stevedoring preceding each of the voyages was performed by defendants Jones Oregon Stevedoring Company ("Jones") and Independent Stevedore Company ("Independent"), respectively, each of whom was employed by Weyerhaeuser for that purpose.

 The first loss (Cause No. 317-73C2) occurred off the Farallon Islands on April 29, 1972, at 1047 hours when the PORTMAR was approximately 23 1/2 hours out of Coos Bay en route to the east coast via the Panama Canal. Said loss consisted of a quantity of lumber stowed on deck at #2 Hatch which was lost over the port side as certain chain lashings used to secure the deck cargo parted. This voyage will be referred to as "#1".

 The second loss occurred off Bodega Head on March 11, 1973, at 1233 hours, an uncanny replication of the first loss. On this occasion the PORTMAR was about 22 hours out of Coos Bay when the deck lashings parted with the resulting immersion and loss over the port side of a quantity of both lumber and plywood which had been stowed on deck at #2 and #3 Hatches. This voyage will be denoted "#2".

 Plaintiffs seek to fix liability on Calmar and Jones with respect to the first loss and Calmar and Independent with respect to the second loss for the value of the lost cargo and the costs attending restowage after each loss. Calmar counterclaims for various particulars including the cost of repairs to the PORTMAR necessitated by the two mishaps, for customs house brokerage fees incurred on #1, and for monies allegedly due and owing under the #1 charter. The obligations, performance and liabilities of each of the parties will be considered in turn.

 TIME CHARTER AGREEMENT

 Weyerhaeuser and Calmar memorialized each charter agreement with a standard government time charter form incorporating numerous modifications reflecting the peculiar terms of their arrangement. Pertinent portions of said agreement follow:

 
. . .
 
2. . . .
 
Charterers are to provide necessary dunnage and shifting boards, also any extra fittings requisite for a special trade or unusual cargo, but owners to allow them the use of any dunnage and shifting boards already aboard vessel.
 
. . .
 
8. That the Captain shall prosecute his voyages with the utmost dispatch, and shall render all customary assistance with ship's crew and boats. The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, trim and discharge the cargo at their risk and expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate's or Tally Clerk's receipts.
 
. . .
 
24. It is also mutually agreed that this Charter is subject to all the terms and provisions of and all the exemptions from liability contained in the Act of Congress of the United States approved on the 13th day of February, 1893, and entitled "An Act relating to Navigation of Vessels, etc.," in respect of all cargo shipped under this charter to or from the United States of America. It is further ...

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