Tuesday, February 01, 2005

The Case of The Stinky Cheese

Q: Why is this so funny?

A: Because I am totally immature. Poop. Heh.

LEKAS & DRIVAS, INC., Pompeian Olive Oil Corporation, and Victor Cory, doing
business as Victor Cory Company, Libelants-Appellees,
Basil GOULANDRIS, Nicholas Goulandris and Leonidas Goulandris, doing business
as 'Goulandris Brothers,' Respondents-Appellants.

When the cheese was loaded at Salonica, all 7 barrels and 67 of the cases were stowed in the after part of the No. 4 hold, and the other 241 cases in the poop, along with 704 other cases belonging to parties not in the present litigation. The judge found, 173 F.Supp. at 156, that the cheese 'had melted and spoiled due to the high temperatures experienced on the voyage,' and, id. at 179, that the poop was an improper place to stow cheese. The latter finding, which was the predicate of liability, was cast in terms of the poop's not being 'a fit and proper place for carriage of the cheese from Greece to New York via the Mediterranean-Gibraltar route * * *' The reasoning was that if the voyage had been made as contemplated, the cheese would nevertheless have spoiled; that the legal cause of that spoilage would have been the stowage in the poop; and that the vessel was therefore liable for the damage which in fact occurred.

Respondents vigorously attack the judge's conclusion that the poop was an unfit place to stow the cheese. They say that if the voyage had been made via Gibraltar as contemplated, air temperatures would have ranged between 53 degrees and 65 degrees Fahrenheit and that, although the poop had no permanent ventilators, adequate ventilation was had through an open hatch. We find it unnecessary to pass on this challenge, for reasons that will shortly appear.

[8][9][10] It cannot be disputed that the voyage of the Ioannis was affected by 'restraint of princes, rulers, or people' under § 4(2)(g) of COGSA. Indeed, there was a double restraint-- the threat of attack by an enemy government on the planned voyage through the Mediterranean and the order of the Greek Government to proceed via Suez and the Cape of Good Hope. "Restraints of princes, rulers, and peoples' covers any forcible interference with the voyage or adventure at the hands of the constituted government, or ruling power of any country, whether done by it as an enemy of the State to which the ship belongs, or not.' Carver's Carriage of Goods by Sea (10 ed.), 129. This 'restraint' altered the voyage from a four week trip of 5000 miles through the Mediterranean and North Atlantic, in cool November weather, to a trip of 13,000 miles and five months around Africa, with two crossings of the Equator. Outside temperatures repeatedly hit 100 degrees and above. Even with perfect ventilation in the poop, or with stowage elsewhere under adequate ventilation, the cheese would therefore, unless it were refrigerated, have been subject to extremely high temperatures for a period of time long enough to case it to spoil. [FN1] Whether stowage of some of the cheese in the poop was improper for the Gibraltar voyage is thus immaterial; 'if the accident would have happened without defendant's negligent act, then such is not the cause of it.' 2 Harper & James, The Law of Torts (1956) § 20.2, at p. 1114 fn. 18, and cases there cited; American Law Institute, Restatement of Torts, § 432, comment b and illustrations 1 and 2.

*Emphasis obviously added...sorry, I couldn't help it. Poop.
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