Opinion
Civ. No. 97-3694, C/W 98-848, SECTION "T" (5).
August 29, 2000.
This cause came before the Court for a bench trial on March 27, 2000. The plaintiff, J. D. Fields Company, Inc. ("J. D. Fields"), sued the defendant, American Gulf Lines, Inc. ("American Gulf"), in personam, and Barge CMD-1, her Tackle, Equipment, etc., in rem, asserting a claim for damages arising out of an alleged breach of contract.
The Court, having heard the testimony at trial, having considered the record, the evidence, the memoranda submitted by the parties, the law and applicable jurisprudence, now makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
1. The plaintiff, J. D. Fields, filed suit against the defendants, American Gulf, in personam, and Barge CMD-1, in rem, under docket number 98-848, on March 17, 1998, and said suit was originally allotted to Section "C" of this Court.
2. The complaint asserted a claim of breach of a maritime contract of carriage or affreightment thus giving rise to a maritime lien in rem against the Barge CMD-1 and an in personam action against American Gulf for the damages incurred.
3. Upon learning that this matter was related to civil action 97-3694 entitled "J. D. Fields Company, Inc. v. Tug Elizabeth S, et al," a transfer to Section "T" was ordered for possible consolidation of the two related matters.
4. Civil Actions 97-3694 and 98-848 were consolidated by Order of this Court on July 16, 1998.
5. The original complaint filed in Civil Action 98-848 does not allege joint, several or in solido liability between American Gulf and any other named defendant in Civil Action 97-3694. Furthermore, plaintiff did not file an amended complaint to assert a claim for solidary liability.
6. Moreover, the Final Pre-Trial Order, submitted by the parties and thereafter made an Order of this Court, in no way suggests that American Gulf should be held liable jointly, severally, or in solido with any defendant named in the consolidated matter.
7. J. D. Fields is in the business of retail sales of steel construction material. Pursuant to a sale of steel beams made to a construction contractor, KKZ, delivery was required to be made in San Juan, Puerto Rico.
8. J. D. Fields contacted American Gulf about carriage of the cargo from New Orleans, Louisiana, to San Juan, Puerto Rico.
9. American Gulf, through its Vice President of Operations, Cynthia Webb, issued a Booking Note as carrier providing for carriage of the steel from "LOADING PORT: Alabo Street Wharf, New Orleans, LA. . . . DISCHARGING PORT: Public Dock to be named, San Juan, Puerto Rico. . . . FREIGHT RATE: $64.00 per metric ton or $85,611.52. . . . SPECIAL TERMS: Full Liner Terms." (Exhibit 2b). The fax coversheet attached to the Booking Note stated that American Gulf anticipated that the CMD-1 would be in New Orleans on October 17, 1997, and would load grain around the 21st "or they still may decide to carry your cargo with other cargo on a deck barge." (Exhibit 2a).
10. J. D. Fields forwarded a Bill of Lading form to American Gulf's representative, Albert Westerman, confirming the terms of carriage. (Exhibit 23b).
11. The steel was brought to American Gulf by barge, where American Gulf accepted delivery of the steel and transferred the steel from the barge to the Alabo Street Wharf for purpose of loading the steel aboard the seagoing barge CMD-1 for carriage to Puerto Rico.
12. American Gulf began loading the steel beams on the CMD-1 barge. The stevedores, Maritrend, however, were directed by Patrick Bosetta, President and sole owner of American Gulf, to remove the partially-loaded steel from the CMD-1 because the CMD-1 had a capacity of 19,000 metric tons and the entire shipment of steel could not fit with the other cargo already loaded. The steel was removed and replaced on the Alabo Street Wharf. The CMD-1 then departed for Puerto Rico on October 30, 1997, without J. D. Fields' cargo.
13. On November 3, 1997, Jack Lemp of J. D. Fields first learned that the steel remained on the Alabo Street Wharf and could not be shipped by American Gulf until the CMD-1 returned from Puerto Rico in 30-40 days.
14. J. D. Fields began to search for other alternatives for the shipment of the steel beams.
15. A second contract of carriage was entered into between J. D. Fields and Caribbean Workships, Ltd. This second shipping arrangement was likewise unable to be performed which was made the subject matter of the consolidated action 97-3694. J. D. Fields obtained a judgment against two of the defendants named in civil action 97-3694 as a result of the breach of this second contract of carriage.
16. J. D. Fields then arranged a third contract of carriage for shipment of the steel by Caribe USA out of Mobile, Alabama, to San Juan, Puerto Rico, on December 4, 1997.
17. The items of damage awarded to J. D. Fields in the December 17, 1998 Judgment against Caribbean Workships, Ltd. and Steigler Shipping Company, Inc., jointly, severally and in solido, in the amount of $201,979.91, together with interest from date of judicial demand and costs of the proceedings referred to in Findings of Fact Number 15 included:
Freight and Insurance Costs to Steigler for carriage of the cargo to Puerto Rico $74,741.74
Cargo insurance on Barge LaPlace for the voyage $1,900.00 (Exhibit 18)
Cargo insurance premium for second voyage $3,658.73 $1,758.73 (Exhibit 28)
Cost of loading steel onto Barge LaPlace and Wharfage $13,056.81 (Exhibit 15)
Cost of lashing cargo on board Barge LaPlace November 7, 1997 $6,663.48 (Exhibit 16)
Services and supplies paid for Barge LaPlace fleeting at Channel Shipyard November 7-26, 1997, and payment required by Channel Shipyard to release the cargo $9,364.20 (Exhibit 17)
Wharfage to transfer steel from Barge LaPlace to Barge ACBL-3004 $530.00 (Exhibit 29)
Survey of transfer of steel from Barge LaPlace to Barge ACBL-3004 for movement to Mobile November 27-28, 1997 $1,326.88 (Exhibit 20)
Cost of transporting steel from New Orleans to Mobile $10,845.00 (Exhibit 19)
Survey of steel upon loading at Mobile $250.00 (Exhibit 21)
Extra freights paid for carriage of cargo from Mobile to Puerto Rico $85,727.00 (Exhibit 10)
Cost of five beams lost while in custody of Caribbean Workships, Ltd. and Barge LaPlace $10,070.63 (Exhibit 22)
Cost of shipping five replacement beams to Puerto Rico $1,732.30
Lost Commissions $58,754.88
18. J. D. Fields is presently seeking the recovery of the items listed above in bold, with the following exceptions:
(1) while only $1,758.73 was awarded previously for the Cargo insurance premium, the full $3,658.73 is being sought herein (Exhibit 28)
(2) the plaintiff only seeks $115.48 currently for extra freights paid for carriage of cargo from Mobile to Puerto Rico ($85,727.00 minus $85,611.52) (Exhibits 10, 23b)
(3) plaintiff seeks two additional items of damage not previously sought:
Cost of unloading steel from the ACBL $24,428.00 (Exhibit 9)
Cost of loading steel in Mobile for shipment to Puerto Rico $9,267.63 (Exhibit 39)
CONCLUSIONS OF LAW
1. "Solidary liability is not presumed, and pleadings are construed against the pleader. The pleader is presumed to have made his pleadings as strong as he could." Breaux Bridge Lumber Co., Ltd. v. Hebert, et al., 121 La. 188, 46 So. 206 (1908).2. "Courts interpret pleadings liberally, to allow litigants their day in court. . . .Liberality in the construction of pleadings can go only so far." Rideaux v. South Central Bell, 595 So.2d 382 (La.App. 3rd Cir. 1992).
3. The Court notes that jurisprudence provides that "[s]olidary obligations may result, even though the parties are bound under separate contracts, if their respective breaches of their contracts combined and contributed to cause the same item of damages sustained by the plaintiff. Where the combined fault results in a loss for which defendants would be liable for the whole, the defendants' liability may be solidary. [citations omitted] It is the coextensiveness of the obligations for the same debt, and not the source of liability, which determines the solidarity of the obligation." Rivnor Properties v. Herbert O'Donnell, Inc., 633 So.2d 735 (La.App. 5 Cir. 1994), writ denied 643 So.2d 147 (1994); Stonecipher v. Mitchell, 655 So.2d 1381 (La.App. 2 Cir. 1995).
4. The facts in Rivnor and Stonecipher, however, are distinguishable from those set forth in this case. The facts in Stonecipher and Rivnor involve design and construction of a house and office building, respectively. In Stonecipher, the Court determined that the respective breaches by the architect and the contractor combined and contributed to cause the same item of nonpecuniary damage sustained by the Stonecipher's, namely the loss of intellectual enjoyment of the home. As their obligation for the nonpecuniary damage was coextensive, the two defendants were found to be solidarily liable; whereas the pecuniary damages which resulted, were apportioned to each according to each defendant's fault. The Court in Rivnor determined that solidarity was not appropriate in that case as the defects in the construction of the building did not result from the combination of the negligence or poor workmanship of the various subcontractors. Likewise, the facts of this case do not set forth a situation where American Gulf can be held solidarily liable with defendants from another civil action simply because the breach of contract by this defendant resulted in some of the same items of damages, where plaintiff failed to plead that any in solido liability existed between these totally unrelated parties.
5. Looking at the facts as alleged in Civil Action 98-848, there is no reason to think that American Gulf would be held solidarily liable with any other party. J. D. Fields never alleged that any named defendant in the companion case was in any way connected with the defendant named in this matter. There is no allegation that the defendants were solidary obligors. Instead, it was alleged that the breach of contract by American Gulf was the cause of the damages sustained, which is precisely the same argument made when the Judgment of December 17, 1998 was awarded. The plaintiff seeks many of the same items of damage from two distinct and different suits against two defendants between whom there is no connection. "Our procedure does not sanction anything of that kind." See Delesdernier Estate v. Zettxvoch, 175 So.2d 137 (Orleans 1937). As such, based upon Conclusions of Law Numbers 1 and 2 along with Findings of Fact Numbers 5 and 6, there is no basis to find the defendant in this matter solidarily liable with the defendants in the consolidated action.
6. By virtue of the Booking Note, and actions taken between J. D. Fields, its representatives, and those of American Gulf and its representatives, namely the taking of possession of J. D. Fields' shipment of steel and commencing to load it on board the Barge CMD-1, American Gulf as a common carrier became legally obligated to carry said cargo from New Orleans to San Juan, Puerto Rico, on a voyage commencing on or about October 23-24, 1997, and to deliver said cargo to KKZ.
7. Based upon Findings of Fact Number 12, the cargo was not transported on the CMD-1 when it left for Puerto Rico on October 30, 1997, but was instead put back on the wharf to await the return of the barge in 30-40 days. This action constitutes a breach of the contract of carriage. As such, J. D. Fields is entitled to recover those items of damage related to the breach of this contract which have not been previously awarded against some other defendant. Accordingly, American Gulf is liable to J. D. Fields for damages sustained in the amount of $1,900.00, for the Cargo Insurance Premium for Second Voyage ($3,658.73 minus $1,758.73), together with interest and the cost of these proceedings.
This Court denies plaintiff's request for the $24,428.00 Cost of Unloading Steel from the ACBL and $9,267.63 Cost of Loading Steel in Mobile for Shipment to Puerto Rico. While these items of damage were not previously awarded to another defendant, the Court finds that these costs are attributable to the breach of the second contract for carriage of goods and are simply too attenuated from the first breach, which is at issue in this suit, to be borne by the present defendant as solidary liability has not been pled.
8. J. D. Fields originally sought indemnity from American Gulf for liquidated damages for delay in the amount of $50,000 per day, claimed by the purchaser of the steel, KKZ. However, there is no evidence before the Court to indicate that KKZ suffered such liquidated damages or made claim for indemnity from J. D. Fields for such amounts.
9. Likewise, J. D. Fields had an in rem claim against the CMD-1, her tackle, equipment, etc., as the testimony provided that American Gulf is no longer owner of this barge, and there has been no evidence presented to the Court indicating an ability to render judgment against this barge in rem, this claim is hereby DISMISSED.
Accordingly, there will be judgment in favor of the plaintiff, J. D. Fields Company, Inc., and against the defendant, American Gulf Lines, Inc., in the amount of $1,900.00, together with judicial interest and costs.