United States Court of Appeals, Second Circuit

These appeals are from a final judgment filed in the United States District Court for the Southern District of New York on April 28, 1986, following a bench trial before Judge Robert L. Carter. The judgment (1) awarded plaintiff-appellee The Ingersoll Milling Machine Co. ("Ingersoll") damages and prejudgment interest against defendants-appellants Taiwan International Line Ltd. ("Taiwan"), J.E. Bernard & Co. ("Bernard"), and Fireman's Fund Insurance Co. ("Fireman's Fund" or the "Fund") jointly and severally, (2) awarded Ingersoll attorney's fees and litigation expenses against Fireman's Fund, (3) awarded Fireman's Fund a right of subrogation against Taiwan and Bernard, and (4) dismissed claims of Taiwan and Bernard against each other.

Ingersoll cross-appeals seeking to increase its award of damages and prejudgment interest.

Appellants each raise a number of issues on appeal. We consider them seriatim, and we affirm the determinations of the district court except with regard to the award of attorney's fees and litigation expenses.

This case arises from the shipment of certain cargo from the United States to South Korea. The cargo, which was insured, and consisted of 20 packages, 18 of which were stowed on the deck of the ship, was damaged in transit. Simply stated, we must determine whether the district court properly decided who is responsible for the damage and that the insurer improperly refused to cover the loss. We set forth the essential evidence in this section, as found by the district court, 619 F.Supp. 493 (S.D.N.Y.1985), with details to be provided later as necessary.

In January 1978, Waldrich Siegen, GmbH ("Waldrich") of West Germany contracted to sell heavy, specially designed machines to Hyundai International, Inc., in Korea. Waldrich engaged its affiliate, Ingersoll, a manufacturer of special design machinery, as a subcontractor to manufacture Shop Order 24441 ("Order # 24441") and to arrange for its shipment to Korea. Order # 24441 consisted of a ram type, horizontal spindle, traveling column machinery center, and was valued in excess of $2 million.

In the summer of 1979, Ingersoll, located in Rockford, Illinois, contacted Gryphon Shipping Service, Inc. ("Gryphon"), a broker and steamship agent in Chicago, to arrange for shipment of Order # 24441 to Korea.1 Gryphon, in turn, contacted Taiwan, which had time chartered the M/V Bodena from its owner Excellent Marine, Inc. ("Excellent Marine"). Gryphon arranged with Taiwan in August 1979 for the cargo to be shipped in September 1979 from New Orleans aboard the M/V Bodena. A contract of carriage arose between Ingersoll and Taiwan in August 1979 when Ingersoll accepted the terms arranged by Gryphon and informed Gryphon that the shipment of Order # 24441 would be in twenty boxes. The district court found that, at the time of booking, there was no evidence that Ingersoll had agreed to on deck stowage. Gryphon's commission was to be paid by Taiwan, and Gryphon was found by the district court to be Taiwan's agent.

In connection with the shipment, Ingersoll also retained Bernard, a freight forwarder doing business in Elk Grove Village, Illinois, to perform various freight forwarding tasks. In addition to other duties to be performed by Bernard, Ingersoll, by letter dated September 10, 1979, requested that Bernard secure "three originals and four copies of clean on-board bills of lading" (emphasis added). In response to this letter, Bernard prepared two master ditto forms of the bill of lading and also the shipper's export declaration. One of the master ditto forms was sent to Mid-Gulf Shipping, Inc. ("Mid-Gulf"), Taiwan's agent in New Orleans, to be used in the preparation of the original bills of lading; the other was sent to Gryphon. In addition, the master ditto was used to prepare an advance notice of shipment which was sent by Bernard to Ingersoll on September 25, 1979. Neither the master ditto nor the advance notice contained any notation as to stowage. Ingersoll informed Bernard that all the information on the advance notice was correct except that the port of discharge should be changed.

The Ingersoll cargo, which had arrived in New Orleans from Illinois by truck and rail, was loaded on board the M/V Bodena on September 26 and 27, 1979. Of the twenty boxes which comprised Order # 24441, eighteen were initially stowed on deck and two were stowed below deck. Mid-Gulf, Taiwan's agent, was responsible for the issuance of bills of lading. Prior to sailing, Mid-Gulf took the ditto form supplied by Bernard and added the phrase "on deck shipper's risk" to its face. Mid-Gulf then used the altered ditto to run off three original bills of lading and mailed the originals with thirteen copies to Gryphon in Chicago.

Ingersoll received the originals and four copies on October 1, 1979. Fred Woywod, Ingersoll's contract administrator, saw the documents that day but either did not notice the addition of the words "on deck shipper's risk" or if he did notice them, did not understand their legal significance. Bernard, too, received copies of the bills of lading on October 1 but failed to examine the issued bills to determine whether they were in fact clean, and, consequently, failed to inform Ingersoll that Taiwan had not followed the instructions to issue clean bills of lading.

The M/V Bodena, which had made several intermediate stops at various East Coast ports, set sail from Savannah, Georgia, for Korea on October 14, 1979. At the time of sailing, seventeen of Ingersoll's boxes were stowed on deck, one of the boxes initially stowed on deck having been moved below deck. The voyage to Korea lasted more than one month and was beset with storms, heavy seas, and high winds. As a result of heavy rolling and pitching during the voyage, the seventeen boxes on the deck were severely damaged. Some boxes were broken; others were thoroughly soaked by sea water. Because of the damage, Order # 24441 had to be sent from Korea to Waldrich in Germany for repair. None of the three boxes stowed under deck was damaged.

Ingersoll maintained an all risk insurance policy with Fireman's Fund. That policy had been issued as an open cargo policy, designed to cover all of Ingersoll's shipments. In other words, a particular shipment would become covered under the policy either when Ingersoll filled out and sent to Fireman's Fund a certificate of insurance for each shipment, indicating the contents, value, destination, and carrier of the cargo, or when Ingersoll sent to the Fund a monthly declaration of shipments. As testified to by Fireman's Fund officials, such a policy was designed to provide automatic coverage such that even if the certificate or monthly declaration was sent after a loss had occurred, the shipment would nevertheless be covered.

The particular policy in question contained separate clauses for insuring under deck shipments and on deck shipments.2 Clause 17(a) insured under deck shipments and specifically contained broader terms of coverage. Those terms provided coverage against all risks of physical loss or damage. Clause 17(b), which did not contain broader terms, provided coverage for on deck shipments known as free of particular average ("FPA"). FPA coverage does not cover a partial loss of the subject matter insured unless certain contingencies not relevant herein occur. Another provision of the policy, clause 8(B)(2), limited coverage to $175,000 for shipments subject to an on deck bill of lading or shipments stowed on deck with the consent of the insured.3

In August 1979, Ingersoll sent to Fireman's Fund a certificate of insurance to cover Order # 24441. The certificate, which took effect before the boxes were actually loaded aboard the M/V Bodena, stated that the machinery was laden under deck. When Ingersoll learned of the damage to the cargo in December 1979, it notified Fireman's Fund of its loss. After an investigation, Fireman's Fund, on May 23, 1980, denied Ingersoll's claim under its policy for full indemnity for the repairs undertaken by Ingersoll.

The district court found that Taiwan and Bernard were jointly and severally liable for Ingersoll's damages, and accordingly, awarded Ingersoll $977,899 plus prejudgment interest. Fireman's Fund too was found jointly and severally liable to Ingersoll in the same amount under the insurance policy; and it was ordered that to the extent that Fireman's Fund makes payment to Ingersoll for damages assessed, it will be entitled to recover such payment from Taiwan and Bernard, including taxable costs but not including attorney's fees and litigation expenses. Additionally, the district judge ruled that Ingersoll was entitled to recover attorney's fees and litigation expenses from Fireman's Fund. Finally, the district court dismissed the claims of Taiwan and Bernard against each other, as well as Ingersoll's claim against Excellent Marine. This appeal followed.

Ingersoll's claim against Taiwan can be characterized simply as a claim for breach of contract. There is no dispute that a contract of carriage existed between Ingersoll and Taiwan. Telephone conversations in August 1979 between representatives of Ingersoll, Gryphon, and Taiwan, in which the cargo was booked, led to a binding contract when Ingersoll informed Gryphon that it accepted Taiwan's terms. As the district court found, this contract constituted the contract of carriage. The open question then was what were the terms of the contract. More specifically, did the contract call for on deck or below deck stowage.

Absent an express agreement by the shipper permitting cargo to be stowed on deck or a general port custom permitting on deck stowage, a shipper is entitled to expect below deck stowage under a clean bill of lading. St. Johns N.F. Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio De Janeiro, 263 U.S. 119, 123-24, 44 S.Ct. 30, 30-31, 68 L.Ed. 201 (1923); English Elec. Valve Co. v. M/V Hoegh Mallard, 814 F.2d 84, 89 (2d Cir.1987); Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, 422 F.2d 7, 14 & n. 5 (2d Cir.1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970); accord Calmaquip Eng'g West Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 639 (5th Cir. Unit B 1981); see 2A E. Benedict, Benedict on Admiralty Sec. 123, at 12-11 (7th ed. 1987) ("[g]oods stowed on deck without the shipper's consent are at the ship's risk, the shipowner being liable for any loss or damage thereto.") To reiterate, a shipper's reasonable expectation on booking cargo for shipment is that it will be stowed below deck, unless the shipper agrees to the contrary or a general port custom permits above deck stowage. The burden is on the carrier to prove that the shipper consented to something other than the usual and customary arrangement. See Gemini Navigation, Inc. v. Philipp Bros. Div. of Minerals & Chemicals Philipp Corp., 499 F.2d 745, 751 (2d Cir.1974).

Although the district court found that "[t]here is no evidence that Ingersoll specified below deck stowage," 619 F.Supp. at 500, it also found that "there is no credible evidence that Ingersoll agreed to an on deck shipment," id. Thus, the terms of the contract of carriage were established by the industry custom that stowage would be below deck. The district court correctly found that Taiwan had failed to meet its burden of proof that Ingersoll agreed to on deck stowage and that Taiwan was liable for not performing its contract obligations.

Taiwan presents a number of arguments in support of its contention that it is not liable for breach of contract.4 First, Taiwan argues that Ingersoll waived its right to below deck stowage of its cargo. Specifically, Taiwan claims that by receiving the bill of lading on October 1, 1979, with the notation "on deck shipper's risk," Ingersoll had constructive notice that its goods had been stowed on deck. Therefore, Taiwan argues, Ingersoll had a duty to notify Taiwan that on deck stowage was unacceptable so that Taiwan could have either shifted the cargo to a below deck location or unloaded the cargo at another port of call at which the M/V Bodena docked prior to embarking for Korea on October 14, 1979.

The district court did indeed find that Ingersoll had constructive notice that its goods were being carried on the deck of the M/V Bodena at Ingersoll's risk. 619 F.Supp. at 501. However, a party asserting a waiver defense bears the burden of proof in establishing that defense. Taiwan, in our view, cannot make out a defense of waiver. Waiver is generally defined as an intentional relinquishment of a known right. Shearson Hayden Stone, Inc. v. Leach, 583 F.2d 367, 370 (7th Cir.1978); Fustok v. Conticommodity Services, Inc., 577 F.Supp. 852, 859 (S.D.N.Y.1984). See generally 5 S. Williston, A Treatise on the Law of Contracts Sec. 678 (3d ed. 1961). An intent to waive a contractual right must be manifest in a party's failure to object. See Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208, 213 (7th Cir.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980).

Ingersoll's contract with Taiwan, as the district court interpreted it, called for under deck stowage. We find no basis in the record upon which to conclude that Ingersoll intentionally relinquished its right to under deck stowage. Ingersoll's silence after receiving constructive notice of the on deck shipment lacks the requisite manifest intent to constitute a waiver. Ingersoll's silence and failure to act can better be characterized as an oversight or carelessness rather than as a waiver of a contractual right. The mere fact that Ingersoll can be deemed to have been informed that its machinery was being shipped to Korea on deck does not mean that the conclusion must be drawn that it knowingly consented to a modification of the original contract.

Next, Taiwan contends that Gryphon was Ingersoll's agent and therefore that Ingersoll was bound by the contracts entered into by Gryphon. Taiwan claims that if Gryphon was aware during booking that Order # 24441 was going to be shipped on deck, Ingersoll would be bound by that knowledge. However, the district court specifically found that Gryphon was Taiwan's agent.5 This finding may not be reversed unless clearly erroneous. O'Connell Mach. Co. v. M.V. "Americana", 797 F.2d 1130, 1133 (2d Cir.1986). It appears that there is sufficient evidence in the record to support this finding. For instance, Gryphon paid Bernard its brokerage commission on Taiwan's behalf. Bernard also sent a copy of the master ditto bill of lading to Gryphon to prepare the bill of lading, which Gryphon would be likely to do if it was Taiwan's agent. Moreover, Taiwan paid Gryphon a finder's fee for obtaining the Ingersoll cargo for Taiwan.

Taiwan also contends that even if the initial oral contract called for below deck stowage, Ingersoll's receipt of the bill of lading with the new terms changed the parties' obligations. As Taiwan would have it, only the bill of lading, even if it contains unauthorized terms, represents the contract of carriage. In other words, Taiwan contends it is solely the bill of lading which governs and determines the proper stowage of the cargo. While it is true that a bill of lading may under certain circumstances constitute the contract of carriage between the parties, see CIA. Platamon de Navegacion, S.A. v. Empresa Colombiana de Petroleos, 478 F.Supp. 66, 67 (S.D.N.Y.1979); see generally 2A Benedict on Admiralty Sec. 34, at 4-13, Taiwan's argument is not at all persuasive on the evidence in this case. A carrier such as Taiwan may not unilaterally alter a bill of lading so as to bind the shipper without the authorization of the shipper. See West India Indus. v. Tradex, Tradex Petroleum Services, 664 F.2d 946, 949-50 & n. 5 (5th Cir.1981). A carrier cannot impose on deck stowage on a shipper merely by including a notation in the bill of lading which it delivers after the voyage commences. To allow a carrier after the fact to impose on the shipper an unauthorized change of terms would run counter to the general proposition that without its contrary agreement, a shipper is entitled to expect below deck stowage. See St. Johns N.F. Shipping Corp., 263 U.S. at 124, 44 S.Ct. at 30; Encyclopaedia Britannica, Inc., 422 F.2d at 14 & n. 5. Under the circumstances presented herein, the contract of carriage which governed the obligations of Ingersoll and Taiwan was the one orally entered into in August 1979 and not the altered bill of lading.

Finally, Taiwan argues that Ingersoll had the burden of showing that the damage was caused by Taiwan's negligence and, in any case, that its liability should be limited to $500 per package pursuant to the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. Sec. 1300 et seq. (1982 & Supp.1983), which the bill of lading incorporated by reference. We reject both of these contentions. First, as shown above, Taiwan's stowage of Ingersoll's cargo on deck without Ingersoll's permission was a breach of the contract of carriage. A showing that Taiwan was negligent by such stowage is not relevant to or necessary for establishing a breach of contract. Second, where, as here, a carrier has materially deviated from the terms of the contract of carriage, monetary limits contained in COGSA and in bills of lading are inapplicable; rather, the carrier is liable in full as an insurer of the cargo. General Elec. Co. Int'l Sales Div. v. S.S. Nancy Lykes, 706 F.2d 80, 87 (2d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); Calmaquip Eng'g West Hemisphere Corp., 650 F.2d at 638-39; Encyclopaedia Britannica, Inc., 422 F.2d at 18. Therefore, because Ingersoll's cargo was stowed on deck in breach of the contract of carriage, Ingersoll's recovery is not contingent upon a showing of negligence, and Taiwan cannot benefit from the limits of liability in the bill of lading or in COGSA.

As a preliminary matter, Bernard challenges the district court's assertion of subject matter jurisdiction. Since there does not appear to be diversity or federal question jurisdiction, subject matter jurisdiction must reside, if at all, under 28 U.S.C. Sec. 1333, which provides for admiralty or maritime jurisdiction in the federal courts. Bernard, seeking to avoid the application of admiralty jurisdiction, characterizes its contract with Ingersoll as one for preliminary brokerage services only incidentally related to the maritime contract between Ingersoll and Taiwan. The district court, after observing that "[f]ederal courts have traditionally exercised admiralty jurisdiction over shipper's claims against freight forwarders," 619 F.Supp. at 503, held that the services Bernard performed were not preliminary in nature. While we decline to lay down a general rule that freight forwarders are always subject to admiralty jurisdiction, we do hold, for reasons discussed below, that in this instance, Bernard's freight forwarding contract with Ingersoll involved enough tasks of a non-preliminary nature to support admiralty jurisdiction.

We have recognized that "[t]he precise categorization of the contracts that warrant invocation of the federal courts' admiralty jurisdiction has proven particularly elusive." CTI-Container Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir.1982). The Supreme Court has cautioned that "[t]he boundaries of admiralty jurisdiction over contracts--as opposed to torts or crimes--being conceptual rather than spatial, have always been difficult to draw." Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961). A long-recognized principle for determining whether a contract is maritime is that agreements preliminary to maritime contracts are not cognizable in admiralty. Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp., 739 F.2d 798, 801 (2d Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1405, 84 L.Ed.2d 791 (1985); 1 Benedict on Admiralty Sec. 184, at 11-8 (7th ed. 1985). Applying this principle, our Court, despite questioning its continuing validity, has recently affirmed the longstanding, well settled rule laid down by the Supreme Court in Minturn v. Maynard, 58 U.S. (17 How.) 477, 15 L.Ed. 235 (1854), that general agency contracts are not cognizable in admiralty. Peralta Shipping, 739 F.2d at 804. General agency contracts are those that call for the "husbanding" of a vessel, that is, arranging for performance of a variety of services preliminary to maritime contracts, such as soliciting cargo or passengers, and procuring supplies, crews, stevedores, and tugboats. Thus, in Peralta Shipping, this Court held that a contract which included a duty to supervise the performance of maritime contracts did not warrant admiralty jurisdiction. Id. at 803.

Bernard argues that freight forwarding contracts fall within the ambit of general agency contracts and are therefore excluded from admiralty consideration. Courts that have specifically dealt with admiralty jurisdiction over freight forwarders appear to have arrived at different conclusions. Compare Outbound Maritime Corp. v. P.T. Indonesian Consortium of Constr. Indus., 575 F.Supp. 1222, 1223-24 (S.D.N.Y.1983) (freight forwarder subject to admiralty jurisdiction) with Johnson Products Co. v. M/V La Molinera, 619 F.Supp. 764, 767 (S.D.N.Y.1985) (freight forwarder not subject to admiralty jurisdiction). However, the focus of our inquiry must be not on the name assigned to the contract, but rather on the nature of the services to be performed. It is the character of the work to be performed under the contract that is determinative of whether the agreement was maritime. Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974); see also North Pac. S.S. Co. v. Hill Bros. Marine Ry. & Shipbld. Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222, 63 L.Ed. 510 (1919); James Richardson & Sons v. Conners Marine Co., 141 F.2d 226, 228 (2d Cir.1944). If the subject matter of the contract " 'relat[es] to a ship in its use as such, or to commerce or to navigation on navigable waters, or to transportation by sea or to maritime employment' " it is fairly said to constitute a maritime contract. CTI-Container Leasing Corp., 682 F.2d at 379 (quoting 1 Benedict on Admiralty Sec. 183, at 11-6 (7th ed. 1981)). Accordingly, we turn to an examination of the services to be performed by Bernard under its contract with Ingersoll.

Of the thirteen services listed by the Federal Maritime Commission which a freight forwarder may perform at the request of a shipper, 46 C.F.R. Sec. 510.2(h), Ingersoll asked Bernard to undertake six. Bernard was obligated to prepare and process export declarations; to prepare and process delivery orders or dock receipts; to prepare and process ocean bills of lading, including the preparation and forwarding of a master ditto; to prepare and send advance notification of shipments or other documents to banks, shippers, or consignees; to handle freight or other monies advanced by the shipper or to remit or advance freight or other monies or credit in connection with the dispatching of shipments; and together with Ingersoll, to coordinate the movement of shipments from origin to vessel.

Although Bernard's services may not have included all the services a freight forwarder traditionally performs for a shipper, it is not upon the number of services that we focus but rather on their nature. The preparation and processing of export declarations, delivery orders, dock receipts, bills of lading, and advance notification of shipment are not services rendered preliminary to a voyage rather they are essential to it. Without these, there can be no voyage. Specifically, we note that the district court found that Bernard's obligation with regard to the bills of lading was twofold. First, Bernard was engaged to secure clean on board bills of lading. Additionally, on receipt of the bills of lading, Bernard was to review the copies it received and to advise Ingersoll if in fact they were not clean. 619 F.Supp. at 502. Bernard's duty to secure clean bills of lading is akin to the issuance of bills of lading themselves. An obligation to procure a bill of lading for an ocean shipment, in our view, is a contract relating to transportation by sea. The procurement of the proper papers and documents relating to a shipment by sea is an essential and integral part of the shipping process; a contract to obtain those papers, therefore, falls squarely within the admiralty jurisdiction of the federal courts.

Bernard relies heavily on Johnson Products, which held that the forwarding of a bill of lading does not in itself create a maritime contract. We believe that Johnson Products is distinguishable from this case. In that case, the obligation of the freight forwarder was merely to pass along the bill of lading that was issued by the carrier. 619 F.Supp. at 767. Herein, Bernard's obligation to Ingersoll was to do more than merely transfer documents. Bernard had an affirmative obligation to secure clean bills. Its responsibilities did not begin when the completed bills of lading first arrived on its desk. Bernard was engaged to ensure that Ingersoll's cargo would be properly loaded on board the M/V Bodena so that the proper bills of lading would be issued. Thus, having undertaken to arrange for the proper loading of the cargo onto the vessel, as well as other tasks of a nonpreliminary nature, we conclude that Bernard's contract with Ingersoll can fairly be characterized as a maritime contract supportive of admiralty jurisdiction.

Bernard's contract with Ingersoll called for Bernard to perform a number of services typically associated with a general freight forwarder. Bernard's contention that its duties were more limited in scope than those generally performed by freight forwarders is not pivotal in determining whether Bernard breached its contract with Ingersoll. Our focus must be on the specific obligations involved and whether Bernard satisfactorily performed them. As noted, the district court found that two of the tasks to be performed by Bernard related to the bills of lading. Bernard was bound initially to secure clean on board bills of lading for Ingersoll. Moreover, Bernard was bound to examine the bills of lading once they had been issued by Taiwan and to inform Ingersoll of any imperfections. The district court held that Bernard failed in both respects: it failed in its obligation to procure clean bills, and it failed to examine the copies it received and to advise Ingersoll that in fact they were not clean. 619 F.Supp. at 502. We find no clear error in the district court's finding that Bernard failed in its primary duty, namely, to supply the clean bills. We therefore find it unnecessary to reach the secondary question, whether Bernard also failed to review the bills for imperfections.

Bernard contends that the bills of lading that it supplied were in fact clean. According to Bernard, the notation of the words "on deck shipper's risk" did not render the bills unclean. In Bernard's view, a "clean" bill of lading requires only that the shipping document bear no notation on its face that expressly declares a defective condition of the goods. In other words, it contends, a "clean" bill of lading indicates that the goods were not received by the carrier in damaged condition at the time of shipment. The phrase "on deck shipper's risk," Bernard argues, is a clause which does not describe the physical condition of the goods at the time of receipt by the carrier, but rather relates instead to who bears the risk during voyage. So interpreted, a notation declaring that the shipper bears the risk of damage during the voyage would not affect the cleanliness of the bills. We disagree with Bernard's interpretation.

It is no doubt true, as Bernard claims, that a "clean" bill of lading refers to the undamaged condition of the cargo at the time it is received by the carrier. Vana Trading Co. v. S.S. "Mette Skou", 556 F.2d 100, 103 n. 4 (2d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977); C. Gilmore & C. Black, The Law of Admiralty Sec. 3-13, at 122 (2d ed. 1975). However, a "clean" bill of lading refers to more than just the condition of the goods. It has long been recognized in admiralty custom and practice that a "clean" bill of lading refers also to the place on a ship where cargo is to be stowed.6 "[A] clean bill of lading imports that the goods are to be safely and properly stowed under deck." The Delaware, 81 U.S. (14 Wall.) 579, 602, 20 L.Ed. 779 (1871) (emphasis added); see Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 859 (2d Cir.1985). Noted admiralty commentators agree that a "clean" bill of lading denotes a bill that is either silent as to stowage, thereby imputing that the cargo is to be stowed below deck, or provides for under deck stowage. 2A Benedict on Admiralty Sec. 97, at 9-12 (7th ed. 1987) ("[t]he issuance of a clean bill of lading--one which does not specifically provide for on-deck stowage--obligates the carrier to stow the cargo under deck"); id. Sec. 123, at 12-10 ("[a] clean bill of lading imputes under-deck stowage"); A. Knauth, Ocean Bills of Lading 237 (2d ed. 1941) ("[a] 'clean' bill of lading is an unwritten representation that the cargo would be carried under deck"). Thus, when a shipper requests a "clean" bill of lading it expects to receive from the carrier a document which either specifically notes that stowage is under deck, see Thyssen, Inc. v. S.S. Fortune Star, 777 F.2d 57, 59 (2d Cir.1985), or is silent as to stowage, see The Idefjord, 114 F.2d 262, 266 (2d Cir.), cert. denied, 311 U.S. 707, 61 S.Ct. 175, 85 L.Ed. 459 (1940). If the document is silent as to stowage, the assumption is that the goods have been stowed below deck. In other words, a request for a "clean" bill of lading is an implied request for stowage below deck.

Ingersoll's instruction to Bernard in its letter of September 10, 1979, was to provide "clean" on board bills of lading. Bernard, therefore, was duty bound to supply bills that noted or implied that stowage was below deck. Contrary to Ingersoll's instruction, the bills actually provided by Bernard contained a notation indicating that the goods had been stowed on deck. Thus, Bernard plainly breached its contract with Ingersoll.

Bernard also contends that even if it failed to supply "clean" bills of lading to Ingersoll, its breach of contract was not causally connected to the damage to Order # 24441. Essentially, Bernard argues that even if it had reviewed the bills and found the notation, the damage to the cargo would still have occurred. By the time the notation was detected, the cargo was already on deck and at sea. Therefore, according to Bernard, its failure to advise Ingersoll that the bills bore the clause "on deck" did not cause or contribute to the damage.

Bernard's contention might have some merit were its only contractual duty to review the bills after they had been issued. In such case, given that Bernard received the documents on October 1 and that the M/V Bodena did not actually leave the United States bound for Korea until October 14, the feasibility of unloading the cargo at another U.S. port prior to sailing would be a crucial issue. The district court did not decide whether unloading was a viable option because of a dearth of evidence. 619 F.Supp. at 502. However, the question of whether the cargo could have somehow been saved between October 1 and October 14 is not determinative of Bernard's liability. Bernard