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Defendants-appellants-cross-appellees S/S Eurounity ("Vessel"), Licetus Shipping, Inc. and Atlantic Lines S.A. appeal from a judgment entered on June 10, 1993 in the United States District Court for the Southern District of New York (Sand, J.) awarding damages in the amounts of $336,580.89 to plaintiff-appellee-cross-appellant Thyssen, Inc. and $19,447.55 to plaintiff-appellee Associated Metals & Minerals Corp. ("Associated") in an action brought pursuant to the Carriage of Goods by Sea Act, 46 U.S.C.App. §§ 1300-1315 ("COGSA"), for seawater damage to steel cargo. The district court found that (1) plaintiffs had stated a valid claim and had established that they were proper parties to bring suit; (2) plaintiffs had established a prima facie case for cargo damage under COGSA by presenting evidence that the cargo was in good order at loading and damaged at outturn; (3) defendants had failed to prove that the seawater damage to the steel cargo was due to a "peril of the sea"; (4) seawater had entered the vessel through unseaworthy hatchcovers; (5) the "market discount" theory was the proper measure of damages; and (6) 46 U.S.C.App. § 1304(5) limited plaintiffs' damages to a maximum of $500 per package.

On this appeal, the Vessel and Licetus contend that plaintiffs failed to state a claim upon which relief can be granted and that the district court erred by finding that the plaintiffs had established a prima facie case for cargo damage under the provisions of COGSA. The Vessel and Licetus also contend that the district court erred in determining: that they failed to prove the defense of "peril of the sea"; that the hatchcovers were unseaworthy; and that the "market discount" theory applied to the calculation of damages in this case. Atlantic Lines cross-appeals from the judgment of the district court to the extent that the judge failed to resolve Atlantic Lines' indemnity claim for costs and attorneys' fees against the Vessel and Licetus. Thyssen cross-appeals, seeking modification of the judgment to allow it to collect its actual damages up to the COGSA package limitation from each defendant.

For the reasons that follow, the judgment of the district court is affirmed.


21 F.3d 533 (1994)

THYSSEN, INC., and its Subrogated Underwriter La Fondiaria Assicurazioni S.p.A. (Successor to Italia Assicurazioni S.p.A.), Plaintiff-Appellee, Cross-Appellant, Associated Metals & Minerals Corp., and its Subrogated Underwriter Naviga S.A. and Thyssen Stahlunion Gmbh, Plaintiff-Appellee,


S/S EUROUNITY, now Seamusic II, her engines, boilers, tackle, etc.; Licetus Shipping, Inc., Defendants-Appellants, Cross-Appellees, Atlantic Lines S.A., Defendant-Appellant, Cross-Appellee.

Nos. 828, 978, 979, Dockets 93-7682, 93-7708 and 93-7718.

United States Court of Appeals, Second Circuit.

Argued December 13, 1993.

Decided April 8, 1994.

New York Law School location: File #1824, Box #32