Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW DANIEL HOLCOMBE THOMAS, Senior District Judge. The above-styled cause was heard by the Court without a jury and taken under submission on the 20th day of July 1976. After hearing the evidence for some twenty-five days, examining the exhibits, pleadings and stipulations, and having considered the arguments and proposed findings of fact and conclusions of law of counsel of all parties, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. The plaintiff herein, T. J. Stevenson & Company, Inc. (Stevenson) is a corporation organized under the laws of the State of New York and is engaged generally in the steamship business. Stevenson was, at all material times, the owner of the vessels SOUTHWALL and ARIZONA and was the time charterer of the M/V NEDON. 2. ADM Milling Company, Inc. (ADM), claimant and counter-claimant, in the above-styled cause, is a corporation organized and existing under the laws of the State of Illinois, having its principal place of business in Shawnee Mission, Kansas. ADM was, at all material times, engaged in the business of the milling of wheat into flour. 3. The Ministry of Industry, Commerce and Tourism is an agency or branch of the Government of the Republic of Bolivia (hereinafter referred to as the Ministry of Bolivia) having its principal offices in La Paz, Bolivia. HISTORY OF A LAWSUIT 4. In the spring of 1974, the South American country of Bolivia sought to purchase wheat flour in the American market for the purpose’of supplying the bread demand of her population. Therefore, the Bolivian government authorized and funded Heran Landivar, Sub-secretary of the Ministry of Industry, Commerce and Tourism of the Republic of Bolivia to obtain such a purchase. Prior to departing for the United States, Landivar called upon the American Ambassador in La Paz, Bolivia, and asked him for assistance in making the necessary purchase of flour. As a result of the sub-secretary’s request, the State Department of the United States provided him with an audience in Washington. 5. Subsequently on his arrival in Washington, Landivar attended the meeting at the State Department with Bolivian Ambassador Valencia wherein Landivar sought to obtain information for purchasing flour, lard and oil. An appointment with the United States Department of Agriculture (USDA) was scheduled for the sub-secretary the following day; however, as Landivar was unable to attend, he delegated the authority to purchase flour for the Ministry to Dr. Juan Loria, at that time a minister with and later Chargé d’Affaires of the Bolivian Embassy in Washington, D. C. Following the instructions of the Ministry, Dr. Loria contacted ADM, one of the milling companies recommended by the USD A wherein Bolivia entered into two contracts of purchase and sale with ADM for the delivery of wheat flour. THE FLOUR CONTRACTS 6. On April 11, 1974, the first contract of sale was entered into between Bolivia and ADM. (ADM Ex. 26B, Bol. Ex. 10) Under such contract 20,000 metric tons of ADM hard winter wheat flour were to be delivered F.A.S. Mobile, Alabama, for export between June 1 and September 10, 1974. The price was $230.88 per ton payable by irrevocable letter of credit. (Bol. Ex. 10) Having entered into this first contract with ADM, Dr. Loria reported this information to Landivar who subsequently authorized the purchase of an additional 8,618 metric tons of flour. 7. On April 15, 1974, a second contract was entered into, (ADM Ex. 26A, Bol. Ex. 11) the terms of which, excluding quantity, price and delivery date, are the same as the first contract. Bolivia required all flour to be shipped in cotton bags. Under the second contract, 8,618 metric tons were to be delivered F.A.S. Mobile, Alabama, for export during April/May, 1974, at a price of $235.95 per metric ton. (ADM Ex. 26A, Bol. Ex. 11) The total amount of flour purchased by Bolivia in both contracts was to be transported from Mobile in eight shiploads, hereinafter referred to as liftings. With some minor exceptions and notwithstanding the normal torn, wet and short bags of flour which generally occur on ocean voyages, the first five liftings of flour were properly received by Bolivia by September 1, 1974. The heart of this litigation concerns the problems surrounding the sixth, seventh and eighth liftings, caused by insect infestation. CONTRACT SPECIFICATIONS 8. Both contracts contained specifications as to protein, ash and moisture content. Moreover, on the front page of each contract between ADM and the Ministry, the following provision appears: Except as provided on the reverse side, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT EXTENDS BEYOND THE DESCRIPTION ON THE FACE HEREOF, except that the product sold hereunder shall be of merchantable quality. ... (Bol. Exs. 10, 11) THE IRREVOCABLE LETTERS OF CREDIT 9. Pursuant to its contracts with ADM, Bolivia opened two irrevocable letters of credit through its local bank Banco Central de Bolivia, La Paz, Bolivia, the correspondent bank of which was the First National City Bank, New York, New York. The first letter of credit No. 9090 (ADM Ex. 13, Bol. Ex. 26) was opened on April 18, 1974, in the favor of ADM securing the purchase price of the flour for sums not exceeding a total of U.S. $6,651,017.10, F.A.S. Mobile, Alabama. In addition, the letter of credit was payable on sight if accompanied by (1) commercial invoice with a price F.A.S., legalized by Bolivian Consulate, pertaining to 28,618 metric tons of flour; (2) Bolivian Consulate invoice; and (3) a certificate of quality. 10. This letter of credit was amended several times concerning the percentage of protein, the changing of the shipping schedule and the markings on the bags of flour. 11. In order to transport 28,618 tons of flour to South America, the Bolivian Embassy engaged the services of St. John International, Inc. (St. John), a shipping broker, which had been the agents for the Bolivian Government in the past with regard to U. S. Public Law 480 shipments, commonly referred to as the Agricultural Aid Program. St. John’s primary responsibility was to coordinate the shipping program for the arrival of ships in Mobile and to arrange for the vessels to carry the flour to either Arica or Antofagasta, Chile. 12. Bolivia is a land-locked country and therefore, goods imported by sea must come through a neighboring coastal country. Bolivia asserts that she has a treaty with Chile governing the Port of Arica and that this treaty allows for the free importation of goods to Bolivia. In the instant case, most of the flour liftings were to be shipped through Arica. Upon arrival in Arica, the flour was to be transported to Bolivia by rail. At times, the port of Arica is subjected to congestion because of the limited rail facilities. Railroad capacity from Arica to La Paz is approximately 300-350 tons per day. THE FLOUR CARRIER 13. St. John, as representative of Bolivia, made several unsuccessful attempts into the liner/conference market to locate a carrier to transport the flour. Consequently, St. John surveyed the tramp steamer market to seek out interested parties. The only tramper to respond to the inquiries of St. John was T. J. Stevenson & Company. 14. Subsequently, on April 27,1974, Stevenson and St. John entered into a contract of carriage, commonly referred to as a booking note, whereby Stevenson was to transport 28,618 metric tons of flour from Mobile, Alabama, to Bolivia, via Arica/Antofagasta, Chile, ports of entry for Bolivia. (TJS Ex. 2) The shipping dates were 8,618 metric tons between May 15 and June 10, 1974, and 20,000 metric tons between June and October, 1974. The freight rate was $60.00 per ton. (TJS Ex. 2) 15. The booking note anticipated that the total flour cargo would be carried in a series of voyages, initially extending through September 1974. The schedule would be set by Bolivia and in accordance with the instructions from Bolivia, St. John altered the schedule periodically, including a delay of the final shipment to October 31st because of congestion in the Port of Arica. The position maintained by Stevenson throughout these proceedings is that although Bolivia advised ADM of the shipping delays and notwithstanding the fact that ADM consented to at least some of the later schedule changes, ADM was not privy to the Stevenson-Bolivia (St. John) contract. 16. The second letter of credit No. 9115 was opened by Bolivia on May 7, 1974, in favor of Stevenson in an amount not to exceed U.S. $1,923,120.00. It was payable by sight draft accompanied by (1) commercial invoice and (2) clear “on board” ocean bills of lading. (TJS Ex. 4) This letter of credit was also amended on three occasions to resolve the difficulties encountered in placing vessels on berth in Mobile in accordance with the schedule set up in the booking note. OTHER PARTIES INVOLVED IN FLOUR TRANSPORT MIDWEST TO MOBILE 17. In order to transport the flour from the mills to Mobile for export, ADM engaged the services of D. F. Young Company (D. F. Young), a freight forwarder in New York. As ADM’s foreign freight forwarder, D. F. Young would handle the “red tape” of exportation, namely, the export declarations and shipping documents necessary for ADM to comply with the Bolivian letters of credit. 18. T. A. Provence and Company (Provence) was a local Mobile freight forwarding company hired by D. F. Young to carry out the part of the operation in the port city of Mobile. 19. Page & Jones, Inc. (Page & Jones) operated as the steamship agent for Stevenson in Mobile throughout the flour movement. As agent, it was to coordinate the arrival of the vessels and cargo so that the flour could be loaded aboard the ships. 20. Atlantic & Gulf Stevedores (Atlantic & Gulf) was appointed to load the cargo from the warehouse at the Alabama State Docks on to the ships. 21. During April 1974, ADM requested Superintendence, Inc. (Superintendence) of New York, to sample and test-weigh the flour prior to loading on the vessels and to prepare quality certificates. (TJS Ex. 119) Bolivia was notified of Superintendence’s function by letter from ADM to Dr. Loria of the Bolivian Embassy on April 29, 1974. (ADM Ex. 132) It is the position of ADM that the method of sampling, the time of sampling, and the other details of the performance by Superintendence of the sampling and inspection function were determined and carried out by Superintendence and that ADM gave no instructions to Superintendence as to how and when to per-. form the sampling and testing. In effect, ADM asserts that Superintendence was an independent contractor and not an agent of ADM. CARGO OPERATION AND PROCEDURE IN THE PORT OF MOBILE 22. After milling, the flour in question was loaded on railway cars, generally 1,000 bags per car, and dispatched. As reflected by the testimony, the mills would notify Provence, their local freight forwarder, that the cars were on their way. Upon arrival in Mobile the railroad would notify Provence, which in turn, contacted the Traffic Department of Page & Jones, which handled the cargo and documentation. The Traffic Department passed the arrival notice on to the Operations Department which was responsible for all matters pertaining to a vessel’s arrival, stay and departure. Additionally, the Operations Department of Page & Jones was contacted as to the date of arrival of a particular vessel through Stevenson or via the incoming vessel’s radio. 23. Thereafter, Mr. Reese Armour, head of Operations for Page & Jones, went to the Alabama State Docks, where a berth was assigned in which to work the flour cargo. Armour would also obtain a permit for the Alabama State Docks authorizing the rail cars to enter the docks. The next step in this cargo transport required the head of the Traffic Department, Mr. Al Crismon, to contact Provence to have the rail cars sent to the pier designated by the Alabama State Docks. 24. Subsequently, a car list designating a lot number for each car, car number contents and the specific date that each car arrived in Mobile was documented. This information was gathered by Mr. Danny Cleveland of Provence. The car list was then furnished to Page & Jones by letter or telephone. As stated previously, the railroad received its instructions from Provence and the cars were sent to the Alabama State Docks, entered the docks, and proceeded to the warehouse for unloading. 25. The flour was unloaded at the back side of the warehouse which had access to the rail carriers, the front of the warehouses have access to the slip where the ships dock. The Alabama State Docks furnished the labor to discharge the cargo and used its own check sheets to provide receipts to the railroad attesting to the number of bags and the apparent condition of the cargo. (ADM Ex. 2 checks sheets) In addition to the checker from the Alabama State Docks, Page & Jones also had a checker to watch the unloading. A basic issue to be determined concerns the type and extent of the inspection made by the checkers of both the Alabama State Docks and Page & Jones. Admittedly, these checkers would usually inspect the bags and note any torn or damaged bags. Moreover, the checkers looked for any shortages or wet bags. Immediately after the State Docks employees had signed the check sheets, Page & Jones checkers would sign the Alabama State Docks receipt which contained the following stamped notation: NON-NEGOTIABLE The undersigned acknowledges receipt of the goods specified herein, in the apparent order and condition noted, subject to all of the terms, conditions and exceptions of the company’s usual form of bill of lading and which shall be applicable at all times while the goods are in the custody of the company. PAGE & JONES INC., AGENTS By---------------------- Having considered the testimony, the Court finds that no internal inspection or sampling was made at this point for the presence of infestation or foreign matter in the flour. The Court further finds that any inspection made by the checkers of the Alabama State Docks, Atlantic & Gulf and/or Page & Jones was a visual inspection looking only for apparent, observable external conditions such as wetted bags, torn and/or damaged bags and shortages. 26. Upon receipt of the cargo, the flour was unloaded from the railroad cars onto pallets and was then picked up by forklifts and placed in the warehouse at the direction of the Alabama State Docks’ authorities. SANITATION AND EXTERMINATION THE WAITING PERIOD IN WAREHOUSES 3 AND 4 27. While awaiting loading aboard the vessels SOUTHWALL, ARIZONA and NE-DON, the flour was stored in Warehouses 3 and 4 which are owned, operated and maintained by the Alabama State Docks. The above numbered warehouses were selected and assigned by the State Docks authorities and said cargo was retained at all times in these warehouses until the arrival of the particular vessel on which the cargo was to be loaded. 28. According to the testimony of several witnesses, including that of Mr. Robert Hope, Director of the State Docks, Warehouses 3 and 4 are dockside structures with concrete floors, concrete and metal walls, and metal roof and framing. A threshold issue to be determined concerns the sanitary conditions in Warehouses 3 and 4 during that several month period of 1974 where the cargo was stored and later loaded onto the vessels. The Court takes judicial notice that the summer months, including the month of September, 1974, were hot and humid in Mobile, Alabama. Moreover, the testimony of Mr. Kenton L. Harris, an experienced and well-qualified entomologist, along with the testimony of several other witnesses, demonstrates that such conditions as exist in Mobile are favorable for the development and growth of the tribolium casteneum (red rust flour beetle) and the tribolium confusum (the confused flour beetle). In addition, it is undisputed that during this period vessels arrived and docked at the State Docks from many foreign ports carrying wide varieties of cargo including food products such as grits, rice, wheat feed and flour. These cargoes are stored for varying periods of time in all of the State Docks warehouses. In support of its claim that the conditions in Warehouses 3 and 4 were unclean and not fit to store flour cargo, ADM asserts that other cargoes were loaded onto the same pallets as the ADM cargo over varying periods of time. ADM further relies upon the testimony of Ron Dunmire, a representative of Superintendence who testified to having seen empty and loaded pallets in Warehouses 3 and 4 during September 1974, which contained residues of prior cargoes and that insects were seen in said residues. In addition, ADM points out that Mr. Michael Pyer, a London surveyor, employed by Stevenson’s underwriters, reported in his inspection on October 19, 1974, some dead infestation on some of the pallets used to load the flour in question. 29. In opposition to ADM’s position, Stevenson asserts that Warehouses 3 and 4, in all respects, were apparently clean and fit to receive and store flour cargo. Bolivia’s position is that the Alabama State Docks maintained an extensive sanitation and extermination program and therefore the warehouses were clean. 30. Mr. Tom Richards testified that the State Docks maintained a sanitation program and that he supervised a sanitation crew of some thirty-three (33) men and three (3) road-type mechanical sweepers. Moreover, he testified that the crew cleaned each warehouse at least once per week with Richards maintaining a daily check. Generally, a cleanup consists of sweeping the floors, walls, ledges and pallets. The warehouses were swept after a cargo was moved out. Finally, Richards testified that this sanitary procedure was followed regularly during 1974. 31. The supervisor in charge of rodent and pest control was Mr. Harold Nelson, a full-time pest control expert licensed by the State of Alabama. Nelson testified that part of his job, with the help of several assistants, was to periodically spray each pallet with a 3-grade 57% solution of MALATHION. According to Nelson, pallets were brought out of the warehouse, dropped (turned over with lift trucks) to knock off foreign matter and/or dislodge residue and sprayed with a high pressure fire hose. Nelson further stated that he, with the help of assistants, would spray each pallet with malathion using 300 pounds of pressure and a two foot fan nozzle. Nelson also testified that the pallets were never used without having been sprayed, and that the pallets used to hold the ADM flour were sprayed before and after their use. According to Nelson, the warehouses were checked and sprayed every 3 or 4 months. At times the warehouses were sprayed when they were empty or almost without cargoes. Testimony revealed that the floors, cracks and ledges and walls up to 2-3 feet were sprayed. Moreover, Warehouses 3 and 4 were sprayed in July and November 1974. In addition, the evidence discloses that the flour which made up the first lifting of the ADM shipment was stored in the Alabama State Docks Warehouses 3 and 4 as of May 6,1974. The flour for the next four liftings was likewise stored in said warehouses and despite the fact that some of these liftings laid on pallets during the hottest part of the summer, no live infestation was found until September 24, 1974. This fact, together with others, leads the Court to believe that the infestation was brought to the warehouses instead of originating in the warehouses. Accordingly, the Court is of the opinion that there is insufficient evidence to support the contention that live infestation existed in Warehouses 3 and 4 prior to the arrival of the ADM flour. On the contrary, the Court finds that the infestation of the flour in question did not come from the Alabama State Docks’ Warehouses 3 and 4. PRODDING AND A PROBING 32. Subsequent to the arrival of the flour at the Alabama State Docks, and before the flour was loaded aboard the vessels, representatives of Superintendence began test weighing the flour and taking random samples of the flour with an instrument known as a grain probe. 33. Although ADM appointed Superintendence to inspect and weigh the flour cargo, Superintendence received no instructions from ADM or Provence as to how or when the sampling was to be performed. However, samples were taken as close as possible to the estimated time of arrival (ETA) of the vessel. 34. The method of sampling consisted of a two percent (2%) random sample, that is 20 bags per 1,000 were sampled with a trier or grain probe. Such a sample from 2% of the bags contained only 10 oz. of the 100 pound bag sampled. In effect, the sample contained less than 1% in volume of the 2% sample of each lot. Thus, as asserted by Stevenson, the inspector actually viewed less than 1 part in each 5,000. The sample was taken by inserting the probe into the middle of the bag and thrusting it forward towards the opposite end until it was filled. The probe was then withdrawn and the sample was placed into a paper bag. Thereafter, the sample was taken to Superintendence’s office on the State Docks. In the office the flour was screened through a 50-mesh screen. Any residue on the screen was examined for infestation and was noted by the sampler. Subsequently, the sample was forwarded to Superintendence’s New Orleans office along with a report which in turn was sent to the Superintendence’s laboratory in New York for chemical analysis. There, analyses were run on the flour to determine the moisture, ash and protein content. Following this chemical analysis the results of the laboratory test along with the report and findings of the Superintendence representatives in Mobile were incorporated into a Certificate of Quality. 35. At this juncture, an issue that has pervaded this entire action, concerns the effectiveness of the 2% random sample probe and whether the sample of each lot forwarded to the laboratory in New York City for chemical analysis was in fact a representative sample of the Bolivian flour. Bolivia maintains that since the sample sent to New York had already been sifted and, therefore, contained no foreign matter, the sample was “cleaned up” and was not in fact representative of the flour in the warehouse. (TJS Ex. 27, 28) Accordingly, it is Bolivia’s theory that the results of the analysis were misleading and therefore, the certificates of quality were fraudulent. 36. A synopsis of the misrepresentation theory advanced by Bolivia alleges that when the samples of the car lots of flour that were to be loaded aboard the SOUTH-WALL and ARIZONA were taken by Mr. Dunmire’s part-time workers and later sifted by Dunmire, the live insects that were found on his sieve were not placed back into the sample that was forwarded to the Bureau of Chemistry Laboratory Division of Superintendence in New York for analysis. In other words, the analysis was not representative of the flour sample in Mobile in that the insect fragments, insect larvae, among other foreign matter, were sifted out of the samples before they were sent off to the laboratory. Admittedly, the live insects found in Mobile were not placed back into the sample forwarded to the New York laboratory. However, the testimony of several witnesses, including that of Mr. Harris, is that a chemical analysis is an analysis on the chemical constituents of the particular food product; namely, an analysis to determine the moisture, protein and ash count and not the infestation or insect fragment count. Moreover, the foreign matter detected on Dunmire’s sieve was noted in his report and this information was cited by Dunmire. The Certificates of Quality presented to Bolivia on the flour cargo for the SOUTH-WALL and ARIZONA do not describe the extent or amount of infestation, yet there is insufficient evidence to show that Superintendence or ADM attempted to camouflage their findings. Moreover, no evidence was offered that Superintendence prepared their certificates differently for Bolivia than for other customers requesting such an analysis. Having considered the testimony, the Court is of the opinion that there was no misrepresentation as to the Certificate of Quality presented to the Embassy in Bolivia. Regarding the effectiveness of the 2% composite sampling, the question presented is whether this method employed by Superintendence was a reliable and acceptable method of sampling to determine infestation or the absence thereof. Having heard the expert testimony, the evidence establishes that there are more effective methods of sampling flour to determine infestation. Michael Pyer testified that his inspection of flour cargo consisted of examining the mouths of the bags, and after slitting the side of the bag, he would rake his hand across to locate insects which are generally located near the surface. The Court finds that the random 2% grain probe method is not the most reliable and effective test to determine infestation or its absence. However, this method is acceptable in the trade. THE SIXTH AND SEVENTH LIFTINGS AND THE INSPECTION TIMETABLE FOR THE ARIZONA AND SOUTHWALL 37. As previously stated, the flour purchased by Bolivia was to consist of eight liftings. The first five liftings were completed by September 1, 1974. Of these five liftings, the ARIZONA had carried one lifting to Chile and the SOUTHWALL had carried two liftings. With the exception of a ruptured waste water line on the SOUTHWALL causing the wetting of some bags and some external infestation on only 12 bags of flour (ADM Ex. 89), and caustic soda contamination aboard the INCA YAH-UAR HUACA, a Peruvian liner service vessel, the first five liftings went without major problems, notwithstanding the normal torn, wet and short bags of flour which usually occur on ocean voyages. The issues to be determined herein concern the Sixth, Seventh and Eighth liftings. Of equal importance, are the chronologic dates surrounding these liftings. 38. Superintendence was responsible to sample the cargo destined for the SOUTH-WALL and ARIZONA prior to loading. Each car lot was to be sampled and weighed. Superintendence would then use the mark “S&W” signifying that the cargo had in fact been sampled and weighed. Unless Superintendence notified Provence to the contrary, the flour was loaded aboard the vessel and shipped. 39. The ARIZONA loaded September 20-27, 1974, (TJS Ex. 34) and the SOUTH-WALL loaded September 23-25, 1974. (TJS Ex. 35) 40. Samples of cargo destined for the ARIZONA and SOUTHWALL were taken by Mr. Walter Smith, a part-time employee of Superintendence, on or before Friday, September 20, 1974, and marked with the usual “S and W’s”. Due to an absence of several days from his office, Dunmire, the only Superintendence employee permitted to screen the flour for infestation did not begin his screening until September 24, 1974. The ARIZONA commenced loading on September 20, 1974, at 0800 hours. The SOUTHWALL commenced loading cargo on September 23,1974, at 0800 hours. Both dates were known to Superintendence. 41. There is no evidence indicating that the loading stevedore and/or ship personnel observed any apparent infestation while loading. The Court finds the first discovery of infestation was made by Dunmire during the late afternoon of September 24, 1974. At that time Superintendence advised the loading stevedore that some 36V2 lots (37 or 38) had been found to have signs of infestation and a “hold” was placed on the cargo. (TJS Ex. 104) 42. Before determining the source and extent of infestation that was discovered prior to loading aboard the ARIZONA and SOUTHWALL, it is significant to note the dates that these vessels were presented by Stevenson as well as to consider what effect, if any, did Bolivia’s request for a shipping delay have in the sequence of events. THE ARIZONA 43. This Liberian motor vessel was scheduled to berth in Mobile, Alabama, in late August 1974. (ADM Ex. 11, 85) Actually, the vessel arrived September 4, 1974 and entered Bender Dry Dock where she stayed until September 19, 1974. (ADM Ex. 74) Stevenson asserts that the ARIZONA encountered a “hurricane on one occasion” which necessitated repairs and caused her late presentment for loading in Mobile. 44. ADM asserts that the shipments that went aboard the ARIZONA began arriving in Mobile as early as August 12,1974, and that by August 23, 1974, there were 94 carloads of flour in Mobile which were sufficient to load the ARIZONA. (ADM Ex. 101) ADM further asserts that between September 4 and September 20, 1974, Superintendence representatives test weighed and sampled' the cargoes bound for the ARIZONA. THE SOUTHWALL 45. This Panamanian motor vessel arrived in Mobile, Alabama on September 22, 1974, and the following day began loading the flour cargo. (TJS Ex. 35) 46. The sampling of the cargoes to go aboard the SOUTHWALL, like the ARIZONA, began on September 4, and was completed on September 26, 1974. THE CONGESTION IN THE PORT OF ARICA 47. On September 12, 1974, sub-secretary Landivar telexed the Bolivian Embassy in Washington requesting a thirty day shipping delay in order to “decongest the Port of Arica.” (Bol. Ex. 39) 48. Dr. Loria inquired of Mr. Noel McHugh, Vice President of St. John as to the possibility of obtaining a delay in the shipment of the flour. Subsequently, McHugh contacted Stevenson who agreed to the delay and arranged for a later presentment for the ARIZONA, SOUTH-WALL and NEDON. After obtaining Stevenson’s consent, McHugh telephoned Gordon Stoa, Vice President of Exports at ADM and asked if ADM would arrange for a shipping delay. Stoa agreed to the delay and through Mr. Cleveland, the manager of Provence, who was able to have the “free time” at the Alabama State Docks extended so that no wharfage charges would be incurred. 49. The Bolivian request to have the shipping delayed was arranged by September 20, 1974. However, by this time there were in the warehouses in Mobile, 158 cars of flour, enough to load the ARIZONA, SOUTHWALL and parts of the NEDON. (ADM Ex. 101) Moreover, other cars were already enroute. 50. Infestation was discovered by Dunmire on September 24, 1974, wherein he found live internal infestation in 36V2 car lots. Upon reviewing the loading list Dun-mire noted that 19 of these cars had already been loaded aboard the ARIZONA and SOUTHWALL. Thereafter, Dunmire made a visual inspection of the exterior of the bags remaining in the warehouse. Although Dunmire was aware that 17V2 car lots were internally infested upon his visual check he found external infestation. Dun-mire further testified that he was unable to make a visual check for external infestation of all the bags aboard the ARIZONA and SOUTHWALL but testified that it was possible that all of the bags were externally infested. 51. According to the testimony, Dun-mire notified Provence and Mr. Kenny Patrick, Chief Clerk for Atlantic & Gulf, of the infestation. Dunmire, with a purple felt tipped pen, marked on Patrick’s loading lists (TJS Exs. 105, 106) the cars which were infested. Upon hearing from Dun-mire, Patrick stopped loading operations until further notice. The evidence shows that the following car lots, which had already been loaded aboard the ARIZONA were internally infested: WAREHOUSE CAR LOT NUMBER ARRIVAL DATE MILL 424 8/23/74 IMKC 435 8/19/74 IMKC 437 8/13/74 IMBL 438 8/13/74 IMBL 463 8/16/74 ADM 479 8/23/74 ADM 486 8/16/74 SM 487 8/10/74 SM 493 8/16/74 WS 507 8/22/74 IMKC 510 8/23/74 IMKC 517 8/21/74 IMBL 522 8/19/74 SM 537 (part TOTAL = car) 8/26/74 13% lots ADM 52. As to the SOUTHWALL, the evidence discloses and the Court so finds, that the following infested car lots were loaded aboard the SOUTHWALL: (See ADM Ex. 92) WAREHOUSE CAR LOT NUMBER ARRIVAL DATE MILL 433 8/13/74 IMKC 434 8/19/74 IMKC 455 8/21/74 WS 468 8/21/74 IMKC 482 8/14/74 ADM 512 (part car) 8/21/74 IMBL TOTAL = 5 1/2 lots 53. The Court further finds that the car lots listed below were in the warehouse destined to be loaded on the ARIZONA and SOUTHWALL; however, these lots were found infested and therefore, were “held back” and not loaded aboard the vessels. Held back from the SOUTHWALL were: WAREHOUSE CAR LOT NUMBER ARRIVAL DATE MILL 428 8/13/74 IMBL 452 8/13/74 OK 464 8/21/74 IMKC 485 8/14/74 SM 512 (part car) 8/21/74 IMBL TOTAL = 4 1/2 lots Held back from the ARIZONA were: WAREHOUSE CAR LOT NUMBER ARRIVAL DATE MILL 423 8/14/74 IMKC 450 8/12/74 OK 451 8/13/74 OK 456 8/13/74 ADM 472 8/16/74 IMBL 473 8/16/74 IMBL 476 8/13/74 ADM 488 8/16/74 SM 491 8/28/74 SM 500 8/20/74 IMBL 501 8/20/74 IMBL 521 8/19/74 SM 527 8/22/74 ADM TOTAL = 13 lots 54. Of the above-numbered car lots found to be internally infested by Dunmire on September 24, 1974, car lots 428, 437, 438, 450, 456, 476, 566, 569, 571 and 573 were previously inspected by Walter Smith, a Superintendence inspector. Bolivia maintains that lots 437 and 438 were loaded aboard the ARIZONA infested whereas, ADM contends that lots 437 and 438 were previously tested by Smith and found free of infestation. On more than one occasion during the course of this trial, the Court specifically stated to counsel for ADM that Walter Smith should testify. However, Smith never appeared at the trial and no explanation was offered to explain his absence. 55. Car lots 428, 450, 451, 456 and 476 were held back from the ARIZONA and SOUTHWALL and after fumigation were loaded on the NEDON. As will be noted below, Lots 566, 569, 571 and 573 were originally designated for the NEDON and after fumigation were loaded aboard the vessel. WAREHOUSE FUMIGATION AND FUMIGATION ABOARD THE SOUTH-WALL AND ARIZONA 56. Sequentially, upon the discovery of infestation, Dunmire notified Mr. Cleveland of Provence, in turn, Cleveland called ADM and informed them of the infestation. Mr. Stoa advised Cleveland to make arrangements to fumigate the car lots in the warehouse. ADM asserts that although ADM agreed to fumigate the lots in the warehouse, ADM did this to “maintain good customer relations, although he felt no obligation to do it.” 57. Immediately thereafter, Mr. Crismon of Page & Jones received a call from Cleveland informing him of the infestation. Crismon notified Armour of Page & Jones. Armour learned that some of the cargo that had been loaded aboard the ARIZONA and SOUTHWALL was infested. Armour notified Stevenson in New York and then spoke with Cleveland again about what action should be taken since they were to post the labor gang in order to have longshoremen on the job site the next day if the flour was to be off loaded. 58. On behalf of Stevenson, Page & Jones sent the following telex to Provence: PAGE JONES MOB 9/24/75 * * * * SEPT 24, 1974 ON BEHALF OF OUR PRINCIPALS, OWNERS AND/OR OPERATORS OF THE M/S SOUTHWALL AND M/S ARIZONA, WE HAVE TO ADVISE YOU THAT YOUR PRINCIPALS, THE SUPPLIERS AND/OR SHIPPERS OF CARGOES OF BAGGED FLOUR BEING LOADED ONTO SAID VESSELS, WILL BE HELD LIABLE FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES, BROUGHT ABOUT BY THEM AND/OR THEIR AGENTS HAVING RELEASED SAME FOR LOADING ON BOARD VESSELS POSSIBLY INFESTED WITH WEEVILS OR OTHERWISE NOT IN ORDER TO LOAD. WE MUST ADVISE THAT BOTH YOU AND YOUR PRINCIPALS WERE WELL AWARE THAT BOTH VESSELS ARE IN PORT AND HAVE BEEN LOADING FOR THE PAST SEVERAL DAYS AND NO ADVERSE CONDITIONS WERE REPORTED UNTIL LATE THIS P.M. PAGE & JONES, INC. AGENTS M/S SOUTHWALL & M/S ARIZONA (TJS Ex. 103) 59. On September 25, 1974, St. John telexed the following to Gordon Stoa of ADM: RE: WEEVILS INFESTATION IN BAGGED FLOUR VESSELS “SOUTHWALL” AND “ARIZONA” PER OUR TELEPHONE CONVERSATION THIS MORNING WE HAVE RECEIVED THE FOLLOWING TWX FROM STEVENSON, THE OPERATORS OF BOTH REFERENCED VESSELS. QUOTE: WEEVILS HAVE BEEN FOUND IN THE FLOUR LOADED ON BOTH M/S ARIZONA AND M/S SOUTHWALL. THIS NECESSITATES FUMIGATING BOTH VESSELS WHICH IS FOR SUPPLIERS ACCT. ALSO ANY VESSEL TIME LOST ACCT. FUMIGATING IS FOR SUPPLIERS ACCT. INCLUDING LODGING AND FEEDING OF THE CREW IF THEY MUST BE REMOVED FROM THE VESSEL DURING THE FUMIGATING. (Bol. Ex. 24) In addition the St. John telex to Stoa also included the telex cited above sent by Page & Jones to Provence. St. John as agents for the Embassy of Bolivia requested that ADM advise St. John as soon as possible regarding arrangements being made to fumigate the vessels. (Bol. Ex. 24) 60. In Stevenson’s counter-claim against ADM, Stevenson claims, among other things, that on September 25, 1974, ADM agreed to pay for the cost of fumigation of the SOUTHWALL and ARIZONA. It was the testimony of Mr. Thomas J. Stevenson, President of Stevenson Lines, that the agreement to have ADM fumigate the vessels was made through Noel McHugh of St. John. Mr. Stevenson further testified that this agreement occurred during a tripartite telephone conversation between McHugh, Stevenson and Stoa. At the trial, Stoa testified that no agreement to fumigate the SOUTHWALL and ARIZONA had been made by ADM. McHugh testified that while he recalled having been involved with a telephone conversation with both Stevenson and Stoa on September 25, 1974, no agreement was made on that date and at the time of the telephone conversation he was not negotiating any agreement. Moreover, Cleveland of Provence, and Armour of Page & Jones, testified that ADM did not agree to fumigate the vessels. 61. The evidence shows that Armour of Page & Jones spoke with Mr. Hurd, the exterminator from A & P Termite and Pest Control Co., (A & P Termite) and the fumigation of the vessels was arranged and did take place upon completion of the loading of the SOUTHWALL and the ARIZONA. It is further uncontradicted that Armour had been directed by Mr. Ivan Ellis, Vice President of Operations for Stevenson, to fumigate the vessels and that Hurd was paid by Page & Jones as agents for Stevenson. (ADM Exs. 45, 46) 62. Although Cleveland of Provence contacted Hurd of A & P Termite to come to the docks to discuss the fumigation of the 17V2 car lots in the warehouse, there is no evidence to support the finding that Cleveland ordered and/or directed Hurd to fumigate the flour on board the SOUTH-WALL and ARIZONA. Clearly, the evidence shows that Armour as directed by Ellis contacted Hurd and made the necessary arrangements to fumigate the vessels. In support of its position that ADM never agreed to fumigate the SOUTH-WALL and ARIZONA, ADM relies on a telex from Stevenson to ADM dated September 27, 1974, wherein Stevenson telexed the following: WE WISH TO ADVISE YOU THAT WE WILL NOT SAIL M/S SOUTHWALL OR M/S ARIZONA FROM MOBILE WITH THE FLOUR CARGOES LOADED FROM YOUR SUPPLY UNTIL YOU AGREE TO PAY THE FUMIGATION AND ATTENDANT CHARGES RE CREW ACCOMMODATION AND FEEDING PLUS SHORE POWER AND WATCHMEN WHICH EXPENSES WERE OUTLINED TO YOU YESTERDAY. IN ADDITION WE WILL EXPECT TO BE PAID DETENTION CHARGES IN THE AMOUNT OF $3,000 PER DIEM OR PRORATA FOR PART THEREOF FOR THE SOUTHWALL AND $5,000 PER DIEM OR PRORATA FOR PART THEREOF FOR THE ARIZONA FROM THE TIME OF COMPLETION OF LOADING UNTIL VSLS SAIL WITH OUR DEMANDS SATISFIED WITH A LETTER OF INDEMNITY CONCERNING INFESTATION AND A PROMISE TO PAY THE EXPENSES REFERRED TO ABOVE WITHIN 10 DAYS OF PRESENTATION, SUCH BILLS TO BE VERIFIED AS TO TIME INVOLVED BY YOUR AGENT. LETTER OF INDEMNITY REQUIRED IS FURNISHED BELOW. IN ACCORDANCE WITH OUR NUMEROUS TELEPHONE CONVERSATIONS AND TELEXES OF SEPTEMBER 24 and SEPTEMBER 25 AND IN CONSIDERATION OF THE ISSUANCE OF CLEAN BILLS OF LADINGS AND/OR DOCK RECEIPTS WE THE UNDERSIGNED ADM AGREE TO PAY ALL EXPENSES INCURRED IN FUMIGATING THE CARGO OF BAGGED FLOUR PRESENTLY ON BOARD THE M/V SOUTHWALL AND M/V ARIZONA AND ANY OTHER EXPENSES REASONABLY INCURRED AS A RESULT OF SAID INFESTATION AND TO HOLD HARMLESS WESTERN PACIFIC SHIPPING CORP., ORAM S. A. OF PANAMA, T. J. STEVENSON AND CO., INC. TIMECHARTERED OWNER OF M/V ARIZONA, THE STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION LTD., THE M/V ARIZONA AND M/V SOUTHWALL, HER OWNERS AND UNDERWRITERS AT INTEREST FROM ANY AND ALL LIABILITY FOR INSECT INFESTATION OF THE BAGGED FLOUR LOADED ABOARD THE M/V ARIZONA AND M/V SOUTHWALL CONSIGNED TO THE ORDER FOR ACCOUNT OF MINISTERIO DE INDUSTRIA Y COMMERCIO LA PAZ, BOLIVIA, AND FROM ANY AND ALL DAMAGES TO SUCH CARGO RESULTING FROM SUCH FUMIGATION OF FLOUR. WE WOULD FURTHER ADVISE YOU THAT THE M/S ARIZONA IS COMMITTED TO A CONTRACT IN EQUADOR BASED UPON A NORMAL DURATION EXPECTATION FOR THE CURRENT VOYAGE AND WE WILL IN ADDITION HOLD YOU LIABLE FOR ANY DAMAGES WE INCUR DUE TO YOUR INACTION IN THE ABOVE MATTER WHICH MAY CAUSE THE CONTRACT REFERRED TO ABOVE TO BE CANCELLED. T. J. STEVENSON AND CO., INC. AS AGENTS FOR WESTERN PACIFIC SHIPPING CORP. AND ORAM S.A. (TJS Ex. 44) 63. ADM further relies on a telex dated September 28, 1974, sent by Stevenson through Page & Jones to ADM which reads: M/V ARIZONA AND M/V SOUTHWALL SINCE WE HAVE BEEN UNSUCCESSFUL IN REACHING AGREEMENT ON OUR REQUEST FOR A LETTER OF INDEMNITY AND COMPENSATION FOR COSTS AS OUTLINED IN NUMEROUS CONVERSATIONS AND TELEXES, WE ARE OBLIGED TO CARRY OUT COUNSELS ADVICE AND DISCHARGE THE CARGO IN BOTH VESSELS. DISCHARGING WILL COMMENCE MONDAY, SEPTEMBER 30TH AND ALL COSTS INVOLVED WILL BE FOR ADM ACCOUNT. (TJS Ex. 45) Immediately upon receipt of the September 28th telex from Page & Jones, ADM telexed Mr. Ellis of Stevenson and informed them that ADM rejects any and all claims with respect to insect infestation aboard the SOUTHWALL and ARIZONA. From the foregoing the Court finds that there is insufficient evidence to substantiate the Stevenson claim that an agreement existed between Mr. Stevenson and ADM to pay for the costs and expenses related to the fumigation of the SOUTHWALL and ARIZONA. AN ASSURANCE 64. Originally, Stevenson’s second claim against ADM for the costs and expenses associated with fumigation of the SOUTH-WALL and ARIZONA was that ADM assured Stevenson that the cargoes on the vessels “would be acceptable” to Bolivia following fumigation and that in reliance on this assurance, Stevenson arranged for the fumigation of the vessels at a total cost of $24,277.57 which Stevenson paid and that ADM declined to reimburse Stevenson for the cost of this fumigation. (TJS Ex. 42) Subsequently, Stevenson submitted an amendment to its counterclaim against ADM. Stevenson moved the court to allow it to amend Paragraph VIII of its counterclaim by striking the words “would be acceptable” therefrom and substituting thereof “met the standards of ADM’s contract with” Bolivia. In opposition to this amendment ADM asserted that the amendment came entirely too late with no excuse for the delay and its allowance would result in a great injustice and prejudice to ADM. 65. On February 17, 1976, the trial in this cause began. On February 26, 1976, Stevenson rested, subject only to Stevenson’s right to offer additional testimony as to damages. At that time ADM filed and argued a motion for judgment pursuant to Rule 41 of the Federal Rules of Civil Procedure. Said motion was taken under submission by the Court. However, on March 4, 1976, Stevenson moved the Court for leave to amend its complaint. In support of its motion to amend, Stevenson asserts that the amendment serves the purpose of correcting an earlier misunderstanding of counsel and that it reflects actual facts as developed by discovery. This motion to amend was taken under submission by the Court for an extended period in order to ascertain the effect of said amendment. Admittedly, the motion to amend came at the eleventh hour of this cause. Nevertheless, the Court was of the opinion that such an amendment would come as no surprise to ADM. Moreover, in the instant case, the litigation has been complicated and the Court has liberally allowed all parties to amend. Therefore, on August 10, 1976, the Court granted Stevenson’s motion to amend its counterclaim against ADM. 66. The only evidence offered in support of Stevenson’s claim was the testimony of Mr. Stevenson. In his testimony, Mr. Stevenson specifically stated that Mr. Stoa of ADM had assured him on a number of occasions that the flour met contract specifications. However, Mr. Stevenson did not testify that Stoa told him that the flour, after fumigation, met contract specifications. Moreover, the position continually advanced by Mr. Stoa was that ADM always had delivered good clean flour to Mobile. ADM further asserted throughout the trial that once the flour was inside the warehouse, ADM had completed its delivery. Based on all the evidence, the Court finds that Stoa did not tell, or convey the impression to Stevenson that the flour, after fumigation, met contract specifications. Furthermore, assuming that the assurances as alleged by Stevenson were to the effect that the cargoes, after fumigation met contract specifications, the evidence demonstrates that the condition of the cargoes allegedly assured by ADM as meeting its contractual commitment was different from the condition of the cargoes aboard the SOUTHWALL and ARIZONA upon arrival in Arica. In sum, the bags of flour that contained infestation by live weevils which prompted Bolivia to initially refuse to take the cargo would most assuredly not meet contract specifications. Therefore the Court is of the opinion that even construing the alleged assurance or assurances in the strongest possible light for Stevenson, it could not amount to an assurance that the flour containing live weevil infestation (Bol. Ex. 1) would meet contract specifications. The Court finds that Stevenson has failed to sustain its burden of proving the assurance and reliance claimed in its counterclaim against ADM. IT NEVER RAINS IN ARICA AND THE ROUNDABOUT DISCHARGE 67. Following the fumigation of the ARIZONA and SOUTHWALL, and having been issued clean bills of lading by Stevenson (TJS Exs. 38, 39) both vessels sailed from Mobile on September 30, 1974, and arrived in Arica on Saturday, October 12, 1974. (ADM Exs. 73, 74) 68. On Monday, October 14,1974, at 8:30 a. m., the discharging of the two vessels began. The ARIZONA unloaded about 1,000 bags into Warehouse No. 3 and the SOUTHWALL unloaded approximately 800 bags in an open concrete area. In an effort to blunt ADM’s attack concerning the storing of flour cargo in an open area, Bolivia asserts that since Arica has a desert-like climate the cargo is not affected by rain. Admittedly, while rain may be absent from the Arican geography, wind is not. The testimony of Mr. Eduardo Mino discloses that when the flour cargoes were ultimately discharged from the SOUTHWALL and ARIZONA, it was necessary to cover the cargoes to avoid contamination caused by the wind, such as the spreading of dust, and from the dejections of sea birds that flew above the exposed bags of flour. (ADM Ex. 155) 69. As the cargo from both vessels was being discharged infestation was detected. Mr. Oscar Claure, head of the Bolivian Customs Agency in Arica, AADAA, testified that he received a telephone call at his office concerning the cargo infestation. Claure further testified that he proceeded to the Port of Arica where he examined the cargoes that had been unloaded from the vessels. Upon examining the bags of flour, Claure found live and dead weevils. 70. Shortly thereafter, Claure and Mar-cello Quiroga, Bolivian Chief of Operations of AADAA, boarded the ARIZONA and SOUTHWALL to check for infestation. Upon examination of the vessels, Claure testified that he immediately consulted Landivar by telephone and advised him of the infestation of live weevils on the SOUTHWALL and ARIZONA. Landivar ordered Claure to reject the ARIZONASOUTHWALL cargoes. The telex from Landivar to Claure on October 15, 1974, states: . . . CONFIRMING MY INSTRUCTIONS OF YESTERDAY ABOUT ARRIVAL LOTS 1645 SOUTHWALL 4056 ARIZONA SINCE BOTH LOTS ARE INFESTED THEY MUST BE REJECTED THROUGH SAME VESSELS STOP — WE ARE TRANSMITTING CONTEXT TO SHIPPING COMPANY STEVENSON LINES STOP — GENERAL MANAGER HOME ASSURANCE IS GOING THERE TO COMBINE THIS OPERATION. (Bol. Ex. 40) It is stipulated that at the time that Bolivia had stopped the discharging of the ARIZONA-SOUTHWALL cargoes, Bolivia had already paid the purchase price and the freight. STEVENSON’S COUNTERCLAIM AGAINST BOLIVIA FOR DEMUR-RAGE, DELAYS AND LOST PROFITS ON THE ARIZONA AND SOUTHWALL 71. Stevenson seeks to recover against Bolivia for frustrating the discharge of the ARIZONA-SOUTHWALL cargoes, resulting in their unnecessary detention in South America. Stevenson maintains that Bolivia’s refusal to discharge was arbitrary and unreasonable which resulted in the delays of the ARIZONA and SOUTHWALL for a period of twenty-three (23) days in that the vessels were forced to anchor off the port with the cargoes of flour still in the holds. 72. Stevenson further maintains that on prior voyages portions of the flour cargoes had been damaged and on each occasion, the damaged cargo was discharged promptly by Bolivia and then damage claims were resolved. Stevenson contends that the discharging of cargo whether damaged or not is the normal commercial method of handling cargo loss and therefore, it is unreasonable to inactivate the carrying vessels resulting in the vessels being forcibly idled. 73. In opposition to Stevenson’s claim, Bolivia argues that when Claure rejected the infested cargo the Chilean port authorities “simultaneously” order the ARIZONA and SOUTHWALL out of the port of Arica since they were fearful that other cargoes would become infested as a result of the infestation on both vessels. The factual background surrounding the Stevenson counterclaim is essential to a determination of the issues involved herein. On Friday, March 19, 1976, sub-secretary Landivar was on the witness stand and he testified for the first time that it was his decision to reject the ARIZONA-SOUTH-WALL cargoes and to refuse to discharge the vessels. It was at this time that he took from his pocket, Bol. Ex. 40, heretofore discussed in Finding 70 above. (See Finding 77 noted below) Upon hearing this testimony for the first time that the refusal to discharge the cargoes originated from Bolivia, counsel for Stevenson gave notice to Bolivia of its intended amendment by making the following statement in open court: In view of the documents produced by Landivar- — and still not being clear as to the total import and without withdrawing any of our previous claims against other parties — and while Landivar and Loria are here — we put the Bolivians on notice of our intention to file an alternative counterclaim against Bolivia for expenses of the detention of the ARIZONA and SOUTHWALL because of the refusal of Bolivia to permit discharge of the ARIZONA and SOUTHWALL in the routine manner and to make routine claims for damages without unnecessarily tying up the ships. 74. On Friday, March 19, 1976, the trial recessed until April 5,1976, however, due to scheduling conflicts of counsel and the Court, trial was not reconvened until April 19, 1976. 75. On April 2, 1976, during the trial recess, Stevenson filed its amended answer and counterclaim against Bolivia. On April 14,1976, Bolivia filed a motion to strike the amended answer and counterclaim of Stevenson, arguing that: Stevenson failed to obtain permission of the Court before amending its answer and filing its counterclaim; that the filing of said counterclaim was not in compliance with the provisions of Rule 13 (F.R.C.P.); that it was untimely and was not filed until five weeks of trial of this action. In addition Bolivia asserted that she would be unduly prejudiced and suffer irreparable harm in that Bolivia had already completed the testimony of eight of its nine factual witnesses, three of which had returned to Bolivia, one had returned to Chile, and one witness had returned to Miami, Florida. In short, Bolivia was not in a position to defend the Stevenson counterclaim. 76. On April 16, 1976, Stevenson finally filed its motion for leave to amend, relying on its oral request made on Friday, March 19, 1976, in open court. The above-styled matters were taken under advisement by the Court. COAT POCKET DISCOVERY AND THE PRODUCTION DILEMMA 77. Aware of the prejudicial nature of allowing such a counterclaim, the Court reserved its ruling until after hearing post-trial arguments on the proposed findings of fact and conclusions of law. Subsequently, on August 4, 1976, the Court granted Stevenson’s motion to amend along with its amended answer and counterclaim. Conversely, the Court denied Bolivia’s motion to strike the amended answer and counterclaim. This entire cause has been filled with requests for production and motions for production by counsel for all parties. Moreover, the tools of discovery have been burdened with language translations and geographic distance. Although counsel for all parties diligently attempted to meet production requests as set by the Court’s timetable this was not always possible. Another added ingredient that delayed discovery was the appearance by Bolivia in this lawsuit after Stevenson and ADM had conducted extensive discovery for approximately ten months. Interestingly enough, documents were produced during the course of the trial. It is significant to note that Landivar, the former Bolivian sub-secretary, produced documents from his coat pocket during his testimony supporting his decision to reject the ARIZONA-SOUTHWALL cargoes. 78. Having set out the background giving rise to the Stevenson counterclaim against Bolivia, the issue squarely before the Court is whether Bolivia wrongfully refused to discharge the cargoes, and is therefor liable for demurrage, detention and lost profits. Upon reviewing the evidence the Court finds there is insufficient evidence to support Bolivia’s contention that as Claure rejected the infested cargo, the Chilean port authorities “simultaneously” ordered the vessels out of the Port of Arica. The evidence shows that Landivar ordered Claure to refuse the shipment of flour aboard the SOUTHWALL and ARIZONA on October 14, 1974, and then Landivar confirmed his order by telex to Claure the following day. (Bol. Ex. 40) Ultramar, Stevenson’s agent in Arica, attempted to notify Stevenson by phone on October 14,1974, and later sent two telexes to Stevenson on October 15,1974, informing Stevenson of the Ministry’s oral and written instructions to AADAA not to receive the ARIZONA-SOUTHWALL cargoes. (TJS Exs. 26, 71) 79. The argument raised by Bolivia that the Chilean authorities ordered the vessels away from the docks is not supported by the evidence and the Court so finds. Assuming however, that the Chilean authorities ordered the vessels out of the Port of Arica, this finding would be immaterial since Landivar ordered the stoppage of the flour cargoes and the evidence shows that only Landivar was in a position to say when the discharging could be resumed. Accordingly, the Court finds that the refusal of Bolivia to permit its own prepaid cargo to be discharged was an arbitrary and unreasonable decision by- Bolivia, and therefore, Bolivia is liable to Stevenson for the value of the ARIZONA and SOUTH-WALL’S time and necessary expenses resulting therefrom. THE EIGHTH LIFTING AND THE VESSEL NEDON 80. The vessel NEDON began loading flour cargo on October 15, 1974, and completed loading on October 17, 1974. (TJS Ex. 3) However, prior to the vessel being loaded, Superintendence had found more car lots which were infested and subsequently had them fumigated by A & P Termite under the direction of Hurd. 81. On September 20, 1974, when ADM advised the Ministry that the shipping delay it requested would be acceptable, there were already 33 car lots of flour at the Port of Mobile designated to be loaded aboard the NEDON and additional cars were en route from the mills. The balance of the flour arrived in Mobile between the dates of October 2, and October 14, 1974, although one car lot did arrive on October 17, 1974. (ADM Ex. 101) These car lots were tested and sampled by Superintendence between October 12 and October 17, 1974. 82. It should be noted that some 17V2 lots that were originally intended to be loaded aboard the SOUTHWALL and ARIZONA were “held back” and retained in the warehouse as of September 24, 1974, when Dunmire first found infestation. The 17V2 lots were placed in he warehouse. Superintendence did not have the entire cargo in the warehouse fumigated, instead the known infested lots were pulled some several feet from the other cargo and fumigated. 83. The actual fumigation of the warehouse lots did not occur for several days after discovery. During this period an additional 12 or 13 lots were found to be infested while in the warehouses. These additional lots were also fumigated. 84. Subsequently, the 171/2 car lots were fumigated and loaded aboard the NEDON. A question is presented as to whether 12 or 13 additional car lots were loaded onto the NEDON with one of the car lots not having been fumigated. The evidence discloses that the fumigation of the additional car lots were carried out pursuant to Dunmire’s filed report. The field report listed only 12 cars as infested. Therefore, one externally infested car lot, Number 598, was loaded aboard the NEDON without having been fumigated and this Court so finds. 85. In an effort to prevent the loading of infested cargo, as had occurred with some twenty lots aboard the ARIZONA and SOUTHWALL, Page & Jones requested that Provence furnish it with written releases signifying that the cargo was “ok for loading”. The Court finds that all cargo loaded onto the NEDON was cleared in writing by Superintendence including the additional carload lots found to be infested and later fumigated. 86. Following these inspections and clearances, the cargo, consisting of 81,193 bags, was then loaded on the NEDON on October 15, 16, 17, 1974. (TJS Ex. 3) CIRCUMSTANCES SURROUNDING THE NEDON CLAIMS: REASONED JUDGMENT 87. ADM’s position is that Stevenson failed to use “reasoned judgment” in loading the NEDON cargo. The evidence discloses that the vessel commenced loading in the Port of Mobile on October 15, 1974, at approximately 8:00 a. m. It is undisputed that Stevenson knew that 17V2 lots of flour to be loaded on the NEDON had previously been “held back” from the SOUTHWALL and ARIZONA and fumigated in the warehouse by ADM due to the infestation that was found on September 24, 1974. 88. The record reflects that due to the previous infestation on the loading of the ARIZONA-SOUTHWALL cargoes, Stevenson had demanded and received from Superintendence written releases attesting that the NEDON flour had been cleared for loading. (TJS Ex. 7) 89. The record further reflects that Stevenson on October 15, 1974, had notification in the form of a telex from its representative in Arica advising of the discovery of infestation of the ARIZONA-SOUTH-WALL cargoes and the refusal by Bolivia to receive this cargo. (TJS Ex. 71) The telex also advised that the vessels were directed to unberth from the docks and anchor outside the Port of Arica. This information was conveyed by Mr. James Dowling, Claims Manager for Stevenson, to Mr. Bradshaw of LaMorte Burns, Steamship Mutual’s American correspondent. In addition, on October 15, 1974, the evidence discloses that Mr. Ellis, Stevenson’s Vice President of Operations had noted that the Stevenson underwriters had been advised of the NEDON situation and that Ellis was waiting to hear from them concerning instruction as to who should inspect the flour. (TJS Ex. 66) In sum, ADM maintains that with this information available to Stevenson on October 15, 1974, Stevenson should not have loaded the cargo. The Court is unable to agree with this argument as the evidence does not support a finding that Stevenson acted unreasonably or had sufficient knowledge on this date. 90. ADM contends that even if Stevenson did not have sufficient information on October 15, 1974, then in the exercise of reasoned judgment, Stevenson should