F A L L 2 0 1 3
11
Katrina. Consequently, the Court ex-
plained that NOCS was fully aware of the
risks to AJC's cargo from rising waters.
Although NOCS took some reasonable
precautions to protect the cargo primar-
ily from wind, NOCS failed to take any
precautions with respect to protecting
the cargo from flood waters, a known and
foreseeable risk. Accordingly, the Court
ruled that AJC was entitled to recover for
the damage sustained to its cargo.
Following
AJC v. NOCS, it is now
clearer that bailees, including marine
terminal operators, should assess all
risks that goods in their care may
be exposed, particularly during the
approach of tropical storm systems, and
incorporate reasonable precautions into
their preparedness plans in order to
protect the goods from those risks.
Also instructive in this case for the
practitioner is the recognition of the
shifting burden of proof. Although a
plaintiff such as AJC generally carries
the burden of proof in civil litigation, un-
der the law of bailment, AJC was only re-
quired to establish a prima facie case of
liability on the part of NOCS. It was then
NOCS's burden to prove by a preponder-
ance of the evidence that it exercised
reasonable care to protect the cargo in its
care. Having failed to carry its burden of
proof, NOCS was found liable.
1 It was undisputed that the relationship between NOCS
and AJC was one of bailment. The relationship of a
warehouseman toward his customer is that of a compen-
sated depositary [under Louisiana Civil Code art. 2926,
et seq. ]. See, e.g., Colgin v. Security Storage & Van Co.,
208 La. 173 (La. 1945). Under Louisiana law, it is well-
settled that a warehouseman/bailee, such as NOCS, has
a duty to use such care in regard to goods under its care
as a reasonably careful owner of similar goods would
exercise, and is bound to fulfill its obligations with the
same diligence and prudence in caring for the things
under its care that it uses for its own property. See,
Cook & Co. v. Gulf Shipside Storage Corp., 177 F.Supp.
869, 870 (E.D.La.1959), affirmed 276 F.2d 707 (5th
Cir, 1960); Also see, Acme Steel Co. v. A. J. Warehouse,
Inc., 212 So.2d 271 (La.App. 4th Cir.1968); Folger
Coffee Co. v. M/V Medi Sun, 492 F.Supp. 988, 992
(E.D.La.1980); La. Civ. Code Art. 2930.
2 It was undisputed that Hurricane Gustav for the pur-
poses of this case was not an unforeseen or unexpected
event as to constitute a cas fortuit ou force majeure
under Louisiana law.
3 See e.g., Cook & Co. v. Gulf Shipside Storage Corp., 177
F.Supp. 869, 870 (E.D.La.1959), affirmed 276 F.2d 707
(5th Cir. 1960); Also see, Handyman Show, Inc. v. Em-
mis Television Broadcasting, L.P., 2008 WL 4401364
*4 (E.D.La. Sept. 24, 2008) (citing Nat'l Auto. Ins. Co.
v. Champ's New Orleans Collision Ctr., 06-1144, p.
3 (La.App. 4th Cir. 2/28/2007), 954 So.2d 197, 199;
Harper v. Brown & Root, Inc., 391 So.2d 1170, 1173
(La.1980).