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March 15, 1973

Peter ROSENBRUCH, Plaintiff,

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

This is a suit in admiralty to recover $102,917.08 for cargo admittedly lost in trans-Atlantic transit. The facts are not in dispute, and the parties have cross-moved for partial summary judgment on the issue of limitation of liability, posing another variant of the package limitation issue considered recently by the courts of this circuit in, among others, the cases of Leather's Best, Inc. v. S.S. MORMACLYNX, 451 F.2d 800 (1971), and Royal Typewriter Co., Division of Litton Business Systems, Inc. v. M/V KULMERLAND, 346 F. Supp. 1019 (S.D.N.Y. 1972).


 Desiring to transport his household goods from New York to Hamburg, plaintiff-shipper contracted with the Seven Santini Bros., Inc. ("Santini"), a firm of international movers, which in turn arranged for carriage on Voyage 42 of the SS CONTAINER FORWARDER, a ship designed only for container carriage, and used by its owners and operators, defendant American Export Isbrandtsen Lines, Inc. ("Export"), for New York-Northern Europe crossings.

 Santini requested and was furnished without charge a container, No. 18333, measuring the standard 40' X 8' X 8', by Container Marine Lines, a division of Export. Overland movement of No. 18333 was at shipper's expense. Santini loaded and sealed the container and delivered it to Export in New York City. A bill of lading dated January 8, 1971 was made out, with Rosenbruch as the consignee.

 The bill of lading indicated under the column entitled "No. of Cont. or Other Pkgs." the number 1, and the words "shipper's load and count" were stamped in block letters under the typed-in description of the goods to be transported. Also on the bill, written in by Santini, was the proviso "stow under deck only". This the carrier subsequently crossed through, apparently indicating that it was to be disregarded.*

 No. 18333 was in fact stowed, not under deck, but on a weather deck, and it, along with 31 other containers similarly stowed, was lost when the SS CONTAINER FORWARDER encountered heavy seas en route to Hamburg.

 On these facts plaintiff seeks to recover $102,917.08, the asserted value of the cargo shipped. Defendant, while not admitting liability, claims that container No. 18333 qualifies as a "package" under § 4(5) of the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C.A. § 1304(5), which by its express terms would limit any recovery in this case to $500. Summary judgment, more in the nature of declaratory relief at this point in the proceedings, is prayed by both parties as to the applicability of § 4(5).


 Section 4(5) of COGSA is a theoretically straightforward provision, designed to prevent carriers, presumed to have the superior bargaining position, from contracting altogether out of liability for cargo loss or damage. A lower limit in this regard of $500 per "package" is imposed. *fn1"

 But § 4(5) was enacted in 1936, well before the advent of container shipping, when $500 at least approximated the value of the average parcel shipped. Today, as a result of the widespread movement by the world's merchant marine to "containerization", large numbers of parcels are placed in a single container, a metal box normally measuring 40' X 8' X 8', before being loaded on board ship. *fn2"

 The inevitable question, whether a container is a package for § 4(5) purposes, was considered most recently by the Court of Appeals for the Second Circuit in Leather's Best, Inc. v. SS MORMACLYNX, 451 F.2d 800 (1971), where it was determined that it was not. The container there was delivered to the shipper under the supervision of the carrier's agent, the truck driver. *fn3" The driver gave the shipper a receipt indicating the number of parcels loaded, and the bill of lading itself bore the typed-in notation "1 container s.t.c. 99 bales of leather." *fn4"

 These facts, it was held, indicated the understanding of all concerned that the individual bales were the packages shipped, and that the container was essentially a device for the carrier's convenience in handling and stowage. *fn5" And, also found relevant, the carrier therein could not deny knowledge of both the nature of the cargo and number of packages employed to ship it. *fn6"

 Less participation by the carrier or less knowledge on its part as to the contents of a container, the opinion noted, would present an entirely different case. *fn7" Chief Judge Friendly, writing for the court, expressly set out as possible material variations the shipper packing a container already on its premises and receiving for it a bill of lading reciting only 1 under the column left ...

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