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TOYOMENKA, INC. v. S.S. "TOSAHARU MARU"

August 7, 1974

TOYOMENKA, INC., Plaintiff,
v.
S.S. TOSAHARU MARU, her engines, boilers, etc. and v. YAMASHITA-SHINNIHON STEAMSHIP CO., LTD., d/b/a Y.S. LINE, Defendant and Third Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., INC. and McROBERTS PROTECTIVE AGENCY, INC., Third Party Defendants. MARUBENI-IIDA (AMERICA), INC. and MURILSPUN LTD., Plaintiffs, v. S.S. TOSAHARU MARU, her engines, boilers, etc., and v. YAMASHITA-SHINNIHON KISEN K.K., YAMASHITA-SHINNIHON STEAMSHIP CO., LTD., and TEXAS TRANSPORT & TERMINAL CO., INC., Defendants, and YAMASHITA-SHINNIHON STEAMSHIP CO., LTD., Third Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., INC. and McROBERTS PROTECTIVE AGENCY, INC., Third Party Defendants


Kevin Thomas Duffy, D.J.


The opinion of the court was delivered by: DUFFY

KEVIN THOMAS DUFFY, D.J.

These two consolidated actions were tried to the Court sitting in admiralty, as both involve the loss of certain goods shipped on the S.S. Tosahura Maru which arrived from Japan at Pier 6, Brooklyn, on or about July 27, 1970. Plaintiff Toyomenka, Inc. (hereinafter "Toyomenka") asserts a claim for the non-delivery of 12 cartons of woolen piece goods shipped under bill of lading YN-133, and 16 cartons of woolen piece goods shipped under bill of lading YN-134. Plaintiffs Marubeni-Iida (America), Inc. and Murilspun Ltd. (hereinafter collectively "Marubeni") claim non-delivery of 15 bales of woolen piece goods shipped under bill of lading KN-99.

 Yamashita-Shinnihon Steamship Co., Ltd. (hereinafter "Y.S. Line") is the owner of the "Tosahura Maru" and contracted with the International Terminal Operating Co., Inc. (hereinafter "ITO") for the latter to discharge, take care, control, store, protect and deliver the goods consigned to New York on the Tosahura Maru, including the cartons and bales at issue in this action. ITO, in turn, contracted with McRoberts Protective Agency, Inc. (hereinafter "McRoberts") to provide guards and protective service at Pier 6.

 It is undisputed that the bills of lading under which the cartons and bales at issue were shipped are subject to the Carriage of Goods by Sea Act (46 U.S.C. § 1300 et seq.) and its liability limitations, not only by their terms but also by operation of law. It is also agreed that each of the cartons or bales constitutes a package within the meaning of the bills of lading and the Carriage of Goods by Sea Act.

 In the pretrial order the plaintiffs amended their complaints to allege a direct liability to them because of the negligence of ITO and McRoberts. Y.S. Lines also asserts a claim for indemnity, including attorney's fees and disbursements against ITO and McRoberts. In turn, ITO asserts a similar claim for indemnity against McRoberts. McRoberts has cross-claimed against ITO.

 ITO and McRoberts disclaim any liability and assert that even if liable they are entitled to the package limitation of COGSA. They further defend against the direct claim of the plaintiffs on the basis that it is barred by the Statute of Limitations and that this Court lacks jurisdiction over the subject matter of the suit.

 All of these legal gyrations arise from a very simple set of facts. Plaintiffs were the owners of certain bales and cartons of piece goods shipped from Japan to Brooklyn. Forty-two out of the 43 bales and cartons were unloaded from the Tosahura Maru, but 1 carton under bill of lading KN-99 consigned to Marubeni was not unloaded. Y.S. Lines admits liability for the loss of this carton but urges that the COGSA $500 limitation be applied to the loss. I agree that the limitation should so apply.

 The other 42 cartons and bales were placed by ITO in the bale area of the shed on Pier 6. The bale area was protected by a guard employee of McRoberts whose responsibility included making sure that the packages were taken out of the area only upon presentation of an order. McRoberts also supplied a guard on each of the two loading platforms where the trucks came to pick up merchandise on Pier 6. Two other McRoberts guards were also on the dock during working hours, one patrolling and the other stationed in the crib area. There was also a McRoberts guard at the gate outside the dock.

 During non-working hours there was a McRoberts guard at the gate and another inside the locked pier.

 On August 1, 1970, when the cargo consigned to New York was completely unloaded, the goods in question were discovered to be missing. The how and the wherefore of their disappearance remains a total mystery. It is clear, however, that on the days between the time that the Tosahura Maru arrived and the goods were discovered missing there were at least 40 longshoremen working on the dock and various and sundry truckmen coming to pick up goods at the loading platform on the dock.

 The first question (and perhaps the most important one from an economic point of view) is whether ITO and McRoberts are entitled to the COGSA limitation of liability as expanded by the bills of lading. Each of the three bills of lading contains the following clause:

 
"Without prejudice to any other provision hereof it is hereby expressly agreed that all servants, agents and independent contractors including in particular, but not by way of limitation any stevedores used or employed by the Carrier for the purpose of or in connection with the performance of any of the Carriers obligations under the Bill of Lading shall in consideration of their agreement to be so used or employed have the benefit of all rights defences, exceptions from or limitations of liability or immunities of whatsoever nature referred to or incorporated herein applicable to the carrier or to which the Carrier is entitled hereunder so that in no circumstances shall any such servant, agent or independent contractor be under any liability greater than that of the carrier hereunder. It is hereby further expressly agreed that for the purpose of the foregoing provision the Carrier is or shall be deemed to be acting as agent or trustee on behalf and for the benefit of all persons who are or may be its servants, agents or independent contractors from time to time for the purpose of or in connection with the performance of any of Carriers obligations under this Bill of Lading, and that all such persons shall to this extent be or be deemed to be parties to the contract contained in or evidenced by this Bill of Lading."

 It is settled law that parties may expand the coverage of the Carriage of Goods by Sea Act by the terms of a bill of lading. Secrest Machine Corp. v. S.S. Tiber, 450 F.2d 285 (5th Cir. 1971), and that a stevedore may assert the COGSA limitation where as here its liability is expressly limited by the bill of lading. The only interesting question is whether McRoberts, as an independent contractor of the stevedore, is also protected by the limitation. Clearly the employees and agents of the stevedore have such protection. See Carle & Montanari, Inc. v. American Export Isbrandtsen Lines, Inc., 275 F. Supp. 76 (S.D.N.Y.) aff'd, 386 F.2d 839 (2d Cir. 1967), cert. denied, 390 U.S. 1013, 88 S. Ct. 1263, 20 L. Ed. 2d 162 (1969). And, by analogy, I would hold that McRoberts in this particular case should also have the benefit of the limitation. See Sperry Rand Corporation v. Norddeutscher Lloyd, 1973 A.M.C. 1392 (S.D.N.Y. 1973).

 In any event, the primary responsibility for the loss of the goods at issue lies with the carrier, Y.S. Lines. Its bill of lading provides that the ...


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