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TRAVELERS INDEM. CO. v. M.S. KISO MARU

May 16, 1979

The TRAVELERS INDEMNITY CO., Plaintiff,
v.
M.S. KISO MARU, her engines, boilers, etc., and against Nippon Yusen Kaisha,Defendants



The opinion of the court was delivered by: WERKER

This action was commenced by The Travelers Indemnity Co. ("Travelers") against the defendant Nippon Yusen Kaisha ("Nippon") for nondelivery of a shipment of 24 cases of cigarette lighters transported aboard the M.S. Kiso Maru from Kobe, Japan to Boston, Massachusetts. Nippon has moved to transfer this action to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 1404(a). Travelers has cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56.

1.

The following facts are not in dispute.

 In May 1977, the Colibri Division of Park Lane Associates Inc. ("Colibri"), a Rhode Island corporation engaged in the business of importing and distributing cigarette lighters, purchased a quantity of cigarette lighters from the Penguin Co., Ltd. ("Penguin") in Japan. The purchase price of 9,019,500 (Japanese yen) was paid by Colibri by letter of credit dated April 22, 1977 drawn on the Industrial National Bank of Rhode Island.

 Penguin delivered the lighters to Nippon in Kobe for delivery to Boston, and Nippon issued a bill of lading which stated that "Twenty Four (24) Cases Only" of "CIGARETTE LIGHTERS" had been received in "apparent good order and condition." Nippon stowed the lighters, for its own convenience, in a container which was sealed and placed aboard the M.S. Kiso Maru.

 The bill of lading contained on its face the type-written words and figures "DECLARED VALUE: 9,109,500.-" in a column bearing the heading "Description of Goods." The bill of lading described the 24 cases as bearing the following "Marks & Nos.":

 TABLE

 The bill of lading also indicated that the cases bore the "SIDE MARKS: -BA-1428."

 The bill of lading was negotiated to Colibri and Colibri thereby obtained title to the lighters. Colibri received along with the bill of lading an invoice and a packing list, both of which were prepared by Penguin and which indicated that the 24 cases contained 12,000 cigarette lighters and 1,440 pieces of spare parts for lighters. The invoice and the packing list both identified the 24 cases with the same numbers and marks appearing on the bill of lading as quoted above. Affid. of Chandler J. Moisen, sworn to Jan. 19, 1979, PP 4, 6 & exhs. A, C.

 The bill of lading as issued to the "ORDER OF INDUSTRIAL NATIONAL BANK OF R.I. PROVIDENCE, R.I." Nippon was obligated under the express terms of the bill of lading to transport the goods "from the place of receipt or the port of loading to the port of discharge or the place of delivery . . . and there to be delivered unto order or assigns."

 On or about June 3, 1977, the M.S. Kiso Maru arrived at Boston and all of its cargo, including containers, was discharged by Bernard S. Costello, Inc., a stevedoring company engaged and paid for by the Massachusetts Port Authority. Nippon's agents opened the container in which the 24 cases of cigarette lighters had been stowed, but the 24 cases were found to be missing.

 Colibri had insured the cigarette lighters against loss under a marine insurance policy issued by Travelers, and after the lighters were discovered to be missing, Colibri made claim to Travelers and received payment of $ 37,256.66.

 In January 1979, Travelers commenced this action to recover the declared value of ...


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