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January 18, 1980

ZIMA CORPORATION and Schweiter Corporation, Plaintiffs,
M. V. ROMAN PAZINSKI, her boilers, etc., Polish Ocean Lines and Panalpina Welttransport Gmbh. Hamburg, Defendants

The opinion of the court was delivered by: CONNER


Plaintiff Schweiter Corporation of Spartanburg, South Carolina (hereafter "Schweiter Spartanburg") moves for partial summary judgment against defendant Panalpina Welttransport Gmbh. Hamburg (hereafter "Panalpina Hamburg") on the issue of Panalpina Hamburg's liability as a carrier for the loss of certain machinery shipped to plaintiff aboard the M/V ROMAN PAZINSKI. In the alternative, plaintiff moves for a stay of this action pending a hearing as to Panalpina Hamburg's carrier status before the Federal Maritime Commission (hereafter "FMC") on the grounds that the FMC has primary jurisdiction over this issue. Defendant Panalpina Hamburg cross-moves for summary judgment; in the alternative, defendant moves for an order enforcing the forum selection clause in the bill of lading on which defendant's carrier status is based. For the reasons outlined below, plaintiff's motions are denied; defendant's motion for summary judgment is granted as to plaintiff's claims against defendant based on defendant's status as a common carrier; and defendant's motion to dismiss based on the forum selection clause is granted as to any other claims plaintiff may have against defendant under defendant's bill of lading.

The Facts

 Plaintiff Schweiter Spartanburg purchased a number *fn1" of automatic cone winders, a type of textile machinery, from its parent corporation, Schweiter Engineering Works, Ltd. of Horgen, Switzerland (hereafter "Schweiter Horgen"). Although the terms of the sale agreement called for delivery at Schweiter Horgen's plant, Schweiter Horgen arranged for subsequent shipment to South Carolina and related insurance on behalf of Schweiter Spartanburg, contacting Panalpina AG of Zurich, Switzerland to insure the machines against all risks from "factory to factory," *fn2" and contacting either Panalpina AG or a related Panalpina company in Zurich (Panalpina Forwarding, Ltd. or Panalpina World Transport, Ltd., hereafter, collectively, "Panalpina Zurich") *fn3" with regard to shipment. On the same date that Schweiter Horgen invoiced Schweiter Spartanburg for the machines, Schweiter Horgen advised Schweiter Spartanburg that the goods would be shipped on the M/V ROMAN PAZINSKI from Bremen to Wilmington, North Carolina. *fn4"

 The machinery was loaded at the Schweiter Horgen factory into an empty container furnished by Panalpina Zurich. The machinery was then shipped by rail to Bremen. At Bremen, pursuant to arrangements made by another Panalpina company, Panalpina Hamburg, through booking agent Walter Sporleder, the cargo was loaded aboard Polish Ocean Lines' vessel ROMAN PAZINSKI.

 On the voyage from Bremen to Wilmington, the container was lost overboard. Polish Ocean Lines notified the consignee named on its bill of lading, Panalpina International Freight Forwarding, Ltd., of Greer, South Carolina (hereafter "Panalpina South Carolina") that the container had been lost, and the various interested parties initiated claims against their respective insurers. Schweiter Spartanburg subsequently filed this suit for cargo damages against Polish Ocean Lines and Panalpina Hamburg, alleging that the defendants had breached their duties and obligations as common carriers "and were otherwise at fault."

 The Documents

 The dispute between the parties to these motions plaintiff and defendant Panalpina Hamburg centers on the nature of Panalpina Hamburg's undertaking with respect to transportation of the Schweiter container: whether Panalpina Hamburg undertook to transport the container safely to its destination, thus assuming the status of a common carrier, or undertook merely to arrange for transportation of the goods, thus assuming the more limited liability of a freight forwarder. Four documents are particularly relevant to this dispute. The first is an invoice prepared on November 12, 1977, by Panalpina Forwarding Ltd., Zurich, billing either Schweiter Horgen or Schweiter Spartanburg *fn5" $ 2,648 for "freight from Horgen to C & F Wilmington according to our offer" for the machinery in question, listing Schweiter Spartanburg as the consignee, Bremen as the loading port, Wilmington as the arrival part, and the ROMAN PAZINSKI as the ship. This document further states:

"All forwarding, shipping, insurance, etc. are done as agents only and carried out under the "general terms and conditions of the Association of the Swiss Forwarding Agents' (latest issue)."

 The general conditions of that Association effective as of November 1, 1967 provide in Article 1 that:

"(t)he taking over and forwarding of articles of any kind is carried out on the basis of the regulations, conditions and clauses in the bills of lading of the freight carriers used for the transport . . . " (emphasis added).

 The second and third documents are the two bills of lading issued in connection with this shipment. The first of these, numbered 565.363, issued by Polish ocean lines, names Panalpina Hamburg as shipper, Panalpina South Carolina as consignee, Hamburg as the port of loading, and Wilmington, North Carolina as the port of discharge. This bill of lading contains clauses incorporating the York-Antwerp Rules on General Average, limiting the ship's liability for superficial rust damage to iron and steel products, specifying the procedures to be followed by the ship's master in issuing bills of lading, and discharge of the cargo at the named port of discharge. *fn6" The second bill of lading, also numbered 565.363, was issued by Panalpina Hamburg. This bill of lading names Panalpina Zurich as the shipper, and Panalpina South Carolina as the consignee; states that freight is payable at Hamburg; lists Bremen as the loading port and Wilmington as the port of discharge; and contains the same description of the container shipped and of the terms of shipment ("freight prepaid, shipped on board, house to house") as does the Polish Ocean Lines bill of lading. The document further states, however, that:

"The Panalpina Welttransport Gmbh in carrying out the orders of the shipping and/or other person or persons having the right to dispose of the goods do not act as common carriers but solely as forwarders in accordance with the latest edition of the Allgemeine Deutsche Spediteurbedingungen (ADsp) *fn7" and in accordance with the regulations, terms of business and tariffs of the Railways, Maritime Companies and/or other forwarding concerns and intermediary institutions engaged in the carriage of said goods and in force at the time of transport. They shall not be responsible for loss or damage caused by any act of God or by actions of the carriers and/or others engaged in the transport of the said goods and/or their agents.
"Disputes arising from this contract shall be subject to German law, and the Hamburg Courts of ...

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