The opinion of the court was delivered by: DUFFY
This action was originally commenced by National Automotive Publications (hereinafter referred to as "NAP"), in New York State Supreme Court, New York County, against United States Lines, Inc., charging breach of contract, negligence and wrongful detention of goods. Thereafter, the action was removed to this Court pursuant to 28 U.S.C. § 1441. Jurisdiction is alleged under the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300 et seq. (hereinafter referred to as "COGSA" or "the Act").
Plaintiff is the publisher of National Sports Annual, an annual publication featuring articles, photos and advertising materials catering to motor racing fans. After some negotiations between NAP and a well known race track in England, NAP was granted a license to sell its 1978 Annual at the track during a two day motor car race. The race was scheduled for the 16th and 17th of September, 1978. In consideration for the license, NAP agreed to provide the track with exclusive coverage of the race by devoting a special section to the race in its 1979 Annual.
In August, 1978, NAP, through its managing agent and editor George Houraney, began preparation for the shipment of its publication to England for the race. After some investigation, NAP determined that shipment aboard one of defendant's vessels, the American Argosy, was satisfactory in that the vessel was scheduled to arrive in England prior to the race. Thus, on August 16th, the plaintiff delivered 18 cartons to the defendant for shipment to England. These cartons contained approximately 1,800 of plaintiff's 1978 Annual. These magazines were produced at a total cost of $ 2,178.
Upon delivery of the goods to defendant, a "dock receipt" was issued. The receipt contained the following language:
George Houraney Hold on dock will pick up September 14, 1978, London England.
(emphasis in original). It went on to provide:
RECEIVED the goods or the containers, vans, trailers, pallerized units or other packages said to contain the goods herein mentioned, in apparent good order and condition, except as otherwise indicated herein, to be held and transported subject to all the terms contained in the carrier's regular long and short form bills of lading currently used in this service . . . . Copies of such bill of lading and clauses may be obtained from the carrier on request and may be inspected at any of its offices.
The defendant's short form bill of lading provides, in pertinent part:
1. It is agreed that the receipt, custody, carriage, delivery and transshipping of the goods are subject to the terms appearing on the face and back hereof and also to the terms contained in the carrier's regular long form bill of lading currently used in this service . . . which shall govern the relations, whatsoever they may be, between shipper, consignee, carrier and ship in every contingency, wheresoever and whensoever occuring (sic) . . . Copies of the carrier's regular long form bill of lading and clauses presently being stamped or endorsed thereon are available from the carrier on request and may be inspected at any of its offices or its agents' offices.
3. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936 . . . .
Likewise, defendant's long form provides in part:
2. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936 . . . the provisions of said Carriage of Goods by Sea Act of the United States shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the carrier and during such time the carrier shall not be liable in any capacity whatsoever for any loss or damage howsoever or wheresoever occurring unless shown to be caused by the negligence of the carrier other than negligence in the management of the ship.
The goods were placed on board the American Argosy which sailed for England in late August and arrived at Felixstowe, England, on September 1, 1978. Plaintiff's goods were then discharged and arrived in London at the Barking Containerbase on September 4th. Thereafter, plaintiff's goods were unpacked by defendant and made available for pick up by plaintiff's representative subject to the payment of defendant's freight charges and compliance with English custom regulations.
On Thursday, September 14th, plaintiff's representative, George Houraney, arrived in England to take possession of the goods. As it developed, however, the proper custom clearance had not been obtained and, accordingly, the goods could not be removed. Despite several attempts by English Customs Clerk, Peter Gregory, to clear the goods, plaintiff was unable to take possession of the goods prior to the auto race at which they were to be distributed. In fact, when all clearance efforts were exhausted on Friday, September 15th, the day before the race, plaintiff's representative abandoned all efforts to gain the release of the goods. Thus, to date, the goods remain uncollected on the docks awaiting custom's clearance. In addition, the shipping charges for the goods remain unpaid.
The essence of the dispute between the parties concerns the terms of the bill of lading issued by defendant and the manner in which plaintiff's goods were handled by defendant upon arrival in England.
More particularly, plaintiff argues that the terms of the bill of lading differed substantially from those terms agreed upon by the parties and recited in the dock receipt. In this regard, plaintiff points to the fact that defendant was named for the first time, in the bill of lading, as the consignee of the goods. However, in the dock receipt, defendant was named only as the "exporter/carrier" whereas the plaintiff was designated "shipper/exporter" and, by reasonable inference, designated the consignee of the goods.
In addition, plaintiff argues that the destination of the goods was unilaterally changed by defendant from London, England, to the port of Felixstowe, England.
Plaintiff also argues that it was led to believe, through the representations of defendant's agents, that any and all custom requirements would be satisfied by defendant and plaintiff would simply be able to pick up its goods on the dock in England. However, upon plaintiff's arrival in England, the custom requirements had not been satisfied and it was impossible for plaintiff to remedy this situation in time for the goods to be cleared and ready for distribution at the race track.
In addition, plaintiff urges that whatever chance existed for a timely clearance of the goods was precluded by certain "custom snags". These, plaintiff argues, were caused by defendant's unilateral changes in the contract of carriage with respect to the designated consignee of the goods and their port of delivery.
Plaintiff concludes that the changes in the parties contract of shipment which appeared in the bill of lading constituted a breach of the agreement. In addition, plaintiff charges that defendant's failure to take the necessary steps to insure that plaintiff's goods cleared customs upon their arrival in England, constituted negligence and resulted in the wrongful detention of plaintiff's goods.
Defendant, of course, contends that pursuant to the provisions contained in the dock receipt, the terms contained in its bill of lading and the provisions of the COSGA were properly incorporated into the parties' contract of shipment. And, when these provisions are read together, the goods were properly shipped to ...