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JOO SENG HONG KONG CO. v. S.S. UNIBULKFIR

March 18, 1980

JOO SENG HONG KONG CO., LTD., Plaintiff, against S.S. UNIBULKFIR, her engines, boilers, etc. and GRAND WISDOM TRANSPORTS, INC., TRANSAMERICAN STEAMSHIP CORP., and COOK INDUSTRIES, INC., Defendants.


The opinion of the court was delivered by: SAND

Joo Seng Hong Kong Co., Ltd. ("Joo Seng") brings this action to recover damages of some $ 85,000 for the short shipment or non-delivery of approximately 371.28 metric tons of soybean carried aboard the S.S. Unibulkfir ("Unibulkfir"). In addition to the Unibulkfir, the defendants are: Transamerican Steamship Corporation ("Transamerican"), the time charterer or "sub-time charterer" of the Unibulkfir; Cook Industries, Inc., the vessel's voyage charterer and the seller of the soybean to Joo Seng as well as the party named as both shipper and consignee on the relevant bills of lading; and Grand Wisdom Transports, Inc. ("Grand Wisdom"), which has neither answered nor appeared. Grand Wisdom's role in the events leading up to this litigation is no longer clear. *fn1"

In a previous opinion, this Court denied Cook's motion for an order staying plaintiff's claim against it pending arbitration and upheld plaintiff's right to pursue its claim against Cook in a federal forum under the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. ("COGSA"). Joo Seng Hong Kong Co., Ltd. v. S.S. Unibulkfir, et al., D.C., 483 F. Supp. 43 (1979) ("Joo Seng I "). Cook now moves for summary judgment pursuant to F.R.Civ.P. 56 on the ground that plaintiff's claim is barred by COGSA's one year statute of limitations. Transamerican also moves for summary judgment, but its motion is based on the assertions that it was not a carrier of the shipment involved herein, that it was not a party to the bills of lading and that it is thus not subject to suit on those bills under COGSA. *fn2" Alternatively, Transamerican seeks dismissal of plaintiff's claims against it pursuant to F.R.Civ.P. 12(b) (6). In addition to challenging defendants' assertions, Joo Seng cross-moves for a stay pending arbitration in New York on the ground that its claims are based on the Joo Seng/Cook sales contract and the Cook/Transamerican charter party as incorporated by the bills of lading.

 Cook's motion for summary judgment is granted insofar as it pertains to plaintiff's COGSA claim. Transamerican's motion for summary judgment and plaintiff's motion for a stay pending arbitration in New York are both denied. Plaintiff's contractual claim against Cook is stayed pending arbitration in London. We begin by describing facts and allegations only recently brought to the Court's attention. *fn3"

 I. The Revised Factual Background

 Under the Cook/Transamerican voyage charter party dated December 19, 1975, the specific vessel was to be named at a later date. At the time, the Unibulkfir was under a time charter between Unibulk A/S, apparently the ship's owner, and the Daiwa Navigation Co., Ltd. ("Daiwa"). *fn4" On December 22, 1975, Daiwa and Transamerican entered into a standard "Government Form" time charter party "for one time charter trip" under which the Unibulkfir was chartered to Transamerican with the express right to "sublet the vessel". The Unibulkfir was "nominated" as the performing vessel under the Cook/Transamerican charter party on December 29, 1975.

 Under Clause 8 of the Transamerican/Daiwa charter, a standard clause contained in most time charter parties, Transamerican assumed responsibility for the loading and discharge of ship's cargo. *fn5"

 
"The Captain (although appointed by the owners), shall be under orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, trim (and) discharge the cargo at their expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate's or Tally Clerk's receipts. See also. Cl. 42."

 Clause 42, separately appended to the standard form, provides specific authority for Transamerican or its agents to issue bills of lading on the Captain's behalf.

 
"It is understood that the master will authorize charterers or their agents to sign Bills of Lading on his behalf, accordance to Mate's receipt provided in conformity with terms of this charter party." (sic)

 As noted in Joo Seng I, the Cook/Transamerican charter party provided that the vessel was to be loaded by "Charterers' stevedores" and that the cargo was to be discharged by "Receivers' stevedores". *fn6" The charter party also provided that the Captain was "to call at Charterers' or their agents' office, as requested, and sign Bills of Lading, as presented, without prejudice to this Charter Party." Finally, under Clause 17, Transamerican's agents were to be employed at the loading and discharging ports.

 In addition to denying that it assumed any cargo responsibility under the terms of its charter with Daiwa, *fn7" Transamerican apparently argues that whatever cargo responsibility it did assume was "passed on" to Cook as a result of the Cook/Transamerican voyage charter. Since Transamerican also claims that it did not issue the bills of lading now held by Joo Seng, the argument is that Transamerican is not subject to suit as a carrier under COGSA, or that if it is so subject, the facts alleged do not support the assertion that Transamerican was in any way responsible for plaintiff's cargo loss.

 The parties agree that the three bills of lading covering the soybean shipment were issued "for the master" by Oceans International Corp. ("Oceans") "as agents". Plaintiff claims that Oceans was Transamerican's agent, and that since the bills were thus issued by Transamerican, Transamerican is subject to suit as a COGSA carrier. Moreover, plaintiff points to Clause 17 of the Cook/Transamerican charter and to a letter from the Captain of the Unibulkfir as evidence in support of its assertion that Transamerican actually supervised the loading and discharge of the cargo. *fn8" Transamerican neither admits nor denies that Oceans was its agent, but suggests instead that Oceans may have had a dual agency capacity, i.e., that it represented both Cook and Transamerican. In either event, Transamerican asserts that since the Captain was required by the Cook/Transamerican charter party to call at the charterers' or their agents' office to sign bills of lading, and since Cook was the charterer under that charter party, the bills involved must have been signed by Oceans as Cook's agent. *fn9" Finally, Transamerican challenges plaintiff's reliance on the letter from the Unibulkfir's Captain and relies on Clause 41 of the Transamerican/Daiwa charter party and Cook's obligations under the Cook/Transamerican charter party as evidence that it would not have supervised the loading and/or discharge of the soybean cargo.

 II. Cook's Motion for Summary Judgment

 COGSA provides that "the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. . . . ". 46 U.S.C. § 1303(6). See Nissho-Iwai Co., Ltd. v. Anglomar Supertankers, Limited, 617 F.2d at 911 n. 2 (2d Cir. 1980). The Unibulkfir arrived at its final destination on February 15, 1976, but the complaint in this action was not filed until May 25, 1978. Although at oral argument plaintiff refused to concede that its COGSA claims are time barred, plaintiff offers no support for the proposition that Cook's statute of limitations defense is not properly invoked before this Court. Accordingly, plaintiff's claim ...


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