The opinion of the court was delivered by: POLLACK
Defendant M/V Atlantic Saga moves pursuant to Fed.R.Civ.P. 56 for an order dismissing the complaint against it on the ground that the complaint is barred by the applicable one year statute of limitations under the Carriage of Goods by Sea Act, 46 U.S.C. § 1303(6) ("COGSA"). Plaintiff A. B. Volvo ("Volvo") opposes the motion and cross-moves pursuant to Fed.R.Civ.P. 15 for leave to amend its complaint to add a party-Intercargo Aì ("Intercargo"). For the reasons stated hereafter, both motions will be granted.
Jurisdiction is predicated on this Court's Admiralty and Maritime jurisdiction, 28 U.S.C. § 1333.
On February 14, 1978, plaintiff, a foreign corporation with an office and place of business in Sweden, delivered 14 unboxed Volvo cab chassis units and 866 unboxed Volvo automobiles to Intercargo, a common carrier, to be shipped aboard the defendant M/V Atlantic Saga from Sweden to the Port of Elizabeth, New Jersey. Plaintiff in its papers at one time contended that bills of lading were not issued, but at oral argument conceded that the contract for carriage between Intercargo and plaintiff stated on its face, and was in fact governed by, the terms of Intercargo's bill of lading.
The M/V Atlantic Saga arrived in New Jersey on February 25, 1978. When the cargo was discharged, plaintiff discovered that a number of cars and chassis units were damaged, and informed Intercargo of the same. On November 6, 1978, Intercargo notified plaintiff that it would pay $ 2,294.65 in "full and final settlement" of the plaintiff's claim concerning damage to some of the cars but disclaimed liability as to the damage to 34 other cars and the 14 chassis units.
Settlement negotiations then took place between plaintiff and its underwriters and Intercargo and its agent, Motorships, Inc. ("Motorships"). In the meantime a number of extensions to sue were granted. The first was granted by Intercargo to Volvo on January 18, 1979, up until August 25, 1979. Thereafter Motorships, as agent for Intercargo, granted an unbroken chain of extensions until November 25, 1981. These extensions were granted to Toplis & Harding, plaintiff's claim adjustor in the matter.
Plaintiff filed suit on November 2, 1981 for the damage to the cargo.
Plaintiff inadvertently named Intercontinental Transport (ICT) B.V. as the charterer and served ICT directly at its office on November 10, 1981. ICT forwarded the summons and complaint to Atlantic Container Lines (ACL) because the vessel, the M/V Atlantic Saga, is owned by a Line in the ACL group. ACL forwarded the papers to Motorships on December 14, 1981, which in turn sent them to defense counsel for defendant M/V Atlantic Saga on December 17, 1981.
ICT was dropped from the suit on January 21, 1982.
DEFENDANT M/V ATLANTIC SAGA's MOTION TO DISMISS THE COMPLAINT
Defendant M/V Atlantic Saga correctly argues that the extensions granted by Motorships to plaintiff do not bind it as it in no manner authorized Motorships to grant extensions on its behalf. Waivers of COGSA's one year limitary bar are to be strictly construed. See, e.g., United Fruit Co. v. J.A. Folger & Co., 270 F.2d 666, 670 (5th Cir. 1959), cert. denied, 362 U.S. 911, 80 S. Ct. 682, 4 L. Ed. 2d 619 (1960) ("it is in the interests of all shippers and all carriers that when a steamship company grants an extension of the time for suit, in writing, before the running of the statute, specifically limited to a fixed and reasonable time, that the parties be able to rely on the terms of their agreement."). See also Italia Assicurazion, S.P.A. v. S/S "St. Olga", St. Olga Maritime Co., Ltd., 1974 A.M.C. 2209 (S.D.N.Y.1974), in which Judge MacMahon refused to apply an extension granted by the defendants to a party not named in the extensions.
While plaintiff originally argued that COGSA did not apply as no bills of lading were issued, plaintiff's counsel conceded at the hearing that the contract for affreightment between Intercargo and plaintiff was specifically subject to Intercargo's bill of lading. Therefore, under the terms of the statute itself, COGSA applies, 46 U.S.C. § 1300, including COGSA's one year statute of limitations, § 1303(6).
As more than one year has expired from the time of delivery, February 25, 1978, until the filing of the complaint on November 2, 1981, the suit against defendant M/V Atlantic Saga must be dismissed.
PLAINTIFF'S MOTION TO AMEND
As previously set forth, plaintiff inadvertently named and served the wrong party as charterer, ICT, on November 10, 1981. The summons and complaint were received by Motorships on December 14, 1981. The parties do not dispute that Motorships is Intercargo's agent for purposes of service of process.
The last extension granted to plaintiff expired on November 25, 1981. Thus Motorships, as agent for Intercargo, learned of the suit against Intercargo about three weeks after the time for filing suit against Intercargo had expired. The question is whether plaintiff should now be permitted to amend the complaint to name Intercargo as a defendant ...