The opinion of the court was delivered by: CONNER
This action for negligence, breach of contract and fraudulent misrepresentation was commenced in New York County Supreme Court on November 25, 1981, and removed to this Court, subject matter jurisdiction being predicated upon diversity of citizenship, 28 U.S.C. § 1332. Presently before the Court are motions (1) by plaintiff Miller Export Corporation ("Miller") to strike the nine affirmative defenses contained in the answer of defendant Hellenic Lines, Limited ("Hellenic"), Rule 12(f), F.R.Civ.P., and (2) by Hellenic for summary judgment on the basis of its statute of limitations defense, Rule 56, F.R.Civ.P.
The Allegations of the Complaint
According to the complaint, on December 13, 1978, Miller, an international seller and distributor of goods, received an order from its Pakistani customer Grand Batteries Limited ("Grand") for certain battery containers and battery covers. Grand required that the containers and covers be delivered together in one delivery to Pakistan under a single letter of credit and documentation.
Accordingly, by May 8, 1979, Miller retained Hellenic, a common carrier, to transport the containers and covers to Pakistan aboard a vessel to be selected by Hellenic. Thereafter Hellenic advised Miller that the cargo would leave from Philadelphia aboard the vessel Hellenic Sea. Relying thereon, Miller caused its supplier of covers to deliver the covers to Hellenic at the appropriate Philadelphia pier.
At about that time, however, Hellenic advised Miller that the Hellenic Sea would in fact depart from New York City. Accordingly, Miller caused its supplier of containers to deliver the containers to the appropriate pier in New York. As to the covers already delivered to Philadelphia, Hellenic agreed to transport them to New York by truck at its own expense.
In fact, according to Miller, contrary to this arrangement and contrary to the requirements of Grand, Hellenic shipped the containers aboard the Hellenic Sea from New York on May 21, 1979 and delivered the covers aboard the Hellenic Faith from Philadelphia on May 30, 1979. The requisite documentation for importation of both the containers and covers was sent with the earlier shipment of containers, as a result of which the covers arrived without documentation, were denied entry and are believed to have been impounded. Consequently, Grand received only the containers, which are of virtually no commercial use without the covers, causing Grand damage for which it holds Miller responsible. Nevertheless, Hellenic obtained full payment by submitting documentation representing that both the containers and covers had been shipped from New York aboard the Hellenic Sea.
In its first cause of action, Miller claims that Hellenic was negligent in its failure (1) to advise Miller of the proper port of departure, and (2) to transport the covers from Philadelphia to New York. In its second cause of action, Miller claims that Hellenic breached its contract to transport the covers from Philadelphia to New York. And in its third cause of action, Miller alleges that Hellenic fraudulently misrepresented (1) that it would transport the covers from Philadelphia to New York, and (2) that the containers and covers were both aboard the Hellenic Sea for shipment from New York to Pakistan.
The nine affirmative defenses which are the subject of Miller's motion to strike may be summarized as follows:
(1) that any loss or damage to the goods was not caused by Hellenic;
(2) that the Hellenic Sea was seaworthy and otherwise in conformity with the provisions of the United States Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1300 et seq.;
(3) that Hellenic is not responsible for any damage to the goods which occurred while they were aboard the vessel;
(4) that any loss or damage to the cargo was caused by the perils, dangers and accidents of the sea for which Hellenic is not responsible under COGSA;
(5) that proper notice and commencement of the suit were not timely under COGSA;
(6) that Hellenic's liability is limited to $ 500 per package ...