The opinion of the court was delivered by: MOTLEY
Plaintiff and third-party defendants moved, pursuant to Rule 56, FED. R. CIV. P., for summary judgment against defendants. For the reasons set forth below, both motions are granted.
Plaintiff moves for summary judgment for the short delivery of 113 cartons of audio components by defendants. The affidavits and exhibits annexed thereto disclose the following facts.
On or about October 28, 1977, plaintiff tendered at Yokohama, Japan a shipment of audio components for carriage by defendants. Def. Ans. para. 5. The goods were "stuffed" by defendants into container No. OOCL-260409, seal No. OOCL-52227, and loaded aboard the S.S. Korean Leader, operated by defendants. Def. Ans. paras. 3, 6. An intermodal bill of lading No. OOCL-005M, dated October 31, 1977, was concededly issued by or on behalf of defendants. Def. Ans. para. 5; Def. Ans. to Plf. Interr. para. 1. By the terms of the bill of lading, defendants agreed to carry the goods "by ocean vessel between port of loading [Yokohama] and port of discharge [Seattle]," and agreed to arrange for or procure "pre-carriage from place of receipt and on-carriage to place of delivery [New York]." Aff. in Supp. of Plf. Motion Exh. 1; Third Pty. Def. Supplemental Aff.
The terms of the bill recite in pertinent part: "the containers, goods, or packages said to contain Goods as specified below in apparent good order and condition unless otherwise stated." Id. Noted in the column NO. OF PKGS. is the entry "1 container (384 cartons)." In the column marked DESCRIPTION OF PACKAGES AND GOODS is the entry "SHIPPER'S LOAD & COUNT," "SANKYO AUDIO PRODUCTS," "TOTAL: ONE (1) CONTAINER ONLY." Id. No notations appear in the margin of the bill to qualify the number or condition of the goods received.
Defendants admit that only 271 cartons of the subject shipment were delivered to plaintiff in New York. Def. Ans. to Plf. Interrog. para. 35. A security report prepared by employees of the third-party defendants, and submitted by defendants, reports that three men were observed dismounting from the flatbed car on which the container carrying the subject shipment rested. Def. Reply Aff. in Opp. Exh. D. Inspection revealed that the original seal had been broken, but no seal was found on the car bed. Several cartons of the shipment were recovered near the container. The railroads' investigating officer estimated that the container was one-third empty, and that the container, judging from the amount of snow which had accumulated had been open for some time. Id.
These facts, not controverted by defendants, must be deemed admitted. S.D.N.Y. LOCAL R. 3(g). On March 8, 1978, defendants filed a written claim with third party defendant CONRAIL. Third Pty. Def. Statement Pursuant R. 3(g) para. 11. On May 20, 1978, third-party defendant CONRAIL disallowed defendants' claim. Id. para. 12. The instant action was commenced by plaintiff on May 20, 1981 against defendants. Thereafter, on July 2, 1981, defendants filed a third-party complaint against third-party defendants. Id. P 14.
I. Plaintiff's Motion For Summary Judgment
The responsibility of the district court on a motion for summary judgment is to determine whether there exists any genuine issue of material fact to be tried. American Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981); Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975). The court finds that plaintiff, having established a prima facie case as a matter of law, has carried its "preliminary burden" under Rule 56, FED. R. CIV. P., of showing there is no genuine issue as to any material fact. United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S. Ct. 1175, 51 L. Ed. 2d 582 (1977).
A shipper, in order to make a prima facie case, need only show receipt for carriage in good order and non-delivery. M.W. Zack Metal Co. v. S.S. Birmingham City, 311 F.2d 334, 337 (2d Cir. 1962), cert. denied, 375 U.S. 816, 11 L. Ed. 2d 51, 84 S. Ct. 50 (1963); Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426, 429 (2d Cir. 1962); G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY 183-85 (2d ed. 1975). The court finds that the bill of lading No. YKNY-005M, concededly issued by defendants for receipt of the goods, and defendants' admission of short delivery establish plaintiff's prima facie case against defendants.
A bill of lading is prima facie evidence of receipt by the carrier of the goods therein described. Carriage of Goods by Sea Act (COSGA), 46 U.S.C. § 1303(4). The bill of lading issued by defendants shows that plaintiff delivered 384 cartons to defendants for carriage to New York. The fact that the bill of lading states that the description is "SHIPPER'S LOAD & COUNT" does not relieve the carrier of liability for loss of the goods. Spanish Am. Skin Co. v. The M.S. Ferngulf, 143 F. Supp. 345, 349 (S.D.N.Y. 1956), aff'd, 242 F.2d 551 (2nd Cir. 1957).
Defendants concede that the subject shipment was short delivered in New York. Def. Ans. to Plf. Interr. para. 35. [In view of this admission, the Receiving Report and the United States Customs Discrepancy Report submitted by plaintiff as probative evidence of the ...