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September 6, 1983

LITHOTIP, CA., Plaintiff, against S.S. GUARICO, her engines, boilers, etc., COMPANIA ANONIMA VENEZOLANA DE NAVEGACION, Defendants.

The opinion of the court was delivered by: LASKER


In this action for cargo damage and shortage, the carrier, Compania Anonima Venezolana de Navegacion ("Venline"), moves pursuant to Fed. R. Civ. Pr. 56 for summary judgment on the grounds that the action is time-barred. The shipper, Lithotip, CA ("Lithotip"), cross-moves for summary judgment, contending that the action is timely and that there are no genuine issues of fact with regard to the carrier's liability for the loss and damage to the subject cargo.

 The cargo in question (possibly minus the shortage amount) arrived at its destination, the Port of La Guaira, Venezuela, on April 30, 1981. It was discharged the same day into the custody of the Instituto Nacional de Portos ("INP"), a government body responsible for port operations including the receiving, stevedoring and warehousing of discharged cargo. At some point, Lithotip, the consignee, was notified of the arrival of the cargo (at argument, both parties indicated that the date of notification was unknown) and, between May 18, 1981 and May 25, 1981, Lithotip took delivery of the cargo. The instant complaint was filed on May 18, 1982.

 The Carriage of Goods by Sea Act ("COGSA") which both parties agree covers the instant action, provides for a one-year statute of limitations. 46 U.S.C. § 1303(6). Section 1303(6) specifies that the one year period commences with the "delivery of the goods." *fn1" Thus, if "delivery" is deemed to have occurred at any time prior to May 18, 1981, the action is time-barred. The parties dispute the meaning, for COGSA purposes, of the term "delivery."

 Venline argues that because the Harter Act, 46 U.S.C. §§ 190-196, governs the rights of the parties after the cargo leaves the vessel's tackle, the word delivery in § 1303(6) of COGSA should be interpreted as the term is interpreted under the Harter Act. Under that Act, the carrier is not responsible for damage to the cargo after "proper delivery," which has been defined by case law to mean, inter alia, delivery to the custody of a duly authorized port authority. Allstate Insurance Co. v. Imparca Lines, 646 F.2d 166 (5th Cir. 1981).

 In the alternative, Venline argues that, for COGSA § 1303(6) purposes, delivery should be interpreted as defined by the bill of lading, which provides:

 "All responsibility of the Carrier in any capacity shall altogether cease and the goods shall be considered to be delivered . . . and at the risk and expense of the consignee when delivered to lighters or other craft or put into possession of customs or other authorities, or on public dock or in public warehouse, the customs or other authorities or persons taking possession of the goods being deemed to have taken delivery thereof as agent of the shipper, consignee and owner of the goods."

 Clause 12, Bill of Lading, Exhibit 2 to Affidavit of Edward A. Keane.

 Lithotip answers that interpretations of the Harter Act are inapposite to interpretation of the COGSA statute of limitations because the considerations pertinent to the two statutes are different. In particular, it is argued that the Harter Act uses the term delivery to disengage the time at which the carrier is no longer liable for damage to the cargo, whereas COGSA uses the term to specify the time at which the statute of limitations begins to run. The cases which have interpreted COGSA itself, Lithotip asserts, have all required at least notification to the consignee before delivery is deemed to have occurred. With respect to the bill of lading, Lithotip contends that the clause in question is pertinent to the Harter Act-type question, i.e., when the carrier's liability terminates; it does not purport to refer to the statute of limitations, and should not be read to define "delivery" for all possible purposes.

 Lithotip further asserts that if it prevails on the statute of limitations question, it is entitled to the entry of summary judgment because there are genuine fact issues as to Venline's responsibility for the cargo damage and loss.

 * * *

 The Harter Act is concerned with the circumstances under which a carrier's responsibility for damage to cargo terminates. Thus, in Allstate Insurance Co. v. Imparca Lines, supra, relied on by Venline, the court held that because discharge to the port authority constituted "proper delivery" under the Harter Act, the carrier could not be held liable for damages occurring to the cargo in the port authority's custody. The court observed that after the carrier had discharged the cargo to the port authority, it was "powerless to interfere with the exclusive operation of the port by the [port authority]." Id. at 169. Clearly, it would have been unfair to hold the carrier liable for events occurring after it was "powerless to interfere."

 Interpretation of the accrual provisions of a statute of limitations requires consideration of different factors. One significant item is the question of fairness to the plaintiff: it would generally be deemed unfair to start the clock ticking before a plaintiff even has notice that he has been wronged. Were we simply to graft the Harter Act definitions onto COGSA, the cause of action would accrue when the goods were discharged to the port authorities, whether or not the consignee had notice that the vessel had landed. Because of the disjointed result which would flow from such an interpretation, we conclude that cases interpreting the Harter Act are inapposite, and turn to the decisions interpreting COGSA § 1303(6), which is, after all, the provision in question.

 Of the five cases found in which COGSA § 1303(6) has been interpreted, four have concluded that "delivery" does not take place until, at the least, the consignee has been notified that the cargo is available to be picked up. The court in American Hoesch, Inc. ...

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