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February 15, 1984

ATLANTIC OVERSEAS CORPORATION, individually and as agent for Elder Dempster Lines Ltd., and Elder Dempster Lines Ltd., d/b/a North American West Africa Line, Defendants.

The opinion of the court was delivered by: SWEET

SWEET, District Judge.

Plaintiff Gold Medal Trading Corp. ("Gold Medal") has moved for summary judgment.The defendants have crossmoved seeking a dismissal of the complaint. The claim of Gold Medal arises out of an alleged misdelivery of three containers to the consignee Mamadou Kolo N Diallo ("Diallo") in Conakry, Republic of Guinea, Africa, contrary to a letter of instruction requiring presentation of the original bills of lading before delivery. Gold Medal's motion will be granted and the defendants' motion denied on the findings of fact and conclusions of law set forth below.


 On or about March 16, 1982, Gold Medal delivered to the defendants three containers, numbers 236841-8, 213419-3 and ICSU-2846048, containing textiles seconds. Three original bills of lading each numbered 1001NYCK, dated March 16, 1982 were issued to Gold Medal by Atlantic Overseas Corp. ("Atlantic") as agents for Elder Dempster Lines ("Elder Dempster") and North American New African Line ("NAWAL"), bearing the legend in the upper left corner "Non-Negotiable Unless Consigned To Order." In addition to the three original bills of lading, five not negotiable copies of the bills of lading were also issued to Gold Medal by Atlantic with the legend "Not Negotiable" added to the lower left.

 On March 19, 1982, Specific International Freight Forwarders, Inc. ("Specific") freight forwarding agents of Gold Medal sent a letter to NAWAL instructing NAWAL not to release the containers without the presentment of the original bills of lading. The letter was countersigned by Mr. Treibitz of NAWAL on March 24, 1982. The same instruction was forwarded the following day to the Societe Navale Guineene which is characterized by NAWAL, without contradiction, as nominally a shipping agent, a member of the Port Council of Conakry and an entity of the Guinean government, and the only and required agency for the delivery of cargo in Guinea.

 The original bills of lading are and always have been in the possession of Gold Medal and were never sent by Gold Medal to its consignee Diallo. NAWAL's investigation produced statements from both the consignee Diallo and the freight manager of the Societe Navale Guineene that the original bill of lading was presented. Neither could produce the bill which is said by Gold Medal's agent to be presently in his possession. A shadow of factual issue thus exists which calls only for a further submission by the parties as set forth below.

 The three containers were loaded aboard the defendants' vessel, the SEKI ROKAKO, on or about March 16, 1982, destined for Conakry, Republic of Guinea. Sometime thereafter, in late March or early April, 1982, the SEKI ROKAKO reached Conakry, Guinea, and discharged the plaintiff's three containers to the custody of the Societe Navale Guineene which thereafter released them to the consignee Mamadou Diallo.

 The invoices covering the containers state the price of the goods contained to be $112,689.20. The consignee has paid some $20,000 of the amounts due Gold Medal's affiliate, A. & S Baumtex. The money was applied to the consignee's obligation. Thereafter, following the initiation of this action, a representative of Gold Medal agreed with the consignee to settle the remaining balance of the unpaid claim for $50,000, and Gold Medal has received another $5,000 to $6,000 toward that end.

 Gold Medal contends that the original bills were intended to be negotiable even though they were not consigned to order, because the copies were conspicuously stamped "Not Negotiable." The Pomerene Bills of Lading Act, 49 U.S.C. §§ 81-124, requires that any non-negotiable, straight bill of lading "have placed plainly upon its face by the carrier using it "nonnegotiable" or "not negotiable." 49 U.S.C. § 86. The quoted notation "Non-Negotiable Unless Consigned to Order" printed in the upper left hand corner and on the back of the original bills of lading is sufficient to satisfy this requirement, therefore I conclude that these bills were nonnegotiable, "straight" bills of lading.

 A carrier is justified in delivering goods to the consignee named in a straight bill of lading, subject to the provisions of 49 U.S.C. §§ 90-92. 49 U.S.C. § 89(b). However, Section 90(a) provides:

 Where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier shall be liable to anyone having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of section 89 of this title; and, though he delivered the goods as authorized by either of said subdivisions, he shall be so liable if prior to such delivery he --

 (a) Had been requested, by or on behalf of a person having a right of property or possession in the goods, not to make such delivery.

 The letter of Gold Medal's agent to NAWAL constituted a direction to release the containers only upon presentation of the original bill of lading, a direction which was conveyed to NAWAL's shipping agent, Societe Navale Guineene, a direction which the latter disregarded. Thus, although NAWAL's agent delivered the goods to the consignee, as authorized by 49 U.S.C. § 89(b), it did so in disregard of a request by Gold Medal not to make such a delivery. NAWAL is therefore liable for Gold Medal's damages suffered as a result of the misdelivery. 49 U.S.C. § 90(a). See Wabco Trade Co. v. S.S. Inger Skou, 482 F. Supp. 444, 448 (S.D.N.Y.1979).

 Gold Medal's failure to retain a security interest in the goods by virtue of the issuance of nonnegotiable bills of lading, Uniform Commercial Code, § 2-505(1)(b), does not alter the agreement between Gold Medal, the shipper, and NAWAL, the carrier. At the time of the instruction, Gold Medal had a ...

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