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REISMAN v. MEDAFRICA LINES

September 7, 1984

MARTIN REISMAN, etc., Plaintiff, against MEDAFRICA LINES, U.S.A., et ano., Defendants.


The opinion of the court was delivered by: SWEET

SWEET, D.J.

Shipper Martin Reisman ("Reisman") commenced this admiralty action against Medafrica S.p.a. ("S.p.a.") and Medafrica U.S.A. ("U.S.A.") to recover in excess of $150,000, alleging that S.p.a. and U.S.A. had failed to deliver goods of that value to their destination and had failed, upon demand, to return such goods to Reisman. S.p.a. and U.S.A. have moved pursuant to Fed.R.Civ.P. 56 and 46 U.S.C. 1303(6) to dismiss the action both because it is time barred and because it fails to state a claim against defendants. U.S.A. and S.p.a. also moves to impose sanctions on Reisman pursuant to Fed.R.Civ.P. 37. The motion to dismiss is granted, and the question of Rule 37 sanctions therefore need not be reached.

 Background

 Reisman alleges that in or about July, 1980 he delivered the goods involved in this case to defendants upon defendants' agreement to ship the goods to Harcourt, Nigeria. The transfer of goods was identified by bills of lading 910 and 915, dated June 27, 1980. The goods were to be delivered and released to U.A. Ezumo in Nigeria upon Ezumo's presentation of the original bill of lading. Reisman alleges that S.p.a. and U.S.A. failed to deliver the goods properly, have failed to account for the goods, and, upon demand, have failed to return the goods to Reisman. However, Reisman accepts as true the assertion in defendants Rule 3(g) statement that plaintiff's cargo was delivered or should have been delivered by September 27, 1980. Upon these facts, Reisman alleges, in Count One, breach of the carriers' obligations and asserts a claim for recovery of $157,820.

 In Count Two Reisman alleges the same facts and asserts a claim of negligence against S.p.a. and U.S.A., alleging damages of the same amount.

 In Count Three, Reisman realleges the same facts and damages, founded upon a claim of conversion.

 In Count Four, Reisman alleges that defendants fraudulently induced Reisman to enter into the shiping contrct by falsely claiming to be trustworthy and competent shippers and by intending to induce Reisman's reliance on such assertions. Reisman, however, in an affidavit of June 27, 1984 concedes that: "In or about June of 1980, I dealt with a freight forwarder, Anthony Assorto of Mercantile Freight Forwarders in New York because that was the only way I could ship goods to Nigeria; I could not deal directly with Medafrica Lines,. . ." Also, Reisman concedes the accuracy of defendants' assertion in their Rule 3(g) statement that:

 6. Defendant, Medafrica Line, U.S.A., was not the agent for the ocean carrier, MEDAFRICA LINE, S.p.a., at the time the bills of lading were issued or when the cargo was or should have been delivered.

 7. Defendant, MEDAFRICA LINE, U.S.A., was not named in any of the subject bill of lading contracts either as agent or as principal.

 8. Defendant, MEDAFRICA LINE, U.S.A., never had possession, custody or control of plaintiff's cargo in the United States, on the high seas, or in Nigeria.

 Discussion of Law

 Defendants seek to dismiss the complaint by alleging first that the U.S. Carriage of Goods by Sea Act, 46 U.S.C. 1300 et seq. controls this action and second that the claims are time barred by the one year statute of limitations in § 1303(6) of the Carriage of Goods by Sea Act ("COGSA").

 The initial issue that demands resolution is whether COGSA applies to the claims brought by Reisman. 46 U.S.C. §§ 1302 and 1312 limit COGSA's application to all "contracts for carriage of goods by sea." 46 U.S.C. § 1301(e) defines the term "carriage of goods" as including the "period from the time when the goods are loaded on to the time when they are discharged from the ship." 46 U.S.C. § 1311 provides that "[n]othing in this chapter shall be construed as superseding . . . any other law which would be applicable in the absence of this chapter, insofar as they relate to the duties, responsibilities, and liabilities of the ship or carrier prior to the time when the goods are loaded on or after the time when they are discharged from the ship."

 On its face, the statute applies to the first three claims brought by Reisman: those for breach of contract, negligence, and conversion. The analysis in Miller Export Corp. v. Hellenic Lines, Ltd, 534 F. Supp. 707, 710 ...


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