The opinion of the court was delivered by: KRAM
MEMORANDUM OPINION AND ORDER
SHIRLEY WOHL KRAM, U.S.D.J.
The above-captioned action is before this Court upon the cross-motions of the parties: plaintiff moves to strike defendants' assertion of an affirmative defense purporting to limit their liability to $500 per package; defendants move to enforce the affirmative defense and limit their liability (admitting liability for the purposes of these motions only) to $500 per package, pursuant to 46 U.S.C. § 1304(5). For the reasons stated below, both motions are DENIED.
Plaintiff, Agfa-Gevaert, Inc. ("Agfa"), is a New Jersey corporation, and is the domestic affiliate of Agfa-Gevaert N.V. ("N.V."). N.V. manufacturers photographic film.
Defendant Trans Freight Lines, Inc. ("TFL"), a Delaware corporation, is a common carrier. TFL was at all pertinent times the charterer of the "TFL ADAMS," a containerized cargo vessel engaged in the common carriage of goods between Europe and the United States.
On or about June 12, 1981, N.V. booked, through De Keyser Thorton ("DKT"), TFL's Antwerp agent, a shipment of film from Mortsel, Belgium to Port Elizabeth, New Jersey. (Stipulated Facts ("SF"), #5)* The booking called for the film to be transported in a refrigerated container (hereinafter called a "reefer"), to be provided by TFL, which was to be maintained at temperatures between eight and ten degrees centigrade. (SF, #5) A reefer container is externally different in appearance from a dry (non-refrigerated) container, although a reefer container can be used to transport unrefrigerated cargo. (SF, #7)
The freight paid for this shipment was $2,317.50. This sum was based on TFL's reefer rate of $128.75 per metric ton, with a minimum charge equal to that for eighteen tons. (SF, #19) The freight which would have beenpaid had N.V. booked dry transport was subtantially lower -- $1,638.75 based on a rate of $109.25 per metric ton, minimum of fifteen tons. (Id.)
Pursuant to the aforementioned booking, TFL designated a reefer container, TFLU 9451020, in which to transport the film. (SF, #7) This particular unit required an external power source to be operated as a refrigerating unit. (Id.) During the land portion of the carriage, a detachable diesel unit was attached to the reefer. (Id.)
On June 15, 1981, TFL pre-set and activated the reefer unit at a terminal in Rotterdam. (SF, #9) On June 16, 1981, the unit was sent to N.V.'s factory in Mortsel, a suburb of Antwerp, to be filled with the cargo. (SF, # 11) N.V. loaded the cargo into the reefer container and returned it to the Seaport Terminal in Antwerp the same day. (SF, #12)
On June 18, 1981, the loaded reefer container was moved by an independent trucker retained by TFL from Antwerp to the ECC terminal in Rotterdam. (SF, #13)
At all pertinent times prior to arrival at the ECC terminal, the refrigeration unit on the reefer container was in operation and temperatures maintained at between eight and twelve degrees centigrade. (SF, Exhs. A, B, D)
Upon arrival at the ECC terminal, the portable diesel power unit was detached and dropped off. (SF, #14) The reefer container was then transported to the ECT terminal in Rotterdam for loading upon the TFL ADAMS. (Id.) The refrigeration unit on the reefer container was turned off for approximately one hour between the drop off of the portable power unit and delivery to the ECT terminal. [Id.]
The following day, the reefer container was loaded aboard the TFL ADAMS, pursuant to TFL's stowage plan, which called for the container to be stowed above deck ...