The opinion of the court was delivered by: SWEET
Plaintiffs Ulrich Ammann Building Equipment Ltd. and Gothaer Versicherungs Bank A.G. (collectively "Ammann") brought this action to recover for damage to and loss of Caterpillar tractors shipped from Wilmington, Delaware to the Port of Agaba, Jordan on the M/V MONSUN. Defendant in rem M/V MONSUN and defendants K. G. Zyklon Schiffahrtsges mbH & Co., Hugo Stinnes Sweigniederlassung, Saudi National Lines and Costa Armatori S.p.A. (collectively "the Ship Defendants") have now moved for partial summary judgment pursuant to Fed.R.Civ.P. 56 limiting Ammann's damages to the $500 limitation contained in the United States Carriage of Goods by Sea Act ("COGSA"). The parties agree that all evidence as to this matter was before the court. Ammann opposed the motion for partial summary judgment and has moved to strike the Ship Defendants' assertion of this limitation of liability as an affirmative defense. For the reasons stated below, the Ship Defendants' motion for partial summary judgment is granted and Ammann's motion is denied.
The cargo which is the subject of the present action was carried from Wilmington, Delaware to the port of Agaba, Jordan on the M/V MONSUN pursuant to the terms of an ocean bill of lading. The M/V MONSUN is owned by K.G. Syklon Schiffahrtsges mbH & Co. ("Schiffahrtsges"), the managing agent was Hugo Stinnes Sweigniederlassung ("Zweigniederlassung"), the time charterer of the vessel was Saudi National Lines ("Saudi National"), and the general agent for Saudi National was Costa. The shipping agent of Kuehne and Nagel ("Kuehne") acted as shipping and forwarding agent for Ammann.
In March of 1981, on Ammann's behalf, Kuehne booked thirty Caterpillar tractors, known as scrapers, for ocean carriage with Saudi National through its agent Costa, in Genoa, Italy. In accordance with 46 U.S.C. § 817(b)(1), Saudi national had a tariff on file with the Federal Maritime Commission and maintained rates for the transportation of commodities pursuant to such tariff. Instead of applying a rate from Saudi National's tariff, which would have provided for freight on a weight or measurement basis, a lump sum rate was negotiated covering the entire shipment. On March 13, 1981, a tariff amendment setting forth this lump sum rate was filed. The tariff shows the following reference to the scrapers:
Scrapers - 30 units to moveon 1 or 2 vessels Aprox. 866 LT/156,690 cu ft. (Wilmington/Agaba (& thru 4/12/81) L/S 289,877.00
The rate basis in effect for this tariff item was "L/S," which is defined in the tariff as lump sum. The tariff on file listed the normal rate for scrapers at a minimum of $173.00 per measurement ton.
Subsequently, twenty Caterpillar tractors were carried under Saudi National's short form ocean bill of lading. The bill of lading described the twenty scrapers and listed both the gross weight in kilograms and the measurement in centimeters. The bill of lading also stated "Freight Prepaid" and, under the area for computation of freight charges, "Freight as Agreed." During the course of the shipment, several of the tractors were allegedly damaged or lost.
Because the shipment was carried under an ocean bill of lading, it was subject to the provisions of the Carriage of Goods by Sea Act. 46 U.S.C. § 1304 states:
§ 1304. RIGHTS AND IMMUNITIES OF CARRIER AND SHIP
(5) Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States,or in case of goods not shipped in packages, per customary freight unit or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.
By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.
Neither the carrier nor the ship shall be responsible in any event for loss of damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and ...