Nedlloyd Lijen B.V., a common carrier, appeals from a judgment of the Southern District of New York, Abraham D. Sofaer, J., 593 F. Supp. 546, awarding $80,332.00 in damages against it for its part in the death of plants shipped overseas in two containers aboard its vessel. Nedlloyd contends that under the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-15 (1982), its liability should be limited to $1,000.00
Mansfield, Oakes and Newman, Circuit Judges.
MANSFIELD, Circuit Judge:
We are once again called upon to interpret § 4(5) of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(5) (1982) ("COGSA" or "the Act"), which limits the carrier and ship's liability to "$500 per package . . ., or in case of goods not shipped in packages, per customary freight unit," unless the shipper explicitly declares a higher value. Appellant here, a Netherlands ocean carrier, appeals from a judgment of the Southern District of New York awarding $80,332.00 damages against it after a bench trial before Judge Abraham D. Sofaer, based on its role in the untimely death of more than 10,000 plants shipped overseas in two containers on board its ship, the M.V. "Nedlloyd Rotterdam." The district court applied the $500 "per package" limit of § 4(5). We hold instead that the plants were "goods not shipped in packages" within the meaning of the Act and accordingly reverse and remand the case for a determination of damages limited to $500 "per customary freight unit" used in shipments of this type.
In June 1980, appellee Binladen BSB Landscaping ("Binladen"), a Swiss company, contracted with appellant Nedlloyd Linjen B.V. ("Nedlloyd") to ship ten refrigerated containers loaded with plants from two locations in the United States to Saudi Arabia, where the plants were to adorn the palace grounds of that country's crown prince, who is not its king. Binladen and its agents packed and filled the containers, which were delivered to Nedlloyd and loaded on the M.V. "Nedlloyd Rotterdam," a fully containerized vessel, for the journey. Although most of the plants in eight of the ten containers arrived in Saudi Arabia intact and healthy, those within the remaining two containers were brittle and lifeless when opened and inspected by a Binladen employee in Jeddah.
In early 1982 Binladen brought a maritime action in the Southern District of New York for damages against Nedlloyd and against the M.V. "Nedlloyd Rotterdam."*fn1 Nedlloyd denied responsibility for the plants' death and also asserted an affirmative defense based on the limited liability provision of COGSA. In a pretrial memorandum of law Nedlloyd argued that neither container contained "packages"; rather, it contended, each of the two containers were a "package" in which the plants inside were shipped. Nedlloyd therefore claimed that its liability was limited to $500 per container. Alternatively it proposed that the plants were "goods not shipped in packages" and that its liability accordingly must be limited to $500 per customary freight unit, which it contended was also the container. Binladen counter-argued that the plants were individually prepared for shipping and that each therefore counted as a package under COGSA. It also argued that deficiencies in Nedlloyd's bill of lading served to strip the carrier of the benefit of COGSA's liability limits.
At trial in 1984 before Judge Sofaer, virtually all of the six days of testimony was devoted to evidence on liability. Evidence pertaining to the COGSA limitations on liability came out almost entirely in the exhibits, including the bills of lading and several depositions submitted in evidence during the trial. The latter show that one of the containers whose contents perished was the single container shipped from Houston, number ITLU-720073-6. its bill of lading described the contents as follows:
PARTICULARS FURNISHED BY THE SHIPPER
No. of Pkgs. Description of Packages and Goods 1 40' Reefer Container Said to Contain: 7,990
The other spoiled container had been shipped from Miami under a bill of lading that covered five containers. That bill described a similar type of shipment:
PARTICULARS FURNISHED BY THE SHIPPER
No. of Pkgs. Description of Packages and Goods
5/40' Reefer Containers Said to Contain 11735 Pcs. Live Plants Misc. and 24 Pkgs. Shade Cloth
Further itemization in the "Description" column listed the "NO. PCS." in the container in which plants died, SCXU-488906, as 2436.
Deposition testimony introduced at trial revealed that the Houston container was loaded chiefly with cacti and that the Miami container contained nearly twenty sorts of plants and trees. Although the parties agreed that the Miami plants were individually potted,*fn2 they disputed the nature of the packing of the plants in the Houston container. The deposition testimony of Antonio Eduardo Ramirez, the owner of Garden World Nursery in Laredo and the individual who had loaded the Houston container, included an item-by-item breakdown of the packing methods used. Read in conjunction with the nursery invoices for the sale, this testimony revealed that approximately 2,000 items were individually boxed, tied, or wrapped more than 2,000 others had been boxed or tied in an unspecified manner, and the remainder had ...