The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
Defendants Polskie Towarzystwo Okretowe/Polish Ocean Lines (Polish Lines) moves pursuant to Federal Rule of Civil Procedure 56 for an order granting partial summary judgment limiting to $500 per package its liability for damages to certain goods. Jurisdiction over his admiralty case is based on 28 U.S.C. §§ 1333 and 1337. Plaintiffs and the other defendants, Brooklyn Steel Warehouse Co. (Brooklyn Steel), oppose the motion.
The complaint alleges that in New York plaintiffs delivered nine boxes of tire making machinery in good condition to the M/V General Stanislaw Poplawski, a vessel owned by Polish Lines, for carriage to France. During the voyage the machinery was damages. Plaintiff E.M.S. Industries S.A. (E.M.S) had purchased it from McNeil Akron, the shipper named on Polish Lines' bill of lading. E.M.S engaged plaintiff Inter-Maritime & Fluvial S.A. (Fluvial), a Paris Freight forwarder, to arrange the shipment. Fluvial arranged with Inter-Maritime Forwarding (Inter-Maritime), a New York freight forwarder, to book the shipment with Polish Lines, which provided the bill of lading from later filled in by Inter-Maritime. Brooklyn Steel packaged the goods for shipment.
Plaintiffs seek $500,000 in damages. Polish Lines claims that its liability is limited by the United States Carriage of Goods by Sea Act (the Act), 46 U.S.C. § 3100, et seq., to $500 per package, or a total of $4500.
Section 1304(5) of the Act provides in pertinent part:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with transportation of goods in an amount exceeding $500 per package ... unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.
The Act applies to bills of lading for shipment of goods by sea between the United States and foreign ports. Admittedly plaintiffs did not state the value of the goods in the bill of lading. They argue, however, that the statutory limitation should not apply since Polish Lines did not provide them a fair opportunity to avoid it.
An express recitation in a bill of lading of the terms of section 1304(5) of the Act constitutes prima facie evidence that a fair opportunity to avoid the monetary limit was afforded the shipper. Petition of Isbrandtsen Company, 201 F.2d 281, 285 (2d Cir. 1953). The bill of lading here, however, reads in relevant part:
If this bill of lading covers goods shipped from the United States the provisions of the Carriage of Goods by Sea Act of U.S.A. which became effective on July 15, 1936 shall be deemed to be incorporated herein.
Until recently the United States Court of Appeals for the Second Circuit had never addressed the question whether such an incorporation of the Act by reference in the bill of lading constitutes prima facie evidence of the requisite fair opportunity. The other federal circuits are in conflict. Compare Komatsu, Ltd. v. States S.S. Co., 674 F.2d 806 (9th ...