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July 2, 1986


The opinion of the court was delivered by: COOPER


Plaintiff, the consignee and receiver of a shipment of one container of "household goods" including expensive Persian rugs delivered to her three years after it was shipped from the nation of Bahrain, brings this action to recover damages arising from the delay in delivery. Defendants, the carrier and several of her agents, counterclaim for a lien on the shipment for costs connected with stopping and holding the cargo as well as expenses incurred in litigation arising out of this matter. A trial by submission was held before us on January 6, 1986. *fn1"

In open Court, plaintiff moved for summary judgment dismissing the counterclaim on the basis that it violates the Shipping Act of 1916; defendants moved that the case be dismissed on the grounds that the plaintiff had no interest in the goods, thus no right to bring the suit, and that since the shipper misdescribed the rugs as household items in the bill of lading, the carrier should not be liable for any consequences to the rugs. We reserved decision on the motions.

 At the conclusion of the trial decision was reserved; post-trial briefs were received from defendants on March 18, 1986, from plaintiff on April 29, 1986.


 In the latter half of 1980, Mr. Kamran Ataei, residing in Bahrain, sent 107 packages of household goods, including 18 (Ex. 2c at 27, 30) *fn2" valuable Persian rugs to his mother, plaintiff Galin Ataei, who resided in San Jose, California. The goods travelled in a 20 foot container on board defendants' carrier, the M/V Barber Tonsberg, travelling from Bahrain to Los Angeles then onto San Jose pursuant to a straight, non-negotiable bill of lading dated August 9, 1980 (S.F. No. 1; Ex. A) that designated as the shipper not the name of plaintiff's son, Mr. Kamran Ataei; it bore the name "Sahel Exhibition Persian Carpets" (S.F. No. 2), a store owned by a Mr. Mohammed Eshaq. According to the Director of the Bahraini Criminal Investigations, Mr. Ataei was employed by Mr. Eshaq. (Ex. B) The bill of lading listed plaintiff as the consignee (S.F. No. 2) and confirmed that the freight had been pre-paid. (S.F. No. 3) The shipment was to arrive in San Jose on or about October 13, 1980. (S.F. No. 10)

 The M/V Barber Tonsberg sailed from Bahrain on September 8, 1980. (S.F. No. 4) Approximately ten days later, while en route to its stop in Yokohama, Japan, the carrier received a communication from Sahel Exhibition Persian Carpets claiming that the Persian carpets in the container were stolen from the alleged true shipper; the store requested the the container remain on board for delivery back to Bahrain. (S.F. No 5) Subsequent to September 18 and prior to September 24, the Bahrain Criminal Investigation Directorate ("CID") orally communicated to defendants a request that the carpets be stopped. (S.F. No. 6) The notice was confirmed in a letter dated September 24, 1980; the translation into English from Arabic reads:

 [Mr. Eshaq] has reported to the Police that an employee . . . stole a quantity of valuable Iranian Carpets, and shipped the stolen carpets in a container through your agency via M/V Barber Tonsberg . . .

 As this container is connected to a criminal case, you are requested to please stop the shipment and off load at the nearest port, to be returned to Bahrain at the expenses of the complainant who has submitted a legal declaration . . . certifying that he will be responsible for any civil disputing the ownership of said property.

 (signed) (Director, CID)

 See also S.F. No. 7.

 After receiving this letter, defendants contacted Mr. Murad Saleh, Esq., a Bahraini attorney, who advised them over the telephone (Ex. 2B at 20) that if they did not comply with the order, they might be subject to criminal prosecution for aiding the offender. (Ex. 2B at 5)

 The carrier arrived in Japan between September 25-30, 1980, discharged the container in Yokohama (S.F. No. 11) and departed on September 30 for Los Angeles where it arrived on October 11, 1980. (S.F. No. 10) On October 27 the carrier received a communication from the Bahraini CID informing it that Mr. Ataei had been charged with stealing the rugs and ordering defendants to return the container to Bahrain (S.F. No. 8) under threat of prosecuting the carrier if it failed to comply. The CID document stated:

 The Public Prosecutor, Bahrain, . . .hereby orders Barber Blue Sea . . . that the . . . container be returned to Bahrain by the first available ship. Failure to comply immediately with this order will render you liable to criminal prosecution in Bahrain.

 (Ex. F-4)

 The carrier did not make any move toward returning the container to Bahrain, and 11 days later, on November 7, 1980, plaintiff commenced an action in Yokohama; the Japanese court issued an order on that date stating that "[t]he properties . . . shall not be moved from . . . Yokohama by the obligor other than by shipment of the said properties by ship to Los Angeles, California, U.S.A." (Ex. C) Plaintiff posted 1.5 million yen (equivalent to $6,000) with the Japanese Court to cover the restraint; that money remains in that Court. (S.F. No. 12; Ex. C) Two days later plaintiff commenced the instant action in accordance with the jurisdictional clause of the bill of lading. (S.F. No. 13)

 Maintaining the contents of the container, the expensive Persian rugs, was costly. The carrier paid for surveys of the container (Ex. N), warehouse storage charges, also chemicals inserted into the container to avoid contamination. (Ex. N) Further, insurance was arranged (Ex. E) to protect the owner in case the rugs were stolen or caught on fire (the marine insurance which covered the cargo on the vessel was not applicable when it was discharged on shore). (Tr. 11)

 Since Mrs. Ataei did not receive the detained container holding, in addition to the Persian rugs, a variety of household goods: couches, chairs, a refrigerator, china, etc., she purchased replacements. (Ex. 2C at 14-16) According to plaintiff's son Mehran Ataei who resides with his mother, plaintiff spent more than $30,000 therefor. (Id.) However, no proof in support of this claim was introduced.

 On July 10, 1983, defendants were advised by Mr. Eshaq that he and Mr. Ataei had resolved their differences and that the container could be forwarded to its California destination. (S.F. No. 14; Ex. D) The Bahraini Court had considered the matter, and after reviewing an auditor's report, concluded that cash payments were made to Mr. Ataei by Mr. Eshaq totaling 169,897.410 Bahraini Dinars ("BD") (exchange rate unspecified); that BD 2,800.00 in sales proceeds assignable to Mr. Ataei were missing from Mr. Eshaq's store; that Mr. Ataei gave Mr. Eshaq BD 38,400.00 in dishonored checks; and that Mr. Ataei took carpets from the stock in Mr. Eshaq's store in the amount of BD 178,645.00. The Court ordered Mr. Ataei to pay to Mr. Eshaq BD 484,624, which included Court costs, expert's fees and attorney's fees. It should be noted that the Court did not expressly find Mr. Ataei criminally responsible. (Ex. F)

 The carrier shipped the goods to Mrs. Ataei on board the M/V Barber Priam for destination Los Angeles. (S.F. No. 15) When the goods were delivered to plaintiff, defendants issued an original freight bill with an annexed schedule detailing the following outstanding costs and expenses incurred in maintaining the goods since September 1980 (S.F. No. 16):

 $ 46,342.43 in legal fees incurred in New York, Japan and Bahrain 11,250.00 in insurance 2,604.23 to lease the container storing the rugs 2,072.69 in survey fees 2,049.30 in storage fees $ 64,318.74 TOTAL

 (Ex. E; J)

 All the cargo other than the rugs were delivered to plaintiff; the rugs were and continue to be held in escrow pending the outcome of this litigation. The defendants have not waived their lien. (Ex. AA)

 On October 5, 1983, plaintiff instituted a third action before the Federal Maritime Commission ("FMC") requesting declaratory and injunctive relief. In that action plaintiff claims that defendants' actions violated several sections of the Shipping Act; her claim for relief includes a court order directing defendants "to cease and desist from . . . violations of [the Act] and to establish, observe and enforce such just and reasonable regulations and practices relating to or connected with the handling, storing and delivery of property as the Commission may determine to be lawful; . . . to cease and desist from charging and demanding, and attempting to receive and collect [the costs of attorney's fees, insurance, lease of the container, survey and storage] as a precondition to their delivery of [plaintiff's] cargo; [and] that [defendants'] vessels be refused the right of entry into any port of the United States, or any Territory, District or possession . . . until . . . the violation has ceased. (Ex. V)

 In the instant case defendants contend plaintiff cannot recover damages for delay since clause 9 of the bill of lading limits defendants' liability. Plaintiff counters that defendants breached the bill of lading by unreasonably deviating from it and therefore cannot take advantage either of the limitation of liability clause or of any clauses which would allow it a lien on the shipment. Plaintiff further claims that defendants' tariff controls the charges that the carrier is entitled to, ...

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