Tyler. The M/V President Tyler is owned and operated by APL. APL
issued one bill of lading for each sterilizer within the
container. The bills of lading named KAM Container Line, U.S.A.
as the shipper and KAM Container Line as the consignee. APL's
vessel sailed from New York for Taiwan. On November 28, 1986,
after the President Tyler had left port, Comet issued a separate
bill of lading covering the entire shipment naming Environmental
Tectonics as shipper and Academia Sinica as consignee. The
shipment was delivered to Taiwanese customs on December 24, 1986.
The goods were "unstuffed" at APL's Container Terminal, were sent
through customs, and arrived at Academia Sinica on January 8,
1987, where the damage was first noticed. A survey on the extent
of the damage was conducted on January 14, 1987, on the premises
of Academia Sinica. It is unclear on the papers whether the goods
were received by Academia Sinica (or an agent) directly from APL,
or from some other carrier in between. A complaint was filed on
November 30, 1988.
I. APL's Motion for Summary Judgment
Defendant APL moves for summary judgment, arguing that the suit
is time-barred under the provisions of COGSA. COGSA governs ocean
carriage pursuant to bills of lading or other documents of title.
46 U.S.C.App. § 1300. Bills of lading must state, in what is
termed a "clause paramount," that they are subject to the express
provisions of COGSA. 46 U.S.C. App. § 1312. COGSA establishes the
responsibilities, liabilities, rights and immunities of the
carrier and the ship. 46 U.S.C. App. § 1305. APL argues that the
instant lawsuit is time-barred under 46 U.S.C.App. § 1303(6),
which provides: "[T]he carrier and the ship shall be discharged
from all liability in respect of loss or damage unless suit is
brought within one year after delivery of the goods or the date
when the goods should have been delivered."
Plaintiff AMIC responds that no bill of lading exists
evidencing a contract of carriage between APL and AMIC, and that
COGSA is therefore inapplicable. AMIC argues that its cause of
action sounds in the common law of bailments, for which the
limitation period is two years.
AMIC's argument is without merit. Assuming arguendo that
AMIC's subrogor is Environmental Tectonics, Academia Sinica, or
another holder of the bill of lading issued by Comet, the terms
of that bill of lading, as a contract of carriage, contemplate
ocean carriage and the applicability of COGSA, in addition to
specifically incorporating the terms of the bill of lading issued
The Comet bill of lading states that the shipment is to be
loaded on the M/V President Tyler in New York. Chang Aff.Ex. G-1.
Furthermore, the front of the Comet bill of lading states that
Comet has received the goods "for shipment included under a
consolidated Ocean Bill of Lading issued and signed by the above
mentioned Steamship Company — all terms, conditions and clauses
printed or otherwise inserted on Steamship Company's Bill of
Lading to apply." Environmental Tectonics, the plaintiff's
subrogor, was thus bound to the terms of the vessel's bill of
lading, incorporated by reference.*fn1
Plaintiff's subrogor was also on notice that COGSA would apply.
Clause 5.0 of the Comet bill of lading contains the Clause
Paramount, stating that ocean carriage pursuant to the bill of
lading shall be governed by the terms of COGSA. AMIC advances no
effective arguments that the
contract was obtained by fraud or that it is otherwise
Even if the bill of lading issued by Comet to the shipper had
not given the shipper full notice that the ocean bill of lading
(and COGSA) would be applicable to the shipment, the shipper
would still be bound to Comet's arrangements of transport. As a
freight forwarder, Comet acted as the agent of the shipper in
arranging transport. Reisman v. Medafrica, 592 F. Supp. 50, 53
(S.D.N.Y. 1984) (quoting United States v. Ventura,
724 F.2d 305, 310-11 (2d Cir. 1983)).
Furthermore, it would be unreasonable to obligate M/V President
Tyler and APL beyond the terms of its bill of lading. APL's bill
of lading expressly referred to COGSA. No argument has been made
showing why plaintiff's subrogor, who had notice that COGSA was
applicable to the vessel's carriage of the goods through the bill
of lading issued by Comet, should be released from the terms of
the ship's bill of lading.*fn3
Pursuant to the bills of lading, M/V President Tyler and its
owner, APL, are entitled to the benefits of COGSA, including the
one-year time limit in which to bring suit. In fact, irrespective
of the terms printed in the bill of lading, COGSA expressly
limits the carrier's exposure to suit to one year after delivery.
46 U.S.C. App. § 1303(6). Plaintiff's complaint against M/V
President Tyler and APL is time-barred.
II. Comet's motion for summary judgment
Comet moves for summary judgment, adopting APL's arguments of
law that plaintiff AMIC's claims are time-barred. Comet issued a
bill of lading on November 28, 1986. That bill of lading named
Environmental Tectonics as shipper and Academia Sinica as
consignee, noting that ocean transport was being provided by M/V
The bill of lading issued by Comet governs its relationship
with Environmental Tectonics, the shipper.*fn4 Clause 8.2, which
appears on the back of Comet's bill of lading, in fine print, is
"Time Bar." It states, "[T]he Carrier shall be discharged of all
liability unless suit is brought in cases where the liability of
the Carrier is determined by the legislation or rules referred to
in Clause 5 [COGSA] hereof within twelve months, and in all other
cases within the time permitted by the law or provisions pursuant
to this Bill of Lading. . . ."
Comet claims that the plaintiff is barred from bringing suit by
Clause 8.2. Due to an ambiguity in the meaning of the word "the
Carrier," however, it is unclear whether Clause 8.2 of the
contract covers only the vessel which actually carries the goods,
in this case the President Tyler, owned by APL, or Comet, the
freight forwarder and issuer of the bill of lading.
First, the back of the bill of lading, including Clause 8.2,
appears generally to apply to a vessel, as its clauses govern,
among other things, loading procedures, collision rules, and
stowage. Second, the front of the bill of lading states, "This
Bill of Lading is issued by Comet International Transport solely
as Forwarders and Distributers and not as Carriers. . . ." Third,
the front of the bill of lading contains the statement, "It is
further agreed by the Shipper, Consignee and Owner that the
custody and carriage of the goods . . . is the responsibility of
the Ocean Carrier. . . . All terms and conditions of shipment are
covered by the Bill of Lading of the Ocean Carrier herein
mentioned." This language suggests that Clause 8.2, "Time Bar,"
is either inapplicable to the instant transaction, because the
terms of shipment are covered by the Bill of Lading issued by
APL, or that Clause 8.2 is for the benefit of the vessel, rather
On the other hand, Clause 1.0 on the back of the bill of lading
defines Carrier as "the party on whose behalf the Bill of Lading
has been issued as indicated on the face thereof." The front of
the bill of lading contains the following paragraph:
"Received from the Shipper . . . goods . . . for
shipment included under a consolidated Ocean Bill of
Lading issued and signed by the above mentioned
Steamship Company — all terms, conditions and clauses
printed or otherwise inserted on Steamship Company's
Bill of Lading to apply. In witness whereof the
undersigned, signing on behalf of Comet
International Transport has affirmed . . . etc.
It is a possible interpretation, albeit strained, that "Carrier,"
when used on the back of the bill of lading, refers to Comet, the
party on whose behalf the bill of lading has been issued,
although the word "Carrier," when used on the front of the bill
of lading, clearly refers to APL and its vessel, the President
Comet has not made any relevant arguments that it is otherwise
covered by the provisions of COGSA. Comet's motion for summary
judgment on the grounds that it is entitled to a one-year statute
of limitations is denied.*fn5
APL's motion for summary judgment on the grounds that the
action is barred by the statute of limitations is granted.
Comet's motion for summary judgment is denied.