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LUCKY-GOLDSTAR v. S.S. CALIFORNIA MERCURY

November 7, 1990

LUCKY-GOLDSTAR INT'L (AMERICA), INC., PLAINTIFF,
v.
S.S. CALIFORNIA MERCURY, HER ENGINES, BOILERS, ETC., MITSUI O.S.K. LINES LTD., HANIEL CONTAINER SERVICE AND CONSOLIDATED RAIL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Leisure, District Judge:

ORDER & OPINION

Plaintiff seeks $62,500 for damage to a machine that allegedly occurred while the machine was in transit between Busan, Korea, and South Kearny, New Jersey. Defendant Consolidated Rail Corporation ("Conrail"), has moved for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking to limit its potential liability to $500 under 46 U.S.C.App. §§ 1300-1315, the Carriage of Goods by Sea Act ("COGSA").

BACKGROUND

Plaintiff Lucky-Goldstar Int'l (America), Inc., ("Lucky"), seeks recovery of $62,500 from the above-named defendants for damage to an injection molding machine (the "shipment"), which allegedly occurred during a three-stage journey from Busan, Korea to Seattle, from Seattle to Chicago, and from Chicago to South Kearny, New Jersey.

On December 8, 1988, Lucky delivered the shipment to defendant, Mitsui O.S.K. Lines ("Mitsui"), at a container yard in Busan, Korea. Affidavit of Ara A. Shimshidian, Esq., sworn to on July 19, 1990 ("Shimshidian Aff.") ¶ 4. At the container yard, the shipment was packed into a container and loaded onto the ship M/V California Mercury for transport to Seattle, Washington.

Before the shipment left Korea, two bills of lading were issued. The first was issued to Lucky by Haniel Container Service ("Haniel"). The Haniel bill of lading designated Lucky's Korean office as the shipper and Lucky's New Jersey office as the consignee. Haniel Bill of Lading No. 88US12016, Affidavit of Michael J. Siris, Esq., sworn to on June 20, 1990 ("Siris Aff."), Exh. D. The second bill of lading was issued to Uni-International Co., Ltd. ("Uni"), as the shipper on behalf of Lucky, and designated Haniel's New York office as the consignee. Mitsui Bill of Lading No. M112-01114 (the "Mitsui Bill of Lading"), Siris Aff., Exh. C.

The shipment arrived in Seattle on December 21, 1988. MOL Intermodal, Inc. ("MOL"), a non-party, arranged for the shipment to be carried by rail from Seattle to South Kearny, New Jersey. MOL contracted with two railroads to carry the shipment to South Kearny. Pursuant to those contracts, Burlington Northern Railroad Company (BNR) transported the shipment from Seattle to Chicago, where it was transferred to Conrail. Conrail then carried the shipment from Chicago to South Kearny, the final destination.

Upon arrival of the shipment at South Kearny, Conrail employees noted that it was severely damaged. Shimshidian Aff., Exh. E. Lucky thereafter commenced this action on December 28, 1989.

Conrail now seeks a determination by the Court that Conrail's total potential liability is limited to $500, as provided by COGSA. Conrail argues that although COGSA's liability limitations usually apply only to marine transportation, those limitations may be, and have been, extended to Conrail under a clause in the Mitsui Bill of Lading protecting Mitsui's agents, servants, and subcontractors.

Lucky, Mitsui and Haniel argue that, as a matter of law, defendant is not entitled to partial summary judgment for several reasons. First, COGSA directly applies only during marine transport. Second, the Mitsui Bill of Lading clause extending protection to Mitsui's agents and subcontractors can be construed not to include railroads. Third, Conrail has failed to present evidence to establish that it was a "sub-contractor" of Mitsui.

In addition, Haniel argues that Conrail is not entitled to partial summary judgment because it failed to comply with Rule 3(g) of the Civil Rules of this Court, which requires the party moving for summary judgment to submit a brief statement setting out what it views as the non-disputed material facts in the case.

DISCUSSION

I.  Conrail's Failure to File a 3(g) Statement

Before considering the substantive aspects of Conrail's motion, the Court must address Haniel's procedural argument that Conrail's motion should be denied because Conrail failed to comply with Local Civil Rule 3(g). Rule 3(g) requires the movant to submit with a motion for summary judgment "a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Failure to comply with Rule 3(g) may "constitute[] grounds ...


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