The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
In this admiralty action alleging short delivery of cargo,
plaintiffs move for summary judgment under Rule 56,
In December 1987 plaintiff Sunland, Inc., a New York
corporation, purchased a quantity of Brazilian cashew nuts
from Cia. Industrial de Productos Alimenticios ("CIPA") in
Fortaleza, Brazil. The shipment consisted of 500 cartons of
first quality large whole cashews priced at $2.95 per pound
F.O.B. vessel at Fortaleza, and 200 cartons of first quality
pieces priced at $1.25 per pound. The total F.O.B. invoice
purchase price was U.S. $86,250. Sunland paid CIPA for the
cashews through an irrevocable letter of credit issued by
Chase Manhattan Bank in New York for the full purchase price,
payment to be made upon CIPA's presentation of specified
documents, including a full set of on board clean ocean bills
The complaint alleges that although the shipment was F.O.B.
vessel, CIPA arranged for the ocean transportation of the
goods from Fortaleza to New York with defendant Ivaran Lines
through the latter's agents at Fortaleza. Sunland insured the
cargo for physical loss and damage during transit with
plaintiff Hartford Fire Insurance Company under an open marine
On December 19, 1987 Marnosa Navegacao Ltda., acting "for
and on behalf of the Master", and "as agents only," issued at
Fortaleza an Ivaran Lines bill of lading reflecting the
loading of the 700 cartons of cashews on board the M.V.
"SAVANNAH." The printed form bill of lading recites:
"Particulars Furnished by Shipper of Goods." The typed
description of goods says:
1 (One) Container 20 FT said to contain 700
cartons brazilian cashew kernels as follows:
500 Cartons cashew L.W. 1's
In a column bearing the printed caption "gross weight in
kilos," there is typed opposite the reference to 500 cartons
the figures "12.000." Opposite the reference to 200 cartons,
there is typed "4.800," and then a total figure of "16.800."
It is common ground that the bill of lading shows the weight
of the 700 cartons of cashews to be 16,800 kilos, the
equivalent of approximately 37,037 pounds. The bill of lading
does not recite the weight of the 20-foot container into which
the 700 cartons were placed prior to loading on board the
Carrier received the above container(s) locked
and/or sealed and did not open the container(s).
Carrier did not tally the container's contents
nor did it weigh them. The weights or quantity
stated on this bill of lading are simply those
stated by the shipper and are not deemed to have
been issued by the carriers.
The bill of lading identifies the shipper as CIPA.
On the back of the bill of lading this printed ...