The opinion of the court was delivered by: Sand, District Judge.
The facts of this case are set out in this Court's prior
Opinion dated February 21, 1990, familiarity with which is
assumed. See Monica Textile Corp. v. S.S. Tana, 731 F. Supp. 124
(S.D.N.Y. 1990) ("Monica I"). Since the date of that Opinion,
the factual record has changed in only one respect. Defendants,
through additional discovery, have adduced evidence that the
entity which filled out the bill of lading was acting as
plaintiff's agent, and not as defendants' agent, as this Court
previously had assumed.*fn1
In our February 21, 1990 Opinion, this Court denied
defendants' previous motion for summary judgment, holding that
the container in which plaintiff's bales of cloth were shipped
was not the COGSA package for purposes of COGSA's liability
limitation. See id. at 127. Defendants' motion for an order
certifying the package issue for immediate interlocutory appeal
was denied on March 20, 1990.
At a subsequent pre-trial conference the Court, on the
consent of the parties, determined that defendants would be
permitted to reargue their summary judgment motion on the
condition that they admit liability for the damages sustained
by plaintiff's goods during the voyage. The parties' agreement
was formalized in a Consent Order endorsed by this Court on
February 14, 1991. That Order specified that after ruling on
defendants' renewed motion for summary judgment, this Court
would enter judgment for plaintiff in the amount of either
$34,000, if the motion were denied, or $500, if the motion were
Upon consideration of defendants' renewed motion for summary
judgment, this Court concludes that we must depart from our
prior Opinion and grant defendants' motion. Subsequent to the
issuance of our prior Opinion, the Second Circuit issued an
Opinion in Seguros "Illimani" S.A. v. M/V Popi P, 929 F.2d 89
(2d Cir. 1991), a case which directly raised the issue of how
courts should determine the number of COGSA packages in
admiralty cases. The Seguros Court began its analysis by noting
that in determining the number of packages, courts must look to
the bill of lading as the expression of the intent of the
parties. See id. at 94. Regarding the procedure to be applied
in interpreting the bill, the Court wrote:
The number appearing under the heading "NO. OF
PKGS." is our starting point for determining the
number of packages for purposes of the COGSA
per-package limitation, and unless the
significance of that number is plainly
contradicted by contrary evidence of the parties'
intent, or unless the number refers to items that
cannot qualify as "packages," it is also the
ending point of our inquiry. . . . [P]arties to a
bill of lading should expect to be held to the
number that appears under a column whose heading
so unmistakably refers to the number of packages.
That approach, evident in our more recent cases, .
. . encourages precision in filling out a key
aspect of important documents, and the more
consistently it is followed, the more it should
Id. at 94 (citations omitted).
In this case, the number "1" is typed on the bill of lading
under the column entitled "NO. PKGS."*fn2 The evidence of
record regarding the parties' intent does not plainly
contradict defendants' contention that the container was the
one COGSA package intended by the parties. While there is some
evidence that plaintiff may have understood the bales of cloth
shipped in the container to be individual packages, there is
also evidence to the contrary. This includes the evidence newly
produced by defendants indicating that the entity which
prepared the bill of lading was paid by plaintiff and may have
been acting as plaintiff's agent, and the fact that Clause 2 in
the bill of lading defines "package" to include containers
packed by the shipper, as occurred in this case.
Nor is it correct, as plaintiff asserts, that a shipping
container cannot qualify as a COGSA package. While in prior
cases the Second Circuit has been reluctant to find a container
to be the COGSA package, it is clear that, at least in some
circumstances, a container can qualify as the COGSA package.
See Binladen BSB Landscaping v. M.V. "Nedlloyd Rotterdam",
759 F.2d 1006, 1013 (2d Cir.) (container may be package where
parties so intend, or where bill of lading does not disclose
contents of container), cert. denied, 474 U.S. 902, 106 S.Ct.
229, 88 L.Ed.2d 229 (1985); Smythgreyhound v. M/V "Eurygenes",
666 F.2d 746, 753 n. 20 (2d Cir. 1981) (container may be
package where clear language of bill of lading shows parties'
intent to that effect); Mitsui & Co. v. American Export Lines,
Inc., 636 F.2d 807, 821 (2d Cir. 1981) (container generally not
package, but may be if contents undisclosed). As such, it
cannot be said that a container can never qualify as a COGSA
In sum, applying the rule of Seguros to the facts of this
case, we find that there was one COGSA package, the container.
This conclusion flows from the facts that the number "1"
appears on the bill of lading in the number of packages column,
the other evidence of the parties' intent does not plainly
contradict the significance of that number, and shipping
containers are capable of ...