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SAIL AMERICA FOUND. v. M/V T.S. PROSP.

November 21, 1991

SAIL AMERICA FOUNDATION AND EAGLE SYNDICATE, PLAINTIFFS,
v.
M/V T.S. PROSPERITY, IN REM V. NL BRIER SHIPPING (PANAMA) S.A., AND BOWEN SHIPPING CO., INC., DEFENDANTS.



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

OPINION & ORDER

Background

In 1986, various sailing syndicates competed in the Americas Cup competition in Fremantle, Australia. At the conclusion of the competition, several American sailing syndicates, including plaintiffs in this action, took steps to transport their equipment to the United States. The syndicates hired an international freight forwarder, European Ocean Freight, Inc. ("EOF"), to secure transportation of the equipment to the United States. In its efforts, EOF worked with a New York-based freight forwarder, Alfred E. Bowen, Inc. ("Bowen"), though EOF negotiated on behalf of plaintiffs at all times. Both freight forwarders hoped to consolidate the various syndicates' cargo into a single shipment in order to obtain economies of scale.

The two freight forwarders agreed that Bowen would arrange transportation for the syndicates' cargo. To this end, Bowen entered into a booking note agreement with T.J. Stevenson & Co. under which Bowen agreed to book certain on-deck and below-deck space aboard the vessel T.S. Prosperity ("TSP"), which is owned by defendant N.L. Brier Shipping, N.A. ("NLB"), for the carriage of the syndicate's cargo from Australia to the United States. In 1987, the TSP arrived in Fremantle for purposes of loading the syndicate's cargo for transport to the United States.

Bowen issued a bill of lading to plaintiffs. These bills are identical except for their description of the cargo. The bills specifically incorporate the $500 per package limitation of liability contained in the United States Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C. App. § 1300 et seq. The bills also state that Bowen is the sole carrier and that Bowen alone will be liable as a carrier under the bill of lading. These bills provide in relevant part:

2. Definitions:

    c. "Goods" as used herein means all cargo
    including the deck cargo described by the
    Shipper on Page One of this B/L, including the
    boxes, bundles, containers, trailers, tanks,
    lifts, flats, pallets or other packages,
    shipping units or articles of transport used to
    consolidate cargo, in or on which they are
    transported.
    b. During all other periods of the Carrier's
    responsibility for the Goods, except as
    otherwise specifically provided for herein the
    rights and liabilities of the parties to this
    B/L with respect to the Goods shall be governed
    by the United States Carriage of Goods By Sea
    Act . . . which shall be deemed to be
    incorporated herein; and all other statutes and
    laws compulsorily applicable to this B/L during
    such periods.
    c. Limitation of Liability. In any event, the
    Carrier shall not be liable for any loss or
    damage to or in connection with the Goods in an
    amount exceeding U.S. $500 per package, unless
    the nature and a higher valuation of the Goods
    have been declared by the Merchant before
    shipment and inserted in this B/L. Such a
    declaration shall be prima facie of the value of
    the Goods, but not conclusive on the Carrier.
    When not repugnant to a compulsorily applicable
    statute or law, "package" is defined as all
    pieces of cargo shipped individually and not
    prepared in any manner for transport, and all
    containers as defined in . . . this B/L.
    e. Any provision or any part of a provision of
    this B/L which is repugnant to a statute or law
    compulsorily applicable to this B/L is void, but
    only for that period during which said statute
    to limit or deprive the Carrier of any statutory
    or law compulsorily applies and nothing in this
    B/L shall operate liberty, defense, exemption or
    limitation of liability.
    f. The Carrier's defenses, exceptions, limits of
    liability, liberties and the like provided for
    by this B/L shall apply in all proceedings
    against the Carrier with respect to the Goods
    whether they be grounded in contract or tort.

Plaintiffs allege that the defendants are liable for damage inflicted on two pieces of their cargo that plaintiffs had placed on board the TSP. Sail America Foundation ("SAF") contends that its motorized tender boat, Betsy, incurred damages during the trip to America. The Betsy is a 64 foot long motor yacht used by SAF for various non-racing functions. Defendants stowed the Betsy on the No. 1 hatch cover on the TSP's deck. Eagle Syndicate ("Eagle") asserts that its 100-foot long sailing mast, which was part of its twelve meter yacht, also sustained damages during this trip. The mast was also carried on the TSP's deck. It is not disputed that all parties consented to transport of the cargo on the deck of the TSP. The TSP arrived in Long Beach, California with plaintiffs' cargo on April 14, 1987. Plaintiffs gave notice of the alleged damage to their cargo in May 1987 and then commenced the instant action. Discovery is complete.

Defendants N.L Brier and the TSP have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 to dismiss plaintiffs' action or, in the alternative, for partial summary judgment limiting plaintiffs' maximum recovery to $1,000. Defendant Bowen has also moved for partial summary judgment limiting plaintiffs' maximum recovery to $1,000. For purposes of these motions, the defendants will assume that plaintiffs' cargo incurred damage. Plaintiffs have ...


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