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JUDY-PHILIPPINE INC. v. S/S VERAZANO BRIDGE

October 23, 1992

JUDY-PHILIPPINE INC., Plaintiff, against S/S VERAZANO BRIDGE, S/S LALANDIA, S/S HYUNDAI COMMANDER, their engines, boilers, tackle, etc., HYUNDAI MERCHANT MARINE CO. LTD., PAC BRIDGE SHIPPING, LTD., Defendants.


The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Plaintiff Judy-Philippine, Inc. ("Judy-Philippine") has moved to amend its complaint pursuant to Rule 15 and for summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons set forth below, this motion is granted in part and denied in part.

 Prior Proceedings

 In an Opinion dated December 23, 1991, familiarity with which is assumed, Judy-Philippine, Inc. v. S/S VERAZANO BRIDGE, 781 F. Supp. 253 (S.D.N.Y. 1991), Judy-Philippine's motion for summary judgment on the issue of liability was granted, its motion on the issue of damages was denied, and the summary judgment motions of defendants Hyundai Merchant Marine Co., Ltd. ("Hyundai"), Pac Bridge Shipping, Ltd. ("PAC Bridge"), and third-party defendant Land Bridge Terminal, Inc. ("Land Bridge") were denied.

 Specifically, the Court held that:

 Judy-Philippine alleges that the missing goods were forth $ 34,514.45 and seeks that amount plus interest. The defendants contest this amount and, absent further evidence on the question of valuation, summary judgment on the issue of damages is not proper at this juncture.

 Id. at 260.

 The $ 34,514.45 amount was set forth in Judy-Philippine's Amended Schedule A appended to its Amended Complaint and was calculated as the total damages resulting from the loss of cargo contained in four containers that were shipped across the Pacific to the West Coast of the United States on the S/S VERAZANO BRIDGE, S/S LALANDIA, and S/S HYUNDAI COMMANDER. The following shortages were noted upon delivery to Judy-Philippine's warehouse in Carteret, New Jersey: container HDMU-4036180: 66 cartons worth $ 14,288.93; container NLSU-6026800: 35 cartons worth $ 12,363.31; containers HDMU-4064685 and KMTU-4011629: 25 cartons worth $ 7,862.21.

 Judy-Philippine has now moved pursuant to Rule 15(b) for leave to amend the Amended Complaint to reflect its damages in the amount of $ 66,852.00 and pursuant to Rule 56 for summary judgment in that amount plus interest, asserting that this amended figure represents the sound market value of the goods at destination and conforms to the evidence presented to the Court in support of its previous motion for summary judgment.

 In a footnote in the December 23, 1991 Opinion, the Court acknowledged that, although Judy-Philippine alleged $ 34,514.45 as the amount of its damages in the Amended Complaint of October 27, 1989, "some of the documents submitted by Judy-Philippine to the Court state a different amount," to wit, "$ 66,852.00 plus interest and costs." Id. at 260 n.6. This figure was reflected in the market value calculations made by Judy-Philippine's counsel, which were included as an exhibit to its Amended Notice of Motion for Summary Judgment. In addition, Judy-Philippine has offered as documentary evidence in support of this motion a set of price lists from 1989 and 1990 which allegedly specify the prices of the various lost goods. These lists were previously included as an exhibit to its Amended Notice of Motion for Summary Judgment.

 According to Judy-Philippine it is entitled by law to the sound market value of the goods at destination in the absence of a factual dispute.

 The defendants contest both the appropriateness of employing the market value measure of damages in this case and the amount of damages claimed by Judy-Philippine.

 Rule 15(a) provides in relevant part that "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Rule 15(b) states that:

 when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment.

 The amendment sought by Judy-Philippine is intended to make the Amended Complaint conform to the evidence presented in the course of its previous motion for summary judgment, as was noted by the Court at that time. See id. at 260 n.6. id. at 260 n.6. This amendment ...


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