to Ireland aboard Maersk Lines vessels. No copies of the prior bills of lading are attached to the motion papers. A more complete evidentiary record must be developed before the court is in a position to determine whether or not Garnay should be regarded as having agreed, through prior practice, to the extension of COGSA to BTT by means of the Himalaya clause that appears in the bill of lading presently in evidence.
The Himalaya clause in that bill of lading provides in P 3(2) that the COGSA limitations and exonerations from liability extend to "any servant, agent, stevedore or sub-contractor of the Carrier. . . ." Defendants say that given the relationship between BTT and Maersk Lines, the clause unambiguously refers to BTT. Garnay says the language is ambiguous, and if Maersk Lines intended to include an "inland carrier" such as BTT in the clause, it should have said so specifically, citing Lucky-Goldstar, supra, among other authorities.
Since a more complete evidentiary record must be developed to determine whether or not the Himalaya clause is a part of the contract between the parties, I defer judgment on the meaning of the clause, and will allow further exploration by discovery on that issue as well. See Citrus Marketing Board of Israel v. J. Lauritzen A/S, 943 F.2d 220, 223 (2d Cir. 1991).
It follows from the foregoing that the motion for summary judgment on behalf of Maersk Lines and BTT must be denied.
I also deny plaintiff Garnay's motion for summary judgment. Accepting arguendo Garnay's contention that BTT's liability is that of a bailee under South Carolina law, a bailee is not liable if he sustains the burden of proving due or ordinary care on his part. See Industrial Welding Supplies, Inc. v. Atlas Vending Co., Inc., 276 S.C. 196, 277 S.E.2d 885 (1981). All the present sketchy record reveals is that the container was stolen from BTT's lot. BTT, assuming it is properly cast as a bailee, is entitled to prove that it exercised reasonable care in guarding against theft. That issue is not appropriate for summary disposition, at least on the present record.
Assuming that COGSA principles apply to these defendants, questions of fact exist with respect to the condition of the cargo upon delivery to defendants, and its condition upon eventual recovery, with particular reference to why Cara Partners refused to accept the leaves.
Garnay contends that viewing the case in a COGSA context, it has established a prima facie case. Generally, that requires proof of delivery of the goods to the carrier in good condition and out-turn of the goods by the carrier in a damaged condition. In the case at bar, the leaves constituted a perishable commodity, and their internal condition was not revealed to the carrier, the bales having been placed into the container by the shipper at the inland point of loading. In these circumstances, the shipper must go beyond a clean bill of lading, and prove actual condition of the goods at the time they were delivered to the carrier. See, e.g., Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 353 (2d Cir. 1981).
Garnay has not yet made that showing. The certificate Garnay issued on October 17, 1989 with respect to these 117 bales of leaves gives particulars only with respect to the weight of the bales. The certificate does recite that the leaves were harvested during the 1989 crop, but there is no specific reference to the leaves' internal condition. Perhaps this sort of certificate is sufficient to establish actual good condition of leaves such as these, but I cannot make that determination on the present record.
As for the leaves' condition when recovered by Garnay from the FBI, the Cara Partners survey appears to specify as the primary reason why the leaves were rejected the fact that Cara Partners "did not have control of the raw materials from time of harvesting to processing." Arguably that is not a cause related to the physical condition of the leaves, so that the second prong of a prima facie case is not made out. To be sure, the Cara Partners survey also says "there is a very significant decrease in the percentage dry extract which is most unusual." The question is whether the physical condition of the leaves, standing alone, was sufficient to cause their rejection by the consignee. This may be further explored in discovery.
For these reasons, plaintiffs' motion for summary judgment fails as well.
The Motion of the United States
The United States as a sovereign nation is immune from suit unless that immunity has been waived by statute.
In this court, the third-party defendants and forth-party plaintiffs assert jurisdiction over the government pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"). The FTCA provides generally that the United States shall be liable, to the same extent as a private party, "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment." § 1346(b). However, that broad waiver of sovereign immunity is subject to specified exceptions. § 2680(a)-(f), (h)-(n). One of those exceptions, § 2680(c), provides that § 1346(b) shall not apply to
Any claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.
In Kosak v. United States, 465 U.S. 848, 79 L. Ed. 2d 860, 104 S. Ct. 1519 (1984), the Court held that § 2680(c) precluded recovery from the United States in tort for injury to private property sustained during a temporary detention of the property by the Customs Service. The plaintiff, a serviceman transferred from Guam to Philadelphia, brought his collection of oriental art with him. The Customs Service seized the art collection but returned the objects to plaintiff after various legal issues were resolved in plaintiff's favor. Plaintiff then filed an action under the FTCA, alleging "that some of the objects returned to him had been injured while in the custody of the Customs Service." 465 U.S. at 850. The Court held that § 2680(c) barred "suits alleging that customs officials injured property that had been detained by the Customs Service," id. at 862, accepting the government's argument that the § 2680(c) exception covered "all injuries to property sustained during its detention by customs officials." Id. at 853 (footnote omitted).
Because Kosak involved the conduct of customs officers, the Court found it unnecessary to decide what kinds of law-enforcement officers other than customs officials are covered by the exception. Id. at 852 n.6.
The Supreme Court's opinion in Kosak specifically rejects the Second Circuit's rationale and holding in Alliance Assurance Co. v. United States, 252 F.2d 529 (2d Cir. 1958). In Alliance, the Second Circuit held that § 2680(c) did not bar a claim against the government in tort arising out of the disappearance of plaintiff's goods from the Public Stores maintained by the Customs Service for inspection of incoming goods. The Second Circuit reasoned:
That the exception does not and was not intended to bar actions based on the negligent destruction, injury or loss of goods in the possession or control of the customs authorities is best illustrated by the fact that the exception immediately preceding it expressly bars actions "arising out of the loss, miscarriage, or negligent transmission" of mail. 28 U.S.C.A. § 2680(b). If Congress had similarly wished to bar actions based on the negligent loss of goods which governmental agencies other than the postal system under took to handle, the exception in 28 U.S.C.A. § 2680(b) shows that it would have been equal to the task. The conclusion is inescapable that it did not choose to bestow upon all such agencies general absolution from carelessness in handling property belonging to others.