Mukasey's interpretation of the significance of clause 11 because any other interpretation would render meaningless clause 9's invocation of the Hague Visby Rules and their amendments.
To resolve the ambiguity in the bill of lading, the court must first turn to the extrinsic evidence offered by the parties regarding their intents in signing it.
Empire Hair Processing Corp. v. S.S. Aconcagua, 1992 U.S. Dist. LEXIS 17570, 91 Civ. 0501, 1992 WL 354497, at *8 (S.D.N.Y. 1992) (Leisure, J.) (before rules of construction are applied to shed light on ambiguity in bill of lading, parties should be allowed to offer extrinsic evidence regarding their intents). In the context of a motion for summary judgment, the evidence that the court may examine is limited to "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," Rule 56(c), F.R. Civ. P., and the affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e), F.R. Civ. P.
Plaintiff submits a declaration by Jan Weijburg, director of SATEM N.V., the shipper of the cargoes at issue, dated October 24, 1994, which demonstrates that his intention in acceding to the bill of lading was to increase the carrier's maximum liability to above $ 500 per package. Plaintiff is less successful in demonstrating defendant's intention in issuing the bill of lading. Plaintiff asserts that the defendant's intent to increase its maximum liability to above $ 500 per package is evident from an undated declaration submitted by Weijburg and from a letter attached to that affidavit from John Oyen, vice president of Antwerp Shipping and Chartering Services N.V., which issued the bill of lading. The Oyen letter is addressed to Daval S.A., of which SATEM N.V. is a wholly owned subsidiary, and dated November 14, 1994. The pertinent part of the letter states, "Further to your telephonic request, we can advise you that at the time ANTWERP SHIPPING & CHARTERING SERVICES N.V. in accordance with instructions from their principals, Messrs. EUROLINES N.V., have mainly been using/issueing [sic] Bills of Lading in accordance with The Hague-Visby Rules." This letter does not constitute competent evidence regarding the bill of lading at issue here. First, Oyen states merely that he "mainly" issues bills of lading in accordance with the Hague Visby Rules -- he does not say whether the bill of lading at issue here falls within that category. Second, Oyen discusses bills of lading that were issued "at the time," but he does not identify what time period that was or whether the instant bill of lading was issued during that time period. Defendant Pal Marinos offers no evidence regarding its intent in issuing the bill of lading.
In the absence of evidence establishing the defendant's intent, neither the plaintiff nor the defendant has presented enough evidence to prevail on the motions for summary judgment. Plaintiff urges the court to apply the rule of contract construction under which bills of lading, as adhesion contracts, are construed against the carrier. See Mitsui & Co., Ltd. v. American Export Lines, Inc., 636 F.2d 807, 822 (2d Cir. 1981). Defendant, which has presented no extrinsic evidence regarding the intent of the parties in acceding to the bill of lading, does not aver that it might present further evidence were discovery allowed to proceed on this issue. See Schiess-Froriep Corp. v. S.S. Finnsailor, 574 F.2d 123, 127-28 (2d Cir. 1978) (remanding case to allow parties opportunity to present extrinsic evidence before court gives final construction to contract). Nor does it seem likely that defendant would succeed in obtaining evidence regarding its intent in issuing this poorly worded form. See Daval Steel Prods., 683 F. Supp. at 446 (noting that "seeking the intent of the parties with respect to a barely legible standard form replete with typographical errors was a 'fictional pursuit'"). Therefore, the court will apply the rule of construction. See, e.g., Daval Steel Prods., 683 F. Supp. at 447 (applying rule of construction to resolve ambiguity in bill of lading on plaintiff's motion to strike and defendants' cross-motion for summary judgment).
Assuming that the plaintiff would want to know the terms of the bill of lading before acceding to it, the court finds that the phrase "as the case may be" in clause 9 means that the clause refers to the version of the Hague Rules or Hague Visby Rules adopted by the country from which the shipment departed. On the assumption that the owner of the cargoes would prefer to have all the protections offered by whatever rules apply, rather than merely allowing the carrier to have the benefit of those rules, clause 9(a) will be applied if possible, and only where the rules adopted by the state from which the shipment departed have not been adopted in the situs state will clause 9(b) be applied.
Here, the shipment departed from Belgium, which has adopted the Hague Visby Rules and the 1979 amendments thereto. 6 Benedict on Admiralty, at 1-29 & 1-32.3 (7th ed. 1993). The United States has not adopted the Hague Visby Rules, so clause 9(a) does not apply. Therefore, the rights, liberties, limitations and defenses available to the carrier under the Hague Visby Rules and their amendments are incorporated into the contract, thus raising the carrier's maximum liability to above $ 500 per package.
Plaintiff's cross-motion for an order pursuant to Rule 56(a), F.R. Civ. P., granting partial summary judgment striking Pal Marinos' second affirmative defense insofar as it alleges a $ 500 per package limitation of liability, is granted. Plaintiff's cross-motion for an order pursuant to Rule 12(f), F.R. Civ. P., is denied. Defendant Pal Marinos' cross-motion for an order pursuant to Rule 56, F.R. Civ. P., granting partial summary judgment limiting the liability of Pal Marinos to $ 500 per package, is denied.
IT IS SO ORDERED.
Dated: New York, New York
April 27, 1995
Robert L. Carter