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J.C.B. SALES v. M.V. SEIJIN

April 16, 1996

J.C.B. SALES LTD., Plaintiff, and NEW HOLLAND NORTH AMERICA, INC. and FORD NEW HOLLAND, Plaintiffs, and CATERPILLAR INC., Plaintiff, and LAND ROVER EXPORTS LTD., Plaintiffs, against M.V. SEIJIN, her engines, boilers, etc., in rem, SAN CLEMENTE SHIPPING S.A., WALLENIUS LINES (WALLENIUS LINES NORTH AMERICA INC.), in personam, Defendants.


The opinion of the court was delivered by: POLLACK

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 Milton Pollack, Senior District Judge

 Four suits *fn1" have been consolidated for non-jury trial, presenting admiralty and maritime claims for monetary damages to cargo carried under contract by the M/V Seijin (the "vessel"), to Baltimore, Maryland in March, 1995. The claims name as defendants, the vessel, its charterer Wallenius Lines North America Inc., a Swedish corporation, and the owner of the vessel. San Clemente Shipping, S.A. (of Panama). Wallenius had leased the contract of affreightment with N.Y.K. Lines to carry the cargo here involved.

 On February 28, 1995, plaintiff Caterpillar loaded tractors on the vessel in Antwerp destined to Southampton and received a Datafreight Receipt from Wallenius. On March 4, 1995, Caterpillar received another Datafreight Receipt at Southampton for its cargo of tractors for shipment to Baltimore, along with cargo to be carried on the vessel for plaintiff J.C.B. Sales Ltd., for which the latter received a similar Datafreight Receipt from Wallenius. An additional amount of cargo destined in part for Halifax and in part for Baltimore was loaded on the vessel at Southampton for plaintiff Landrover. The Southampton Datafreight Receipts covered the shipment of 81 items of construction equipment and 24 tractors. After the vessel's stopover in Halifax, the balance of the cargo was delivered at Baltimore on March 18, 1995, in seriously damaged condition which impaired its value.

 The cargo was carried pursuant to contracts prepared and executed by Wallenius Lines, and expressed in non-negotiable Datafreight Receipts, which expressly assert that they are not documents of title, but are to be deemed to be contracts for carriage from the foreign port to the U.S.A.

 The face of the receipts contains the following:

 
The carrier's standard conditions of carriage incorporate the Hague Rules contained in the Brussels Convention dated 25 August, 1924 and any compulsorily applicable national enactment of these rules.

 On the reverse side of the Receipts an excerpt from the carrier's conditions of carriage is set forth giving of the scope of the carrier's liability, reading as follows:

 
2. Responsibility.
 
The Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated Brussels, the 25 August, 1924 as enacted in the country of shipment shall apply to this Contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments to which no such enactments are compulsory [sic] applicable, the terms of the said convention shall apply. *fn2"

 The Court finds that the so-called Hague-Visby Rules were intended by the parties to these suits to be incorporated into and applicable to the contracts of carriage. Indeed, the printed form of the Datafreight Receipt given to Caterpillar for its part of the carriage of goods from Antwerp expressly so stipulates. See fn 2, supra. The printed Receipts issued for parts of the same ultimate carriage at about the same time by the same Wallenius Lines give cogent evidence of an intent to imply the same terms of carriage for the entire foreign shipment of the goods involved herein.

 By specifically stating that the Datafreight Receipts are not documents of title and cannot therefore be Bills of Lading, COGSA is effectively removed from consideration herein. Matsushita Elec. Corp. v. S.S. Aegis Spirit, 414 F. Supp. 894, 901 (W.D. Wash. 1976). The only contracts of carriage to which COGSA applies are those ...


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