On September 25, 1992 the vessel arrived at the Port of Buenos Aires. The container was discharged from the ship on September 26th and placed on the dock at Pier D. At that point in time, it is undisputed that both the shipper's seal as well as ELMA's seal were intact. In addition, a seal from Argentine Customs was placed on the container when it was discharged from the vessel. The container remained in the custody of ELMA at Pier D until September 29th. On that date, Alejandro Guerrico, a customshouse broker acting on behalf of plaintiff, went to Pier D in order to retrieve plaintiff's cargo.
At approximately 1 p.m., Guerrico submitted all the necessary documentation, including ELMA's authorization for release of the cargo, to Customs officials so that he would be able to take possession of the container on behalf of plaintiff. After determining that the papers were in order, Guerrico was sent by Customs to the location at Pier D where plaintiff's cargo was stored. Guerrico arrived at the location accompanied by two armed guards who were hired by plaintiff, the driver of the truck which was to transport the container, and a representative of ELMA. Guerrico examined the numbers of the seals which were affixed to the container and compared them to those listed on the bill of lading to ensure that the cargo was in fact plaintiff's. Several times during the course of the trial, Guerrico testified that at the time he received possession of the container, the seals were intact (R. 88-89). Guerrico further stated that although he checked the condition of the container, he observed no evidence of tampering (R. 89-90). After testifying that the doors of the container were not damaged, that there did not appear to be any holes in the container, nor was there evidence of "freshly welded spots," Guerrico summarized: he "didn't see anything that caught [Guerrico's] attention. I didn't see anything out of the ordinary" (R. 126).
The container was placed on the truck by the ELMA representative and at approximately 2:30
, the truck loaded with plaintiff's cargo went to Pier A. Guerrico drove separately to Pier A in his own car, while the truck driver and two guards rode to the destination in the truck. The purpose for moving the cargo to Pier A was that the container could be opened in the presence of a customs verification officer and the actual merchandise could be compared to the listing on the manifest.
According to Guerrico, he arrived at Pier A ahead of the truck between 3:15 and 3:30 p.m.. The truck bearing the cargo appeared soon after, and Guerrico proceeded to the Customs Office to see Lucas Diaz, the verifier for Argentine Customs. Guerrico stated that he had to wait between fifteen minutes and a half-hour before he saw Diaz. Guerrico testified at trial that Diaz took the documents and told Guerrico to help open the container. Although the container was supposed to be opened in the presence of a verifier, Diaz did not accompany Guerrico outside to the cargo and was not present when the container was opened.
According to Guerrico's trial testimony, notwithstanding the absence of a verifier, a laborer for the port cut the seals in the presence of Guerrico, the truck driver, the two guards, and a sailor from the Argentina Navy, which oversees the port. After the container was opened, Guerrico stated that three-fourths of the cartons of shoes were missing from the container
Guerrico returned to the building and told Diaz that there were many boxes missing from the container. Diaz, who was distressed that he already signed the "Despacho de Importacion
," told Guerrico "that in order for him not to have problems, we would have to redo the last page of the dispatch receipt" (R. 33). The next day Guerrico, at the behest of Diaz, obtained a blank page and the verification part of the dispatch was once again filled out, this time the information regarding the shortage was included. Although the opening of the container was never verified, another Customs official signed the new page. The new page did not record any shortage, despite the signature of the verifier.
After he had told Diaz of the shortage on September 29th, Guerrico called his office and claimed to have informed "the insurance inspector" of the loss at approximately 4:30 p.m. (R. 40). While he was waiting for the insurance agent to arrive, Guerrico informed Mr. Biondi and Captain Delatorre of ELMA about the missing cartons of shoes. Although Guerrico testified that he spoke with representatives of ELMA regarding the cargo shortage, there was no written correspondence with ELMA until October 6th (R. 97). Fifteen minutes after Guerrico's call to the insurance inspector, a representative from plaintiff's insurance underwriters arrived at the port and took pictures of the open container (Exh. 9). Diaz told Guerrico that because it was getting late, nothing more could be done that day and the container would have to be moved back to Pier D. Guerrico, the insurance inspector, and the guards arrived at Pier D approximately 5:45 p.m.. Guerrico was then told by the Pier chief that the container would necessarily remain overnight. An approximate count of the cartons in the container was taken, and it was determined that approximately 250 cartons remained. After the rough count, Mr. Fernandez, the Customs guard, put a new seal on the container and it was taken to Pier B. According to Guerrico, the container was under the control of the Customs guards and private security guards hired by plaintiff, while it remained at the port.
At trial, Guerrico testified that he met with representatives of ELMA on October 1 and discussed the shortage
The next day, October 2, at the request of the insurance company, the container was weighed by Argentine customs officials and the remaining cartons were counted in the presence of a notary public. The aggregate weight of the container and remaining cartons was 5690 kilograms (Exh. 12). The official count of the cartons revealed that there were 238 cartons of shoes inside of the container. Plaintiff took actual custody and control of the container on October 14th. Guerrico testified that from the morning of September 27 to October 14th he saw the container everyday and went to the port to sign a form requesting that it remain under customs guard. Essentially, a total of 498 cartons of shoes were missing from the original shipment.
Plaintiff did not seek a judicial survey in Argentina. However, on October 5, 1992 David Sinclair, a cargo surveyor, received notification from plaintiff hiring him to investigate the loss of the cargo. Sinclair was not asked to travel to Argentina or investigate any of the events that took place outside of the United States. Plaintiff never made the actual container or any of the seals available to Sinclair for examination. Nonetheless, after interviewing people at Kellaway warehouse, Red Hook terminal, ELMA, and examining numerous documents, Sinclair prepared a report dated February 8, 1993 (Exh. 22). In that report, Sinclair concluded that: "Based on our investigation we are of the opinion that container TRIU-424632-0 was loaded with its full contents at the time it was received at the Red Hook Terminal, Brooklyn, N.Y. and that the loss occurred some time after that" (Exh. 22, p. 6).
CONCLUSIONS OF LAW
This case involves claims by a shipper against an ocean carrier, as well as a stevedore, arising from an alleged breach of contract of carriage. The matter, therefore, falls within the court's admiralty jurisdiction. Allied Chemical v. Companhia de Navegacao, 775 F.2d 476, 481 (2d Cir. 1985). Resolution of this suit requires the court to address three distinct problems. First, it must be determined what law is controlling with respect to the issues in this case. Plaintiff maintains that COGSA is the applicable statute, ELMA argues that the law of Argentina should govern this case, and Universal states that any claim plaintiff has against it would be governed by the New York State's bailment law. After making an initial determination, the court will apply the applicable law to plaintiff's claims against ELMA and lastly, the court will address plaintiff's claim against Universal.
In the first instance, the court must decide the applicable law relative to plaintiff's claims. Each party in this case asserts that a different law applies to their respective contentions. On the one hand, plaintiff argues that COGSA governs both its claim against ELMA as well as Universal; ELMA maintains that the law of Argentina is applicable to its dispute with plaintiff; and Universal, on the other hand, claims that any cause of action asserted by plaintiff would fall under New York State's law on bailments rather than Federal Maritime Law. The court will initially address what law governs plaintiff's claim against ELMA.
The United States Carriage of Goods by Sea Act (COGSA) applies ex proprio vigore (by operation of law) to "every bill of lading . . . for carriage of goods by sea to or from ports of the United States." 46 U.S.C. § 1300. Neither plaintiff nor ELMA disputes that COGSA applies from the time the container was loaded aboard the vessel to the time when the container was unloaded. Indeed, section 1301(e) of COGSA states: "The term 'Carriage of Goods' covers the period of time when the goods are loaded on to the time when they are discharged from the ship." 46 U.S.C. § 1301(e); see also, Mendes Junior Intern Co. v. M/V Sokai Maru, 43 F.3d 153, 155 (5th Cir. 1995)(duty imposed under COGSA runs from the time goods are loaded onto the ship until the time that the cargo is released from port); Metropolitan Wholesale Supply Inc. v. M/V Royal Rainbow, 12 F.3d 58, 61 (5th Cir. 1994). Consequently, COGSA does not apply of its own force to cargo which has been disembarked from a vessel, as is the situation here.
Ordinarily, the Harter Act (46 U.S.C. § 190 et seq.) applies to the delivery of off-loaded cargo to the consignee unless the parties have extended COGSA through the bill of lading. It is well-settled that parties may incorporate COGSA in their carriage agreement when it does not apply of its own terms. Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 315 (2d Cir. 1983)("Parties may contractually extend COGSA's application beyond its normal parameters."); Toshiba International Corp. v. M/V Sea-Land Express, 841 F. Supp. 123, 125 (S.D.N.Y. 1994). Plaintiff argues that the bill of lading in this case provided for such an extension. The court agrees that COGSA applies.
"The purpose of a paramount clause [contained within a bill of lading] is to establish what law will apply to the entire contract." Z.K. Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1565 (S.D.N.Y. 1992). In ELMA's bill of lading the "Clause Paramount" in pertinent part provides:
Prior to loading on and after discharge from the ship, the goods, while in the carrier's custody, shall be at the sole risk of the shipper, consignee or owner of the goods with respect to any loss or damage howsoever caused and even though due to negligence, except if liability for any such loss or damage is to be determined in a port or place where such stipulation against liability is invalid or unenforceable, then the provisions of said Carriage of Goods by Sea Act of the United States (except subdivision 2(j) and (q) of Section 4 thereof and except as otherwise specifically provided for herein), shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the carrier and during such time the carrier shall not be liable in any capacity whatsoever for any loss or damage howsoever or wheresoever occurring other than in the management of the ship unless shown to be caused by the negligence of the carrier.
(Exh. 5). Plaintiff maintains that this clause extends the application of COGSA to the point at which the cargo was delivered to Guerrico. ELMA, on the other hand, argues that the law of Argentina is controlling from the moment the cargo was unloaded from the ship.
At the outset, it must be noted that the bill of lading never advances the application of the law of the port after the cargo is discharged. The Clause Paramount provides two options; first, a complete "hold harmless" exculpatory clause; or second, if that clause is invalid or unenforceable, then an application of COGSA. Thus, as a threshold matter, ELMA has not demonstrated any valid basis for the court to apply the law of Argentina. It is equally clear, that liability would be determined "in a port or place where such stipulation against liability is invalid or unenforceable" (Exh. 5, par. 2)
In this case, the law of Argentina (the port in which the delivery took place) would not permit such an exculpatory clause. Dr. Carlos Lesmi, an expert on Argentina law
called by ELMA, advised the court "that Argentine law permits E.L.M.A. to incorporate the United States Carriage of Goods By Sea Act, to incorporate that statute as applying to the bill of lading" (R. 151). Significantly, not only did Dr. Lesmi testify that Argentine law would permit the application of COGSA, he also stated "that an Argentine court hearing a case would enforce the application of a Carriage of Goods By Sea Act in view of its incorporation into the E.L.M.A. bill of lading" (R. 151). Thus, it is clear that under the law of Argentina, COGSA would be applied as a term of the bill of lading, up until the time of delivery of the goods to plaintiff or plaintiff's representative
For all of these reasons the court will apply the terms of COGSA with respect to plaintiff's claim against ELMA.
Universal maintains that any claim the plaintiff can assert against it rests under New York State bailment law. There is no dispute among the parties that Universal had no direct contractual relationship with plaintiff. Universal asserts that it "was only a bailee of the goods while in its possession for the purpose of performing the obligations of defendant ELMA." Universal's Post-Trial Brief, p. 5. Therefore, Universal concludes that plaintiff's only claim against it is "based upon common law bailment, under the laws of New York." Id. After reviewing all of the arguments, the court agrees with Universal.
At the outset, it is noteworthy that plaintiff fails to advance any argument relating to the legal theory under which it seeks to hold Universal liable. Despite Universal's strong argument as to why New York bailment law should apply, plaintiff has offered no objection or counter view. Accordingly, the court assumes that plaintiff has acquiesced to Universal's position. See, Tehran-Berkeley Civil & Envtl. Engineers v. Tippetts et al., 888 F.2d 239, 242 (2d Cir. 1989); Tokio Marine Management Inc. v. M/V Zim Tokyo, 1993 U.S. Dist. LEXIS 11487, 1993 WL 322869, n. 9 (S.D.N.Y. 1993). Nonetheless, the court has independently determined that New York law governing bailments should apply. It is well settled that "an action against a terminal for negligent loss of cargo is not within federal maritime jurisdiction, but is a state claim governed by state law." Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 315 (2d Cir. 1983); Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 808-09 (2d Cir. 1971); Tokio Marine, 1993 U.S. Dist. LEXIS 11487, 1993 WL 322869, *5; Minemet, Inc. v. M.V. Mormacdraco, 536 F. Supp. 769, 771 (S.D.N.Y.), aff'd, 714 F.2d 115 (2d Cir. 1982). Since Universal acted as ELMA's stevedore and was a bailee of the goods while in its possession at the New York terminal, the court finds that plaintiff's claim is based upon New York State principles of bailment.
Despite the non-federal nature of plaintiff's cause of action against Universal, since the state claim is interwoven with plaintiff's federal action against ELMA, the court maintains supplemental jurisdiction over plaintiff's allegations against Universal. 28 U.S.C. 1367(a)
; United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)(federal courts may exercise pendant jurisdiction if the state and federal claims "derive from a common nucleus of operative fact"). In deciding plaintiff's action against Universal, the court will apply New York substantive law in the same manner as would a New York State court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).
Having established the applicable law governing each claim, the court now turns to plaintiff's allegations against ELMA.
Plaintiff insists that ELMA is liable for the loss of cargo under COGSA. In order for a party to enforce its rights under COGSA, "litigants must engage in the ping-pong game of burden shifting mandated by sections 1303 and 1304 of the Act." Tubacex Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The first burden falls on the plaintiff shipper, who must establish a prima facie case of loss. This burden is satisfied if the shipper can demonstrate delivery of the cargo in good condition to the carrier and either the arrival of less cargo than was loaded or delivery of the goods in damaged condition. See 46 U.S.C. §§ 1303(3) and 1304; see also, Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 538 (2d Cir. 1994); New York Marine & Gen. v. S/S Ming Prosperity, 920 F. Supp. 416, 422 (S.D.N.Y. 1996); Ferrostaal Corp. v. M.V. Singa Wilguard, 838 F. Supp. 757, 767 (S.D.N.Y. 1993). If both prongs of the prima facie case have been established, the burden then shifts to the carrier to show that any loss falls within one of COGSA's exceptions. Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30, 32 (2d Cir. 1982); Judy-Philippine Inc. v. S/S Verazano Bridge, 781 F. Supp. 253, 258 (S.D.N.Y. 1991). To establish a prima facie case, the shipper must adduce evidence that, standing alone, establishes both prongs of the claim. The court finds that plaintiff has failed to establish a prima facie case.
This circuit has made clear that the bill of lading, alone, is not sufficient proof of the number of cartons within a sealed container "because that aspect of the cargo was not ascertainable from any external examination of the containers." Bally, Inc. v. M.V. Zim America, 22 F.3d 65, 69 (2d Cir. 1994). In this case, however, plaintiff has submitted additional evidence which the court finds sufficiently sustains plaintiff's burden. First, there was the testimony of Stanford, whom the court found entirely credible. Stanford stated that he had observed the placement of 736 cartons of shoes in the container (R. 264-65). In addition, the deposition testimony of Edward St. John, Frederick Carter, and Philip A. Puopolo, all corroborate the amount of cartons claimed by plaintiff (Exhs. 70, 71; Universal Exh. CC). Thus, plaintiff has satisfactorily established the delivery of the goods in good condition to ELMA.
Demonstrating damaged cargo at outturn is more problematic. In order to establish the second prong, plaintiff must demonstrate that any loss or damage occurred before the cargo was returned to its possession. Here, plaintiff has failed to do so. Accepting Guerrico's recounting of the events to be entirely accurate, it is clear that he received possession of the container between 2:00 and 2:30 p.m., on September 29th. Based on Guerrico's testimony, the earliest he opened the container was approximately 4:00 p.m., that same day. Guerrico admitted that he did not personally accompany the container during that entire time period. Initially, he rode to Pier A from Pier D separate from the container. Then later, at Pier D, Guerrico went inside to speak to Diaz, the verifier, where by his own calculation he had to wait between 15 to 30 minutes before he was able to speak to Diaz. Accordingly, the only witness presented by plaintiff who offered first-hand testimony describing the opening of the container, by his own admission, was away from the container for at least 45 minutes. Although Guerrico named several people, including the truck driver and armed guards who were with the container from the time of receipt until the time the loss was discovered, plaintiff did not call any of these individuals to the stand, nor was any deposition testimony offered into evidence
Accordingly, the court must base its decision solely on Guerrico's testimony, which is the only evidence presented by plaintiff regarding the occurances which took place in Argentina.
Much has been made regarding the credibility of Guerrico. While there is no doubt that Guerrico was not completely forthcoming at the deposition, the court believes that at trial Guerrico attempted to relay the facts as accurately as his memory permitted. Guerrico fully explained why he had not been truthful regarding the presence of Diaz, and after observing his manner and listening to his testimony, the court believes that Guerrico, credibly, was testifying to the best of his recollection. Nonetheless, Guerrico's testimony constituted the only evidence of the discovery of the loss. Even assuming the accuracy of Guerrico's testimony, many of the important aspects of what happened to the container once it was in Guerrico's custody are nebulous. Reviewing the evidence, the court cannot ignore the fact that there is a significant period of unaccounted-for time before the loss was discovered, but while the container was in the possession of plaintiff. In order for plaintiff to successfully establish a prima facie case that the goods were returned damaged or missing, the evidence must rule out the possibility that the goods were not pilfered while in plaintiff's custody. Bally, 22 F.3d at 69. Here, because there exists a period of time during which Guerrico is unable to account for the welfare of the container, plaintiff did not eliminate the possibility that the goods were not lost or stolen while in its custody. Since the goods may have been tampered with during the time when Guerrico was not present, and plaintiff has failed to present evidence from a person with any knowledge of the safety of the container during the time when Guerrico was not present, the court is constrained to find that plaintiff has failed to establish its prima facie case.
Nor does the testimony of plaintiff's cargo surveyor, David Sinclair, help plaintiff establish its case. Indeed, nothing in his report or testimony can shed any light on what actually happened to the container from the time that plaintiff received the cargo to the time when the loss was discovered. Sinclair, himself, stated that he was not asked to go to Argentina to investigate what had happened in Buenos Aires and that he relied upon second hand information (some of which was inaccurate) as to all aspects of the events in Argentina. In his report Sinclair concluded: "Based on our investigation, we are of the opinion that container TRIU424632-0 was loaded with full contents at the time it was received at the Red Hook Terminal, Brooklyn, New York and that the loss occurred sometime after that" (Exh. 22). This conclusion fails to rule out the possibility that the loss occurred after Guerrico received the container. Similarly, at trial Sinclair stated:
Basically all I can say, sir, is that the weight that was in the container at the time it was received at Red Hook showed that the full contents were in it at the time. When the container was received by Mr. Guerrico in Argentina and opened, it was found to have a shortage. And so basically all I can say is that it happened sometime between those two points. I can't tell you where it happened, I just don't know.
(R. 333-34). Moreover, Sinclair based all of his conclusions as to what happened in Argentina, on the testimony of Guerrico. Sinclair did not corroborate any of the information he received. Accordingly, since Sinclair cannot fill any of the gaps in time during which the container was in possession of plaintiff, and considering that Guerrico was not with the container for the entire period, the court finds that Sinclair's report fails to establish prima facie evidence that the loss occurred before outturn of the cargo.
Finally, the evidence supports ELMA's claim that the loss did not occur while the container within its custody and control. Although the Second Circuit has stated that "delivery by a carrier of a container with an intact seal does not conclusively prove that the loss did not occur while the container was in the carrier's possession," that court nonetheless found that when "there was no evidence that the container had been tampered with, and [plaintiff] does not suggest that the high-security seal had been breached," that "there was insufficient evidence for the district court to conclude that the cartons were missing from the sealed container when it was delivered by [defendant] at the Maher Terminal." Bally, 22 F.3d at 70; see also, Roco Carriers, Ltd. v. M/V Nurnberg Express, 1990 WL 270422 (S.D.N.Y. 1999), aff'd, 899 F.2d 1292 (2d Cir. 1990)(fact that the seals were intact on the container demonstrates carrier was free from negligence); Cf. Leather's Best, 760 F. Supp at 306-307 (holding carrier liable even though it delivered sealed container where seal was frail and rusted and container was damaged); Westway Coffee Corp. v. M.V. Netuno, 528 F. Supp. 113, 115 (District Court concluding that unnumbered fragile seals easily could have been removed and duplicated). Here, there were three metal, numbered, and intact seals on the container when it was delivered to plaintiff. The only witness offered as to the receipt of the container, testified that there was no evidence to suggest that the seals had been tampered with.
While recognizing Sinclair's testimony regarding the ability of thieves to steal cargo from a container while the seals were intact, the court finds it of little weight as applied to the particulars of this case. Undoubtedly there are several ways goods can be stolen from a sealed container, without disturbing the seals. However, mere theoretical possibilities may not be substituted for evidence. In this case, Sinclair specifically admitted that he had never inspected the container and that when he asked to inspect the seals he "was told they had been discarded" (R. 349, 352). Thus, while the court has no doubt as to Sinclair's expertise and accuracy regarding the opening of a container without disturbing the seals, the fact is that Sinclair never examined the particular container involved in this case, and therefore, could not conclude that any of those practices were used in this case.
Indeed, Guerrico, who testified that he had inspected the container "to make sure that it was in sound condition," specifically stated that there were no holes in the container, the doors functioned, they were not hanging, there were no freshly-welded spots inside the container, and that he "didn't see anything out of the ordinary" (R. 126). Therefore, the only evidence presented to the court was that the seals were at all times intact and that there was no indication of anyone tampering with the container. Significantly too, while onboard ELMA's vessel the container was stored approximately forty feet above the ground in the hold. In such position, it would be very unlikely that anyone would have easy access to the container, much less be able to pilfer cargo. Such evidence strongly militates against plaintiff's claim that the goods were lost while in ELMA's custody. Bally F.2d at 70.
Consequently, taking together all of the problems with plaintiff's proof, the only conclusion that the court can reach is that there was insufficient evidence to support a finding that the 498 cartons of sport shoes were missing at outturn. Therefore, plaintiff has failed to established its prima facie case as required by COGSA and the claim against defendant ELMA must be dismissed. See, Bally, 22 F.3d at 71 (failure of plaintiff to prove the second prong of its prima facie case under COGSA required dismissal of the claim).
Plaintiff's post-trial briefs do not contain a theory of liability against Universal and concentrate solely on ELMA. However, any conceivable claim brought by plaintiff against Universal would fall under New York State bailment law. Under New York law, a bailor is entitled to a rebuttable inference of negligence against a bailee, provided that the bailor can establish "delivery of the stored property to the warehouse and its [the bailee's] failure to return that property upon proper demand." I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 N.Y.2d 657, 660, 431 N.Y.S.2d 372, 409 N.E.2d 849 (1980); Art Masters Associates Ltd. v. UPS, 153 A.D.2d 41, 549 N.Y.S.2d 495, 499 (App. Div. 2nd Dept. 1989); RGA Industries v. Jomas Express, 129 Misc. 2d 1066, 499 N.Y.S.2d 28, 28-29 (App. Term 1st Dept. 1985); Leather's Best Inc. v. S.S. Mormaclynx, 451 F.2d 800, 813 (2d Cir. 1971)(applying New York law). The inference of negligence may be rebutted if the bailee can explain what happened to the goods, at which point the burden falls back upon the bailor to establish the bailee's negligence. I.C.C. Metals, Inc., 50 N.Y.2d at 660; Procter & Gamble Distributing Company v. Lawrence American Field Warehousing Corp., 16 N.Y.2d 344, 266 N.Y.S.2d 785, 213 N.E.2d 873 (1965). Here, plaintiff has failed to establish that it was Universal who returned the container with goods missing.
There is no question, based upon the weighing of the container when it arrived at Universal's terminal, that Universal received the goods in good condition. This alone does not satisfy plaintiff's burden. Under the law of New York, plaintiff must demonstrate that it was Universal who failed to return the goods in the same condition as they were received. Plaintiff's surveyor, Sinclair did not establish when the goods were taken and neither plaintiff nor ELMA advanced any evidence of tampering occurring at Universal's Red Hook facility. Importantly, ELMA retrieved the container from Universal without incident.
Hence, for all of the reasons which have been previously discussed, plaintiff failed to eliminate the possibility that the cargo was stolen while it was in possession of the container in Argentina. Although the specter of possibility remains that the shoes were stolen while in Universal's custody, there is not one shred of evidence which supports such a theory. Indeed, mere "surmise and conjecture" is insufficient to fulfill plaintiff's burden. Minemet Inc. v. M.V. Mormacdraco, 536 F. Supp. at 775 (applying New York law). In short, while plaintiff has failed to set forth sufficient evidence to establish a prima facie case against ELMA under COGSA, it has not offered any evidence which would indicate Universal was responsible for with the loss. Therefore, plaintiff's claim against Universal must fail.
Finally, even if the court were to accept plaintiff's assertion that the goods were lost sometime after Universal received the container and before plaintiff regained possession of it in Argentina, there would still be no liability against Universal. In absence of proof of where the loss took place, there is a presumption that it occurred with the last carrier. Madow v. S.S. Liberty Exporter, 569 F.2d 1183, 1185 (2d Cir. 1978). As an intermediary bailor of the container, Universal cannot be held liable for any cargo loss when there is no evidence establishing when and where the loss took place. Therefore, plaintiff's claim against Universal must be dismissed.
Since the court's findings reject plaintiff's claims against both ELMA and Universal, there is no occasion to address the issue of damages.
With regard to Plaintiff's action against defendants ELMA and Universal, the court finds that plaintiff failed to establish the required prima facie case against ELMA as required by COGSA or meet its burden of proof against Universal as provided for under New York law. Accordingly, plaintiff's claims against ELMA and Universal are hereby dismissed.
Each side shall bear its own cost.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED
Dated: July 23, 1996
New York, New York
Bernard Newman, U.S.D.J., by designation