The opinion of the court was delivered by: HAIGHT
HAIGHT, Senior District Judge:
In this admiralty action arising out of the delayed delivery of goods carried by ocean transportation, the defendants shipowner and freight forwarder move for summary judgment pursuant to Rule 56, Fed.R.Civ.P.
The affidavits, exhibits and depositions submitted on these motions reveal the following facts.
Plaintiff R.G.N. Capital Corp. ("R.G.N."), suing as agent for GRM Capital Corp., alleges that at some time prior to January 27, 1994, R.G.N. contracted with defendant Yamato Transport USA, Inc. ("Yamato"), a freight forwarder, to arrange for the ocean transportation of two containers filled with furniture materials. One container was to be loaded at the Port of New York and the second at the Port Tupelo, Mississippi. The containers were to be discharged at the port of Mariupol, Ukraine, with inland transportation to their ultimate destination, Donesk, Ukraine. R.G.N. says that it was under contract with a Ukrainian entity, Garo, Ltd. ("Garo"), to deliver these materials in the Ukraine not later than March 11, 1994. Affidavit of Boris Karapetyan at P 5.
R.G.N. contends that at the time it retained Yamato's services and thereafter, R.G.N. impressed upon Yamato that the shipments had to reach their ultimate destination by March 11, 1994; that time was of the essence; and that Yamato gave R.G.N. assurances upon which R.G.N. relied. The witnesses for Yamato deny that such advice was given to them or that Yamato issued such reassurances.
Yamato recommended to R.G.N. that the two containers be carried on board vessels operated by defendant Sea-Land Service, Inc. ("Sea-Land"). R.G.N. agreed. Whatever the facts may be with respect to R.G.N.'s notice to Yamato of the time of delivery being of the essence, there is neither evidence nor claim that such notice was given to Sea-Land.
The complaint alleges that one container was loaded on board the vessel Sea-Land Achiever at the Port of Tupelo on or about January 27, 1994. The complaint further alleges that the second container was loaded on board the vessel Amerigo Vespucci at the port of New York on February 1, 1994.
Sea-Land issued ocean bills of lading upon the loading of the R.G.N. containers on board its vessels. The bill of lading covering the shipment from the U.S. Gulf on the Achiever is dated January 27, 1994. The bill of lading specifies New Orleans, Louisiana as the loading port, rather than Tupelo, Mississippi. The record does not reflect why New Orleans, rather than Tupelo, is identified as the port of loading, but the discrepancy does not appear to be material.
Sea-Land's bill of lading for the container shipped on board the Amerigo Vespucci is dated February 1, 1994. The loading port is designated as Elizabeth, New Jersey, which is in the greater port of New York.
Both bills of lading specify the port of Mariupol, Ukraine as the destination. Both bills of lading recite that the ocean freight is to be prepaid. The Achiever bill of lading recited that the freight charge totalled $ 4,385.00. The freight charges recited on the Amerigo Vespucci bill of lading totalled $ 3,320.00.
Both bills of lading provided in P 13 that "full freight to the port of discharge named on the face of this document and all advance charges against the goods shall be considered completely earned on receipt of the goods by Carrier..." Those paragraphs also provided that "Carrier shall have a lien on the goods, which shall survive delivery, for all charges due..."
The Sea-Land vessels carried R.G.N.'s two containers from their respective ports of loading to the Port of Piraeus, Greece. Piraeus is the regular relay port utilized by Sea-Land in its feeder ...