R.G.N. contends that Sea-Land's off-loading of the containers at Piraeus constituted a "geographic deviation from the agreed upon route," Plaintiff's brief at 11, which renders Sea-Land liable for all resulting damages. In addition, R.G.N. claims that Sea-Land's exercise of its lien at Piraeus was unreasonable in the circumstances, an alternative basis for liability. As authority for these propositions, R.G.N. cites Dow Chemical Pacific, Ltd. v. Rascator Maritime S.A., 782 F.2d 329 (2d Cir. 1986).
Sea-Land committed no deviation in this case, either geographical or by operation of law. As to the first point, Piraeus lies on a direct line from United States ports to Ukrainian ports on the Black Sea and the Sea of Azov. Moreover, the deposition testimony makes it plain that both Karapetyan of R.G.N. and Anita San Diego of Yamato, R.G.N.'s freight forwarder, were aware that Sea-Land services Ukrainian ports only by feeder service vessels from Piraeus to the Ukraine. San Diego deposition, Tr. 87; Karapeytan deposition, Tr. 38. In short, Sea-Land performed the voyages which the parties contemplated.
Dow Chemical bears no meaningful resemblance to the case at bar. The contemplated voyage in Dow Chemical was from United States and Canadian ports to Bombay, India. The Second Circuit, affirming the district court, held that the shipowner committed an unreasonable deviation when it directed the vessel to discharge the plaintiffs' cargoes at Cadiz, Spain, "a port at which it had not been scheduled to call," 782 F.2d at 332, for the purpose of discharging plaintiffs' cargoes at Cadiz rather than carrying them to Bombay. The shipowner's intention was to pick up several new cargoes at Cadiz, which it would then carry to Dubai, U.A.E., and to Kuwait." Id.
The shipowner contended during a bench trial that the underlying purpose of the deviation was the assertion of a lawful lien upon the cargoes. The district court rejected that contention, finding instead that the deviation was for the shipowner's "larcenous purpose," 782 F.2d at 338, a finding which the court of appeals affirmed. The Second Circuit concluded that since the Carriage of Goods by Sea Act ("COGSA"), the governing statute, provides that a deviation for the purpose of unloading cargo is prima facie unreasonable, "and since a contemptuous or larcenous purpose is ipso facto unreasonable," the vessel's deviation to Cadiz "violated COGSA and breached the carriage contracts." Id.1
Sea-Land's conduct obviously bears no resemblance to that of the villainous shipowner in Dow Chemical. While in that case the Second Circuit left open the question of whether "an intended assertion of a lien on cargoes were a purpose that might ordinarily make a deviation 'reasonable' within the meaning of COGSA," 782 F.2d at 338, that question does not arise in the case at bar, since as noted an off-loading of R.G.N.'s containers at Piraeus was contemplated by the parties to the contract from the beginning.
Summary judgment will enter in favor of defendant Sea-Land.
B. The motion of Yamato for Summary Judgment.
R.G.N.'s claim against Yamato presents genuine issues as to material facts which preclude summary judgment.
First, there is a dispute between these parties as to whether R.G.N. specifically advised Yamato that delivery of the containers at the Ukrainian port on or before a specified date was essential, whether Yamato gave R.G.N. specific assurances on that point, and whether R.G.N. reasonably relied upon those assurances. These disputes are clearly material to Yamato's liability.
Second, the parties dispute whether Yamato or R.G.N. were to prepay the ocean freight to Sea-Land prior or at the time of loading the containers on to the Sea-Land vessels.
The latter factual dispute is material because if, as R.G.N. asserts, Yamato agreed to pay the ocean freights in the first instance and bill R.G.N. for its services after delivery of the shipments in the Ukraine, Yamato breached the contract by failing to pay Sea-Land the freights until March 28, 1994. Yamato, ostensibly an experienced freight forwarder, should have foreseen that its failure to prepay the freights to Sea-Land could result in the latter's exercising its right under the bills of lading to lien R.G.N.'s cargo.
These contested and material issues also go to Yamato's liability, and are sufficient to preclude summary judgment for that defendant. In this opinion, the Court intimates no view with respect to the recoverable amount of R.G.N.'s damages in the event of a finding of lability on the part of Yamato.
For the foregoing reasons, the motion of defendant Sea-Land Service, Inc. for summary judgment is granted. There being no just reason for delay, the Clerk of the Court is directed to enter judgment in favor of defendant Sea-Land Service, Inc. and against plaintiff R.G.N. Capital Corp., dismissing the complaint with prejudice. See Rule 54(b), Fed.R.Civ.P.
The motion of defendant Yamato Transport USA, Inc. for summary judgment is denied.
Counsel for plaintiff and defendant Yamato are directed to attend a status conference at 2:00 p.m. on January 24, 1997, in Room 17C, 500 Pearl Street.
It is SO ORDERED.
DATED: New York, New York
January 8, 1997
CHARLES S. HAIGHT, JR.
UNITED STATES SENIOR DISTRICT JUDGE