recover $ 1,186,467.87 from defendants. (Pl.'s 3(g) P 12; Defs.' counter-3(g) P 12.)
Defendants admit that, subject to any package limitation or other defense, they are liable for the damage to the offset printing press. (Pl.'s 3(g) P 15; Defs.' counter-3(g) P 15.) Accordingly, the only issue is whether Wilhelmsen and/or Maher is entitled to the benefit of the $ 500 package limitation in the bill of lading.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To defeat a motion for summary judgment brought by the party that does not bear the burden of proof, the party with the burden of proof must make a showing sufficient to establish the existence of every element essential to that party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In deciding whether a genuine issue of material fact exists, the court must "examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993) (citation omitted).
1. The Fair Opportunity Doctrine
Plaintiff argues that the bill of lading in this case does not give clear and unambiguous notice to the shipper of a limitation of liability. Accordingly, plaintiff argues, no limitation of liability is available. This argument is based on the judicially-created "fair opportunity doctrine." The doctrine, as enunciated by the Supreme Court in New York, New Haven & Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 135, 97 L. Ed. 1500, 73 S. Ct. 986 (1953), provides that "only by granting its customers a fair opportunity to choose between higher and lower liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery to an amount less than the actual loss sustained." If the carrier does not provide such a fair opportunity, it is not entitled to the benefit of any limitation of liability that might otherwise apply. General Electric Co. v. MV Nedlloyd, 817 F.2d 1022, 1028 (2d Cir. 1987), cert. denied, 484 U.S. 1011, 98 L. Ed. 2d 661, 108 S. Ct. 710 (1988).
A carrier seeking to enforce a package limitation must first make a prima facie showing that notice of the limitation was given to the shipper, and that thus the shipper was given an opportunity to opt out of the limitation by declaring a higher value. See General Electric, 817 F.2d at 1029; Couthino, Caro and Co., Inc. v. M/V Sava, 849 F.2d 166, 171 (5th Cir. 1988). This prima facie showing can be made by pointing to the language contained in the bill of lading. General Electric, 817 F.2d at 1029. If the carrier succeeds in establishing its prima facie case, the burden shifts to the shipper to demonstrate that a fair opportunity did not exist. Id.
The language of the bill of lading at issue in this case expressly provides that liability is limited to $ 500 per package. Clause 11 of the bill of lading, entitled "Package Limitation," states:
Neither the Carrier, its servants or subcontractors nor the vessel shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding U.S. $ 500 per package, . . . unless the nature and value of such goods have been declared by the shipper before shipment and inserted in this bill of lading (Box 16) AND the shipper has paid the additional charges on such declared value.