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August 17, 1998

COMMERCIAL UNION INS. CO., Plaintiff, against M.V. BREMEN EXPRESS, et al., Defendants.

The opinion of the court was delivered by: LEISURE


 LEISURE, District Judge,

 Plaintiff Commercial Union Insurance Company ("Commercial") *fn1" brings this admiralty action against defendants Current Carrier Incorporated ("Current Carrier"), Nippon Yusen Kaisha ("NYK Line"), and the M/V Bremen Express. The following motions are before the Court: (1) NYK Line's motion to dismiss the Complaint pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure; (2) NYK Line's motion in the alternative for summary judgment against Commercial pursuant to Fed. R. Civ. P. 56; and (3) Commercial's cross-motion for summary judgment against NYK Line and Current Carrier.


 Commercial is a British insurance company that underwrites international shipments of goods by sea. NYK Line is a Japanese shipping company that provides international carriage of goods by sea. Current Carrier is a New Jersey trucking company engaged in the common carriage of merchandise by truck for hire. The M.V. Bremen Express is the maritime vessel that NYK Line used to ship the goods at issue in this action.

 On March 3, 1996, Derby delivered a shipper-packed container *fn2" of bicycles to NYK Line at Huangpu, China. The container was supposed to have been shipped to L.L. Bean and Company in Portland, Maine. However, due to an error, the address of Raleigh's Eastern Distribution Center in Kenilworth, New Jersey, was listed as the "place of delivery". The intermodal *fn3" bill of lading governing this shipment (the "NYK B/L") provided for NYK Line to carry the container overland from Huangpu to Hong Kong; by sea from Hong Kong to New York; *fn4" and overland from New York to Kenilworth. See Exhibit C ("Exh. C") to Declaration of Paul M. Keane ("Keane Dec.").

 NYK Line provided its own shipping from Huangpu to Port Elizabeth and sub-contracted with Current Carrier to provide service from Port Elizabeth to Kenilworth. Current Carrier issued a separate bill of lading (the "Current B/L") to govern this portion of the journey. The Current Bœ is the short form of the Uniform Straight Bill of Lading (Domestic), a standard transport document governing domestic trucking transactions in the United States. *fn5" The parties agree that NYK Line carried the container to Port Elizabeth, as planned, and transferred custody to Current Carrier. They further agree that on April 11, 1996, Current Carrier transported the container from Port Elizabeth to Kenilworth and tendered delivery to Raleigh. What happened thereafter remains in dispute.

 Commercial alleges that Raleigh's Warehouse Manager, Tony Baird, broke the seal of the container and discovered that the bicycles inside were intended for L.L. Bean in Maine. Commercial further claims that Baird rejected delivery of the bicycles, resealed the container, and directed Current Carrier's driver, Rico Blot, to re-deliver the goods to Maine. Commercial asserts that Blot then carried the container to a section of lot approximately one hundred yards away and left the container with other inventory outside Current Carrier's building. *fn6"

 The parties agree that on April 11, 1996, Current Carrier's president, William Carracino, was out ill. Commercial claims that in Carracino's absence, the container was left unguarded in Current Carrier's lot. Commercial alleges that when Carracino returned to work on April 26, 1996, he found the container and logged it into Current Carrier's inventory. The following morning, Commercial claims, Carracino discovered that the container was missing.

 Current Carrier offers a very different version of what it believes occurred in connection with the shipment. Current Carrier alleges that, upon tender of delivery, Raleigh signed for the container and directed Blot to leave the container in the lot outside Raleigh's warehouse. Current Carrier's position is that no Raleigh employee informed Blot that the container had been delivered improperly nor that the cargo inside actually belonged to L.L. Bean. Current Carrier claims that Carracino was not informed of the mistake and told that he would have to re-ship the cargo to Maine until much later.

 In support of its version of the facts, Commercial submits an unsigned copy of Current Carrier's delivery invoice and an unsigned copy of the Current B/L. See Exhibits 4 and 5 to Reply Affidavit of Lawrence C. Browne ("Browne Aff."). In opposition, Current Carrier submits a signed version of Current Carrier's delivery invoice, which it contends is the true copy. See Exhibit C to Affidavit of John L. Meunkle. Current Carrier alleges that Commercial's copy is truncated to omit the signature of a Raleigh employee at the bottom of the page.

 The parties agree that on the morning of April 27, 1996, Carracino telephoned Richard Manz, Branch Manager of Raleigh's Eastern Distribution Center, to ask if the bicycles had been taken to Maine by another trucking company. Manz replied that he did not know of any re-shipment. Carracino then contacted the Kenilworth police and filed a report concerning the suspected theft. On May 1, 1996, the container was found empty in the Bronx by New York City police. Pursuant to an insurance agreement, Commercial compensated Raleigh for losses totaling $ 26,772.

 On November 1, 1996, Commercial filed a Complaint in this Court as Raleigh's subrogee. Jurisdiction is proper under the Court's admiralty and maritime jurisdiction. See 28 U.S.C. § 1333(1). *fn7" On November 20, 1996, NYK Line answered and filed a Cross-Claim against Current Carrier. Current Carrier answered both the Complaint and the Cross-Claim on March 18, 1997. On January 9, 1997, NYK Line filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(3), alleging that a forum selection clause contained in the NYK Bœ rendered this Court an improper venue for the instant action. In the alternative, NYK Line moved for summary judgment pursuant to Fed. R. Civ. P. 56. Commercial, in turn, filed a cross-motion for summary judgment against NYK Line and Current Carrier.

 In an Order dated May 15, 1997, the Court granted permission for Current Carrier's original counsel to withdraw. Prior to counsel's withdrawal, Current Carrier had not responded to the pending motions. In an Order dated June 26, 1997, the Court ordered Current Carrier to retain new counsel by July 18, 1997, and to submit opposition papers to the pending motions on or before August 1, 1997. Current Carrier retained counsel on July 18, 1997, but did not file its opposing papers until December 19, 1997, approximately four and one-half months after the date fixed by the Court.


 I. NYK Line's Motion to ...

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