The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge:
Plaintiff Levi Strauss & Co. ("Levi Strauss") commenced this action for nondelivery of goods that were shipped from overseas and stolen while in possession of the domestic motor carrier Quaker Transport, Inc. ("Quaker"), the trucking company that had been retained to transport the goods from Florida to Arkansas by Defendant Sea-Land Service, Inc. ("Sea-Land"), the overseas shipper of the goods. Plaintiff has filed a motion for summary judgment as to liability and damages against Defendant Sea-Land and it has filed a cross-motion for summary judgment against Third-Party Defendant, Quaker, seeking a determination that if it is found liable to Plaintiff, it is entitled to full indemnification from Quaker. Quaker argues that any amounts it may owe Sea-Land are limited by its tariffs to $100,000.
On September 29, 1999, Sea-Land issued a bill of lading to Levi Strauss for delivery of a container containing men's pants from Choloma, Honduras to Little Rock, Arkansas. Sea-Land transported the container to Port Everglades, Florida where the goods were discharged. On or about October 4, 1999, Quaker, which was retained by Sea-Land to transport the container from Florida to Arkansas, took possession of the goods. On the evening of October 4th, a man representing himself as a Quaker employee stole the container from Quaker's yard in Fort Lauderdale, Florida.
A. Levi Strauss' Motion for Summary Judgment
Sea-Land does not dispute that it is liable to Levi Strauss for its damages. It does, however, dispute the measure of damages. Levi Strauss claims damages for the wholesale or market value of the cargo, while Sea-Land argues that Levi Strauss is not entitled to the market value of the goods because it did not actually suffer a loss of profits.
The Carriage of Goods by Sea Act ("COGSA") governs the rights of Levi Strauss and Sea-Land in this action. With respect to damages, COGSA provides that "[i]n no event shall the carrier be liable for more than the amount of damage actually sustained." See 46 U.S.C. § 1304(5). The general measure of damages under COGSA is "`the difference between the fair market value of the goods at their destination in the condition in which they should have arrived and the fair market value of the goods in the condition in which they actually did arrive.'" Westport Petroleum, Inc. v. M/V Oshima Spirit, 111 F. Supp.2d 427, 437 (S.D.N.Y. 2000).
Lost profits are available under COGSA, but only if plaintiff actually lost profits. "The amount of profits, however, need not be definitely and absolutely proved. Only where the anticipated profits are so speculative as to be illusory should a court refuse to allow their recovery." Valerina Fashions, Inc. v. Hellman Int'l Forwarders, Inc., 897 F. Supp. 138, 140 (S.D.N.Y. 1995) (internal citations omitted).
To recover market value, Plaintiff "must show that it in fact suffered lost profits and that it could not mitigate damages by substitution of comparable goods from the market." Id. if this showing is not made, the market value measure of damages "may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable."*fn1 Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 64, 50 S.Ct. 180, 181 (1930).
Here, Levi Strauss was, in effect, the manufacturer of the stolen goods and, therefore, could not have purchased them in the market. Levi Strauss asserts that the goods were intended for the 1999 fall/holiday season and it would have taken 90 days to re-manufacture them so that "had LS & Co. specifically re-manufactured the goods the market would have been lost." However, Levi Strauss has not provided sufficient evidence to show that it actually lost sales because Defendant failed to deliver the goods in time for the fall/holiday season. Plaintiff has not shown that it was unable to fill customer's orders from existing inventory or that it could have made additional sales had the goods been delivered. Thus, awarding Levi Strauss damages for lost profits would result in a recovery greater than the loss suffered. Plaintiff's damages should be limited to the costs it incurred in the manufacture of the goods, which amount to $243,651.81.*fn2
Sea-Land also argues that Plaintiff has not adequately proved that the specified goods were actually loaded in the container that was stolen since it did not offer an affidavit from anyone who actually saw the goods being loaded into the container. While evidence from someone who saw the cargo loaded has been offered in many cases to establish the loss, see, e.g., Bally, Inc. v. M.V. Zim America, 22 F.3d 65, 69 (2d Cir. 1981), there is no reason to hold that this is the only way to prove the goods were actually loaded into a container. All Plaintiff is required to do is prove by a preponderance of the evidence that the goods were in the container. Here, Plaintiff has presented documentary evidence that as the goods were loaded into cartons, the bar codes were scanned and electronically became part of Levi Strauss' data base and that the invoices received from the manufacturer indicate which of the goods were contained in the stolen shipment. The fact that these procedures had been used by the parties for a substantial period of time, with the invoices accurately reflecting the goods shipped, provides more than sufficient evidence of reliability to justify relying on the invoices as evidence that the goods were in fact shipped in the stolen container. See New York Marine & General Ins. Co. v. S/S Ming Prosperity, 920 F. Supp. 416 (S.D.N.Y. 1996) (Evidence established that 800 cartons of footwear were destroyed during railroad carriage where consignee produced a commercial invoice prepared by the shipper consistent with the bill of lading.) As Sea-Land notes, there is no reason to believe that the manufacturer would have risked its relationship with Levi Strauss by stuffing the container with anything other than the goods that had been ordered. Since there is no evidence that the goods at issue were not in the container, the proof that Plaintiff has offered is more than sufficient to support the award of summary judgment. Cf. Dyer v. MacDougall, 201 F.2d 265, 266 (2d Cir. 1953).
B. Sea-Land's Cross-motion for Summary Judgment Against Quaker
Quaker claims that regardless of the actual damages for which Sea-Land may be liable to Levi Strauss, its tariff limits its liability to Sea-Land to $100,000. Quaker's tariff, which it had filed in 1995 with the now defunct Interstate Commerce Commission, provides that "[e]xcept as otherwise provided, when no value is declared on a bill of lading, carrier's liability for loss or damage to all or any part of shipment will be limited to a maximum of $100,000 per shipment."
Even though Quaker was not a party to Sea-Land's bill of lading, Quaker argues that it is a through bill of lading and, therefore, Sea-Land's bill of lading incorporates Quaker's tariffs. Specifically, Quaker points ...