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February 26, 2004.


The opinion of the court was delivered by: PETER LEISURE, District Judge Page 2


Plaintiff, the subrogee of the shipper in this admiralty action, brings this suit against defendants, the common carriers that owned and operated the m/v MSC DYMPHNA, for breach of contract and negligence arising out of defendants' failure to deliver "2880 cartons" of pharmaceuticals "packed on 40 pallets" in one shipping container. Defendants now move for an order granting partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure that limits their liability to $500 per package. More importantly, defendants argue that the "packages" in this case are the 40 pallets, and thus that their total liability cannot exceed $20,000. Plaintiff opposes the motion, and cross-moves for an order granting summary judgment that defines the "packages" in this case as the 2880 cartons. Plaintiff argues that defendants' liability therefore should be limited to $1,440,000. In short, the parties now ask the Court to determine what comprises a "package" in the shipping agreement between them. For the reasons set forth below, defendants' motion is denied in part and granted in part and plaintiffs motion is denied.


 I. Factual Background

  The facts of this case are straightforward and largely not in dispute. Plaintiff is the subrogee of Warner Lambert Company. On or about October 28, 2000, Geologistics, acting as an agent of Warner Lambert, delivered container GCEU 665 205-0 to F.H. Bertling GmbH & Co. ("Bertling"), acting as an agent of defendants, at the port of Antwerp, Belgium. (Royal's Response to MSC's Local Rule 56.1 Statement, ¶ 3 ("Plaintiff's 56.1 Resp."); Defendants' Response to Plaintiff's Local Rule 56.1 Statement, ¶ 1-2 ("Defendants' 56.1 Resp.")) Warner Lambert, through its agent Geologistics, said the container contained "2880 cartons packed on 40 Page 3 pallets pharmaceutical, non restricted articles." (Plaintiff's 56.1 Resp. ¶ 3; MSC Bill of Lading, attached as' Exhibit A to Statement of Nanik Kirpalani ("Kirpalani Statement")) Bertling issued a bill of lading with the phrases, "2880 CARTONS PACKED ON 40 PALLETS PHARMACEUTICAL, NON RESTRICTED ARTICLES," and "SHIPPERS LOAD/STOW/COUNT AND SEAL FCL/FCL FREIGHT PREPAID HOUSE/HOUSE," typed in the column titled "Description of Goods." (Kirpalani Statement, Ex. A.) The container was loaded on board the m/v MSC DYMPHNA for carriage to the port of Charleston, South Carolina, for ultimate delivery to Memphis, Tennessee. (Plaintiff's 56.1 Resp. ¶ 4.) During its voyage the container was lost at sea when it fell overboard. (Plaintiff's 56.1 Resp. ¶ 5.)

 II. Procedural Background

  Plaintiff brought this action against defendants for the lost cargo, claiming breach of contract, negligence, gross negligence, and breach of bailment. Defendants answered, and thereafter filed the instant motion for partial summary judgment. Defendants ask the Court to grant summary judgment that their liability is limited to $500 per package, and that the "packages" in this case are the 40 pallets. In support of their motion, defendants submit the statements of Nanik Kirpalani, a claims handler for defendant Mediterranean Shipping Company ("MSC"), and Petra Hommel, an employee of Bertling, and copies of documents related to the shipping agreement. Plaintiff opposes defendants' motion, and brings a cross-motion for summary judgment. Plaintiff asks the Court to grant summary judgment that the "packages" in this case are the 2880 cartons, and that defendants' liability is limited only to $1,440,000. In support of its motion, plaintiff submits the declarations of Michael Elsner, David Martin and Wolfgang Heep, employees of Geologistics, and documents related to the shipping agreement. Page 4


 I. Summary Judgment Standard

  A moving party is entitled to summary judgment 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental Inc., 95 F.3d 123, 128 (2d Cir. 1996). The substantive law underlying a claim determines if a fact is material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). When considering the motion, the Court's responsibility is not "to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).

  In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255; Holt, 95 F.3d at 129. The moving party bears the burden of demonstrating that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Serv. L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). "[T]he movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party discharges its burden of demonstrating that no genuine issue of material fact exists, the burden shifts to the nonmoving party to offer specific evidence showing that a genuine issue for trial exists. See Celotex, 477 Page 5 U.S. at 324. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "A `genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Dister v. Cont'l Group, 859 F.2d 1108, 1114 (2d Cir. 1988) (citing Anderson. 477 U.S. at 248).

  "[T]he treatment of a summary judgment motion under COGS A is no different from the way similar motions are dealt with in any other litigation." Transatlantic Marine Claims Agency. Inc. v. M/V OOCL Inspiration. 137 F.3d 94, 101 (2d Cir. 1998).

 II. COGSA's Applicability

  The parties agree that the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1300-1315 (2000), applies in this case. As COGSA's applicability is not in dispute, and as defendants move for summary judgment that COGSA, and particularly COGSA's per package limitation ...

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