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.
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
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.
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
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 ...