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ZIM-AMERICAN ISRAELI SHIPPING CO. v. BEACON INT'L.

United States District Court, S.D. New York


June 2, 2004.

ZIM-AMERICAN ISRAELI SHIPPING CO., INC., Plaintiff
v.
BEACON INTERNATIONAL, INC., Defendant

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM and ORDER

INTRODUCTION

In this action, which is within the Court's admiralty and maritime jurisdiction, the plaintiff, Zim-American Israeli Shipping Co., Inc. ("Zim American") has made a motion, pursuant to Fed.R.Civ.P. 56, for partial summary judgment. Through that motion, the plaintiff seeks to have the counterclaim asserted by the defendant dismissed. The defendant has not responded to the plaintiff's motion. Therefore, based upon the submissions made by the plaintiff, the Court finds that the following facts are not in dispute.

  Zim American is the agent of a disclosed principal, Zim Israel Navigation Company, Limited ("Zim Israel"). Zim Israel is a carrier of cargo for hire. In August 2002, Zim Israel agreed to transport two shipments of corrosive liquid from Chicago, Illinois, to the port of Kingston, Jamaica, for the defendant, Beacon International Incorporated ("Beacon"), under bills of lading bearing Nos. ZIMUNYE194706 and ZIMUNYE194174. Zim Israel transported the materials noted above, in consideration of an agreed-upon freight and, on September 13, 2002, delivered the cargo to its intended destination.

  In October 2002, Zim Israel agreed to transport a shipment of aluminum trailer parts from George, Iowa, to San Salvador, El Salvador, for Beacon, under bill of lading No. ZIMUNYE197438. Zim Israel agreed to transport these goods for Beacon in consideration of an agreed-upon freight. On November 9, 2002, Zim Israel delivered the goods it had agreed, in October 2002, to transport for Beacon to their intended destination. Zim Israel maintains that it carried all of Beacon's shipments to their intended destinations without incident.

  After transporting Beacon's shipments, Zim Israel demanded that Beacon pay the agreed-upon freight. However, no payment has been tendered by Beacon to Zim Israel for its services. As a consequence, the instant action was initiated on August 8, 2003, when Zim American filed a complaint with the Clerk of Court for this judicial district. On November 13, 2003, more than one year after the cargo Zim Israel transported for Beacon had been delivered to Beacon or its agents, Beacon filed an answer to the plaintiff's complaint and asserted a counterclaim alleging that the cargo transported by Zim Israel had been damaged in transit and, as a result, Beacon suffered losses. Prior to November 13, 2003, Beacon had never informed Zim Israel of the losses it allegedly suffered.

  Zim American maintains that Beacon's counterclaim was not asserted timely. Therefore, it contends that, as a matter of law, a judgment in favor of the plaintiff on that counterclaim should be entered by the Court. In support of its position, Zim American points to the bills of lading under which Zim Israel transported Beacon's cargo. Zim American notes that the printed text on the backs of the bills of lading, among other things, makes clear that the bills of lading are subject to the provisions of the Carriage of Goods by Sea Act ("COGSA"). Moreover, according to the plaintiff, the most pertinent provision of COGSA requires that a liability claim against a carrier for loss of or damage to a shipment entrusted to it for transportation, must be made within one year of either the delivery of the goods or the date on which they should have been delivered. Zim American contends that after the running of the one-year limitation period, no claim for loss or damage may be asserted against it by Beacon. As noted above, Zim Israel delivered Beacon's shipments to their intended destinations on September 13, 2002, and November 9, 2002. However, no claim for loss or damage was made by Beacon until November 13, 2003.

  DISCUSSION

  Summary judgment may be granted in favor of the moving party "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. See Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.) cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998).

  When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998)(citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 [1986]).

  The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).

  In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings, and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. at 1355 n. 11. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Summary judgment should only be granted if no rational fact finder could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).

  COGS A is codified at 46 U.S.C. App. § 1300, et seq. It "is based upon the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading . . . [and] applies ex proprio vigore to all contracts for carriage of goods by sea between the ports of the United States and the ports of foreign countries." Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d 99, 100 (2d Cir. 1999); 46 U.S.C. App. § 1312. Therefore, inasmuch as the cargo at issue in this case was shipped by sea under bills of lading from ports in the United States to ports in Jamaica and El Salvador, COGSA applies. See 46 U.S.C. App. § 1300 ("Every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter."). Moreover, each of the bills of lading under which Zim Israel transported goods for Beacon contains the following text:

During the period of carriage, which period may also include any period when the goods are, in accordance with the contract for carriage under the actual and legal custody and care of the carrier, in a seaport or terminal, the Carrier's responsibility shall be in accordance with the terms of this Bill of Lading and shall be subject to and in accordance with the rules contained in the International Convention for Unification of Certain Rules Relating to Bills of Lading dated 25th August 1924, as amended in the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels, February 23, 1960 ("VISBY Rules") and in the Brussels Protocol, 1979 (SDR Protocol) (hereinafter referred to as the "Hague Rules") which are hereby fully incorporated in this Bill of Lading and form an integral part hereof along with any legislation making the Hague Rules or any amendment thereto compulsorily applicable to this Bill of Lading including the Carriage of Goods by Sea Act of the United States of America approved 16th April 1936.
Zim Israel Bills of Lading, paragraph 4(II).

  Therefore, perforce of the express language in the relevant bills of lading, it is incontestable that the provisions of the COGSA are applicable in this case.

  46 U.S.C. App. § 1303, in its most pertinent part, provides that ". . . the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." 46 U.S.C. App. § 1303(6).

  The uncontroverted record evidence establishes that Beacon's counterclaim for losses it alleges it suffered due to damage to its cargo, while that cargo was being transported by Zim Israel, was not asserted until more than one year had elapsed from the time Zim Israel delivered Beacon's shipments to it at their respective ports of destination. Therefore, the Court finds that Beacon's counterclaim was not asserted timely, in accordance with 46 U.S.C. App. § 1303(6). See Mikinberg v. Baltic Steamship Co., 988 F.2d 327, 330 (2d Cir. 1993). Consequently, Beacon may not prosecute its counterclaim.

  CONCLUSION

  For the reasons set forth above, the plaintiff's motion for partial summary judgment is granted and the counterclaim asserted by the defendant in this action is dismissed.

20040602

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