United States District Court, S.D. New York
June 2, 2004.
ZIM-AMERICAN ISRAELI SHIPPING CO., INC., Plaintiff
BEACON INTERNATIONAL, INC., Defendant
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM and ORDER
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.
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 ).
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
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.
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.
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