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September 30, 2004.

M/V CAP DOMINGO her engines, boilers, tackle, furniture, apparel, etc., in rem and COMPANIA SUD AMERICANA DE VAPORES S.A., AMERICAN TRANSPORTATION GROUP and COMETA Maritime, in personam, Defendants.

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


The plaintiff, Del Monte Fresh Produce International, Inc. ("Del Monte"), an agent engaged in the importation, distribution and sale of fresh fruits and vegetables, has brought this admiralty action under 28 U.S.C. § 1333 against defendants Compania Sud Americana de Vapores S.A. ("CSAV"), a steamship line and a common carrier by sea, MV Cap Domingo, a vessel operated as a common and private carrier of goods in ocean transportation, American Transportation Group, an agent of CSAV engaged in the business of common and private carriage of merchandise by water for hire, and Cometa Maritime, an entity engaged in the business of common and private carriage of merchandise by water. CSAV agreed to transport Del Monte's shipments of onions from Paita, Peru, to Charleston, South Carolina. In its Complaint, the plaintiff alleges that after three weeks of delay, CSAV advised the plaintiff that the cargo was not discharged in Charleston, but instead was discharged in Baltimore. The plaintiff further claims that when it finally received the shipment of onions in Charleston, the cargo was damaged and had deteriorated due to the delay. As a result, Del Monte claims that it should recover at least $22,524, representing the value of the damaged cargo.

Each party has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, both motions are denied.


  On or about October 10, 2001, Del Monte & CSAV entered into a contract by which CSAV agreed to ship sweet onions from Peru to the United States from August 22, 2001 through February 28, 2002. (Service Contract Agreement, attached as Exh. 8 to the Declaration of Gregory Barnett in Support of Plaintiff's Opposition to Defendant's Summary Judgment Motion and Cross-Summary Judgment Motion, dated March 30, 2004 ("Barnett Decl.")). On or about November 1, 2001, a total of eleven containers of Del Monte sweet onions were loaded on board the MV Cap Domingo in Peru. (Complaint ("Compl."), ¶¶ 7, 8; Deposition of Mario Cardenas ("Cardenas Dep."), attached as Exh. E to the Wolson Decl. at 85-86). The containers were brought to Guayaquil, Ecuador and then transhipped on the CCNI Antartico for discharge in the United States. (Deposition of Edward Decker ("Decker Dep."), attached as Exh. F to the Declaration of Garth Wolson in Support of CSAV's motion for Summary Judgment dated Feb. 26, 2004 ("Wolson Decl."), at 32, 49-50). Three containers were originally supposed to go to Baltimore and eight to Charleston. Nevertheless, while the vessel was en route, the plaintiff requested that those three containers go to Charleston, instead of Baltimore. (Deposition of Joseph Taglioreni ("Taglioreni Dep."), attached as Exh. H to Wolson Decl. at 33-35; Cardenas Dep. at 85-86). The Bills of Lading were revised during transit. Del Monte was charged more than $200 per container to change the final destination from Baltimore to Charleston. (Taglioreni Dep. at 30-34, 37, 60; Cardenas Dep., at 22). However, the three containers were discharged in Baltimore (Deposition of Penelope Ricas ("Ricas Dep."), attached as Exh. D to Wolson Decl.) on or about November 20, 2001. The eight remaining containers were discharged in Charleston soon after. There was no physical damage to those eight containers. The three containers at issue were cleared through customs only on December 5, 2001. (Barnett Decl., ¶ 11). CSAV arranged for the trucking from Baltimore to Charleston, but a hold was put on the cargo by US customs until December 10, 2001. The three containers finally arrived in Charleston by truck on December 11, 2001, three weeks after the eight other containers. (Decker Dep. at 66). A survey report of the three containers conducted in Charleston revealed that 25 to 35% of the onions were physically damaged. (Plaintiff's Declaration of Disputed Facts Pursuant to Rule 56.1 ("Pl. Decl. of Disputed Facts"), ¶ 23; CSAV's Counter-Declaration In Response to Plaintiff's Rule 56.1 Statement ("Def. Counter-Decl."), ¶ 23). The report reflected problems with the onions due to age such as shriveled skin. (Cardenas Dep. at 68; Deposition of Glenn Suarez ("Suarez Dep."), attached as Exh. G. to the Wolson Decl. at 70). The plaintiff ultimately sold the damaged onions at a discount.


  A. Motion for Summary Judgment

  Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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); accord Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).

  The defendant, CSAV, moves for summary judgment on the grounds that: (1) the plaintiff has not established a prima facie case under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. §§ 1300-1315, because it has failed to show the cargo's good order and condition upon loading; (2) the plaintiff has failed to show that the cargo suffered an unreasonable delay for which CSAV was liable; (3) the alleged delay is attributable solely to the acts of the plaintiff's own broker; (4) CSAV cannot be held liable for failure to provide special treatment where it cannot be charged with knowledge of the short storage life of the onions in question; and (5) the plaintiff has failed to establish with a reasonable degree of certainty that the cargo at issue sustained a loss in market value attributable to the delay. (Defendant's Memorandum of Law ("Def. Memo.") at 3-19).

  The plaintiff asserts five arguments in its cross-motion for summary judgment. It contends that: (1) it has satisfied its burden of proving a prima facie case by establishing the cargo's good condition upon loading and damage upon ultimate delivery; (2) CSAV failed to comply with the applicable law by unreasonably deviating from the terms of the contract and causing unreasonable delay; (3) CSAV was on notice of the cargo's special characteristics; (4) CSAV's negligence caused the damage to the cargo, at least in port; and (5) there is sufficient evidence to establish market loss for the cargo at issue. (Plaintiff's Memorandum of Law in Support of Plaintiff's Opposition to Defendant CSAV's Summary Judgment Motion and Cross-Summary Judgment Motion against Defendant ("Pl. Memo.") at 29-28).

  B. Applicable Law

  In admiralty cases, COGSA applies to "the period from the time when the goods are loaded on to the time when they are discharged from the ship." Sunpride (Cape) (Pty) Ltd. v. Mediterranean Shipping Co., No. 01 Civ. 3493, 2003 WL 22682268, at *4 (S.D.N.Y. Nov. 12, 2003) (citation omitted). The Harter Act, in contrast, "applies during the time period following discharge of cargo from the ship and prior to its delivery; this coverage during the unloading period continues until proper delivery has been made to a fit and customary wharf." Id. (citation omitted).

  Nevertheless, "parties may contract to apply COGSA during the period before delivery and after discharge and COGSA will be applied when the contract employs sufficiently express language of incorporation." Id. (citation omitted). In this case, the relevant bills of lading state that "for shipments to and from the United States . . . [t]he provisions stated in COGSA shall govern the Goods before they are loaded on and after they are discharged from the Vessel and throughout the entire time that they are in the custody of the Carrier at a United States port." (Bills of Lading dated November 1, 2001, attached as Exh. C. to the Wolson Decl.). Since "the bills of lading expressly state that COGSA applies post-discharge, they are sufficiently specific to extend COGSA through contract to the period after discharge and before delivery, even where the Harter Act would otherwise govern." Id. (citing R.B.K. Argentina ...

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