United States District Court, S.D. New York
September 30, 2004.
DEL MONTE FRESH PRODUCE INT'L INC., Plaintiffs,
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
MEMORANDUM OPINION AND ORDER
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
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 S.A. v. M/V Dr. Juan B. Alberdi,
935 F. Supp. 358, 366-67 (S.D.N.Y. 1996) (applying COGSA even
where the Harter Act would otherwise apply because of express
language of bill of lading). COGSA, therefore, is the law
governing this case.
C. Duties Under COGSA
1. Plaintiff's Prima Facie Case
Under COGSA, a shipper seeking to recover from a carrier for
damage to goods "bears the initial burden of proving both
delivery of the goods to the carrier . . . in good condition, and
outturn by the carrier or by the stevedore . . . in damaged
condition." Vana Trading Co., Inc. v. S.S. Mette Skou,
556 F.2d 100, 104 (2d Cir. 1977); see also Westway Coffee Corp. v. M.V.
Netuno, 675 F.2d 30, 32 (2d Cir. 1982). In order to meet this
burden, the plaintiff must show, in essence, that "the goods were
damaged while in the carrier's custody." Caemint Food, Inc. v.
Brasileiro, 647 F.2d 347, 351-52 (2d Cir. 1981) (citation omitted).
CSAV moves for summary judgment on the ground that plaintiff
has not shown that the shipments of onions were in good condition
upon loading, while the plaintiff cross-moves for summary
judgment declaring that it has established its prima facie case.
(Def. Memo. at 3; CSAV's Reply Memorandum of Law in Further
Support of Motion and in Opposition to Cross-Motion ("Def.
Reply") at 1-2; Pl. Memo. at 9-11). The defendant argues that
"where the damaged cargo consists of perishables, direct evidence
and testimony from personal knowledge of the actual condition of
the goods are required." (Def. Memo. at 3). The plaintiff offers
the testimony of Mr. Cardenas, a former Del Monte product
manager, who has stated that the onions in question were of
"[v]ery good quality." (Cardenas Dep. at 91). This opinion was
based upon a report prepared by SGS, an independent company
retained by Del Monte to perform quality inspections before
delivery of the goods to the carrier. (Cardenas Dep. at 84-85,
The defendant cites several cases to support its position that
"direct testimony from personal knowledge of the actual condition
of the goods are required." (Def. Memo. at 3). However, in these
cases, the court held that plaintiff did not sustain its burden
of proof because it did not offer any evidence of a "direct
observation or inspection" of the cargo. See, e.g., Rit-Chem
Co. v. S/S Valiant, 743 F. Supp. 232, 236 (S.D.N.Y. 1990). Here,
the SGS report documents a direct inspection of the cargo. Even if
the report is hearsay as CSVA contends, it was created during the
normal and ordinary course of SGS' business (Cardenas Dep. at
87-88) and may therefore be admissible to prove that the onions
were in good condition when they were loaded. Direct inspections
of cargo by an agent of the plaintiff and by a governmental body
before the cargo is sealed in a container have been found to be
sufficient proof of a cargos good condition upon loading. See
Italusa Corp., Parmalat, S.p.A. v. M/V Thalassini Kyra,
733 F. Supp. 209, 215 (S.D.N.Y. 1990).
Mr. Cardenas testified in detail that Del Monte onions are
subject to two quality control inspections before being delivered
to the defendant (Cardenas Dep. at 83). After the onions are
harvested and dried, they are put in sacks and transported to a
packing station. There, the onions are segregated, and the onions
that do not meet Del Monte standards are rejected. Then, the
selected onions are packed and palletized. (Cardenas Dep. at
47-51). Just before the onions are loaded into the refrigerated
containers, SGS physically surveys the cargo and produces quality
control reports for every shipment of onions. This occurs in the
ordinary course of business. (Cardenas Dep. at 46, 81-91). Then
the onions are loaded on the vessel. (Cardenas Dep. at 50). Based
on this direct inspection process, there is some evidence that
the onions in question were in good condition upon loading. The defendant has produced no evidence to contradict plaintiff's
position. Nevertheless, the record shows that SGS does not
inspect every box of goods during its inspection. It only
inspects one box per pallet. (Cardenas Dep. at 85, 117). Since
only 25 to 35% of the onions of the three containers in question
were damaged, there is a possibility that the damaged onions were
not inspected by SGS. (Pl. Decl. of Disputed Facts, ¶ 23; Def.
Counter-Decl., ¶ 23). Therefore, an issue of material facts
exists as to whether the onions were in good condition when they
were delivered to the CSAV.
Accordingly, the defendant's summary judgment motion is denied
to the extent that it is based on the argument that the plaintiff
has not established its prima facie case. Likewise, the
plaintiff's summary judgment is denied.
2. Defendant's Defenses Under COGSA
Once the shipper establishes its prima facie case, the burden
shifts to the carrier to show by "significant probative evidence"
that it acted with due diligence under 46 U.S.C. § 1303(2), or
that the loss or damage falls within one of the COGSA exceptions
set forth in 46 U.S.C. § 1304(2). Royal Insurance Co. of America
v. S/S Robert E. Lee, 756 F. Supp. 757, 762 (S.D.N.Y. 1991).
a. Delay Caused by the Plaintiff's Agent
The defendant argues that the delay was the result of the
failure of Barthco, the plaintiff's customs house broker, to
timely file the customs forms for the clearance of the cargo in
Baltimore. (Pl. Memo at 10-12). In essence, CSAV is invoking the protection
of the "act or omission of shipper . . . or his agent" exception
set out in section 1304(2). This exception provides that
"[n]either the carrier nor the ship shall be responsible for loss
or damage resulting from . . . [an] [a]ct or omission of the
shipper or owner of the goods, his agent or representative . . ."
46 U.S.C. § 1304(2)(i). CSAV contends that Barthco was negligent
because it took no action to clear the cargo between November 20,
2001 and November 30, 2001. (Def. Memo. at 12). However, the
plaintiff has produced evidence that no customs forms were
prepared by Barthco to clear the vessel in Baltimore before
November 30, 2001, solely because Barthco was not informed of the
change of destination by the defendant before that date. (Pl.
Memo. at 25; Ricas Dep., at 27).
In response to CSAV's argument, Del Monte contends that CSAV
was responsible for the cargo's delay. When a revised bill of
lading is issued because of a change of destination, CSAV's
Import Department is supposed to change the freight manifest, and
its load port office must issue a correction notice which informs
the CSAV offices in the United States of the change. (Taglioreni
Dep. at 31-32). In this case, the port of loading sent an e-mail
instruction to CSAV's Baltimore office about the change of
destination (Taglioreni Dep. at 60-61, 69-70), but the e-mail
went unnoticed because it was sent to someone who no longer
worked for CSAV. (Taglioreni Dep. at 61, 69-70). Accordingly, Carol Bohli,
of CSAV's Baltimore office, instructed CSAV's stevedores to
discharge the three containers in Baltimore. (Decker Dep. at
75-77; Barnett Decl., Exh. 2). Del Monte argues that CSAV's
failure to instruct its Baltimore office about the change of
destination caused the cargo to be discharged in Baltimore, and
thus caused the delay.
The plaintiff also argues that the hold was put on the cargo by
the US Customs because CSAV failed to correct the freight
manifest when it was told of the change of destination (Pl. Memo.
at 18). However, Penelope Ricas, the branch manager of Barthco's
Baltimore office at the time of the incident, testified that she
did not know why the manifest hold was placed on the shipment.
(Ricas Dep. at 40, 73). She also said that, generally, a bill of
lading and invoice for the goods are all that are required for
Barthco to clear the cargo through customs. (Ricas Dep. at 21).
In addition, Mr. Cardenas testified that custom holds are usually
placed on goods because the U.S. Department of Agriculture wants
to run the products for pesticide residue or microbiological
analysis and agreed that such holds, which last up to seven days,
are "basically random." (Cardenas Dep. at 32). Accordingly, there
is a genuine issue of fact as to what caused customs officials to
place a hold on the cargo.
Since there is a genuine issue of fact with regard to whether the plaintiff or the defendant was negligent, both motions for
summary judgment as to the cause of the delay are denied.
b. Reasonableness of the Defendant's Acts
CSAV argues that it should not be liable for the delay since it
reasonably decided to discharge the three containers in question
in Baltimore, instead of Charleston (Def. Memo. at 8). In
essence, the defendant argues that it exercised due diligence
under 46 U.S.C. § 1304(2). Del Monte contends that CSAV's
discharge of the cargo in Baltimore was an unreasonable deviation
from the contract of carriage because it was motivated by
defendant's desire to save money. (Pl. Memo. at 20).
A vessel deviates from the contract of carriage when it
voluntarily departs from the geographical route which the
contracting parties have agreed it should follow. Deviation also
occurs when a cargo is discharged at a port other than the port
of destination. Hellenic Lines, Ltd. v. United States of
America, 512 F.2d 1196, 1206 (2d Cir. 1975) (stop for the
purpose of loading cargo was a prima facie unreasonable deviation
under COGSA); United Nations Children's Fund v. S/S Nordstern,
251 F. Supp. 833, 836 (S.D.N.Y. 1965).
Here, there was a clear deviation since the defendant
discharged in Baltimore, instead of Charleston, as the corrected
bill of lading required. However, contrary to the plaintiff's
contentions, there is evidence to suggest that the defendant's deviation was not unreasonable. Because the change of destination
was made while the vessel was en route, and the containers had
most likely been stowed in accordance with the sequence of their
intended discharge, the three containers in question may not have
been discharged in Charleston without extraordinary costs which
no shipper could reasonably expect. (Taglioneri Dep. at 35-40).
Therefore, the question of whether the defendant's decision to
deviate was reasonable turns on disputed facts. See
Transatlantic Marine Claims Agency, Inc. v. SS American Leader,
No. 84 Civ. 8771, 1986 WL 1191 (S.D.N.Y. Jan. 17, 1986).
Accordingly, the defendant's motion for summary judgment on the
issue of whether the delay or deviation was unreasonable must be
c. The Defendant's Knowledge of the Characteristics of the
The plaintiff argues that the defendant should have been on
notice of the short storage life of sweet onions. (Pl. Memo. at
20-22). Plaintiff cites a number of cases for the general
proposition that under 46 U.S.C. § 1303(2), a carrier has a duty
to know the shipping requirements of products that it carries and
to satisfy them, or to decline to accept the products. Amerada
Hess Corp. v. SS Phillips Oklahoma, 558 F. Supp. 1164, 1168
(S.D.N.Y. 1983) ("It is well settled that, when a carrier accepts
cargo, it is charged as a matter of law with knowledge of its
characteristics and is obligated to give it the care required.")
CSAV answers that it should not be charged with knowledge of the special characteristics of the onions because there was no
proof that the unique characteristics of the cargo were generally
known (Def. Memo. at 14-15). To support its position, CSAV
emphasizes that plaintiff's own surveyor was unaware of the
purportedly special characteristics of these onions. (Pl. Memo.
at 15; Cardenas Dep. at 39). However, the plaintiff has not
categorized the surveyor as an expert. He is a marine surveyor
contracted to confirm damage to cargoes arriving in the United
States. He was hired by the plaintiff to verify the damage to the
onions (Pl. Decl. Disputed Facts, ¶¶ 19-20). Moreover, the
defendant has not presented other witnesses testifying that they
did not know about the storage life of sweet onions.
In addition, here the bill of lading may have caused some
confusion about the nature of the onions. "Cebolla amarilla
dulce" or "sweet yellow onions" was written on the bill of
lading. (Cardenas Dep. at 38; Exh. C. attached to the declaration
of Gorth Wolson). Yellow onions, as opposed to sweet yellow
onions, are considered dry onions. (Cardenas Dep. at 37). Sweet
onions have a storage life of six weeks maximum, whereas dry
onions have a much longer storage life (Cardenas Dep. at 37).
Neither the USDA Agriculture Export Transportation Handbook nor
the Del Monte website mention "sweet yellow onions". (Cardenas
Dep. at 40-41). The "sweet yellow onion" is a type of relatively
new onion and that was developed through hybridization. (Cardenas
Dep. at 41, 43). Based on these facts, it is not clear that by reading the bill of
lading the defendant would have known that the onions in question
had a short storage life.
However, the record shows that the opposite inference could
also be drawn. A carrier has a duty to ascertain the need for and
provide special treatment when it has actual or constructive
notice of the characteristics of a cargo arising from custom,
trade practice or prior experience. O'Connell Machinery Co. v.
M.V. Americana, 797 F.2d 1130, 1134-35 (2d Cir. 1986). Here,
there is some evidence that the shipment of onions in question
was not a single shipment, but was part of a series of shipments
for fall 2001. (Cardenas Dep. at 13). Del Monte entered into a
contract with CSAV to ship "sweet onions" from Peru to the United
States on a weekly basis from August 22, 2001 through February
28, 2001. (Taglioneri Dep. at 14; Suarez Dep. at 12, 16-17). In
addition, according to Mr. Cardenas, people who are "in the
business of transporting" sweet onions "know what a sweet onion
is." (Cardenas Dep. at 45). Therefore, CSAV may have had
constructive notice of the characteristics of the onions.
Since there is a disputed issue as to constructive notice,
summary judgment is denied for both the plaintiff and defendant
on the issue of whether the defendant had knowledge, constructive
or otherwise, of the characteristics of sweet onions. 3. Damages
COGSA provides that "in no event shall the carrier be liable
for more than the amount of damage actually sustained."
46 U.S.C. § 1304(5). Thus, where there is no damage, there can be no
liability. Sunpride, 2003 WL 22682268, at *10. It is
established that "damaged condition" as the term is used in COGSA
includes both physical damage and financial loss caused by delay.
Mitsui Marine Fire and Insurance Co. v. Direct Container Line,
Inc., 119 F. Supp. 2d 412, 414 (S.D.N.Y. 2000). Actual loss or
the measure of damages in a delay case may be shown by
demonstrating the difference between the market value of the
goods on the expected date of delivery and the market value when
they did arrive. Id. at 417.
However, courts have some flexibility in determining how
damages should be calculated. See Internatio, Inc. v. M.S.
Taimyr, 602 F.2d 49, 50 (2d Cir. 1979) ("The test of market
value is at best but a convenient means of getting at the loss
suffered. It may be discarded and other more accurate means
resorted to if, for special reasons, it is not exact or otherwise
not applicable."). The guiding principle is to set damages at
"the amount necessary to put the injured parties in the exact
position they would have been in had there been no breach";
computation of damages is a factual issue for decision by the
trial court. Seguros Banvenez, S.A. v. S/S Oliver Drescher,
761 F.2d 855, 860-61 (2d Cir. 1985) (citations omitted). Thus, a
plaintiff can prove its damages in a delay case by calculating the price differential between the expected sale
price on the expected delivery date and the mitigation resale
price. Sunpride, 2003 WL 22682268, at *14.
CSAV contends that the plaintiff's proof of damages is not
sufficient to establish that it suffered a loss in market value.
The plaintiff has produced a printout from the USDA website
showing an average price of $18.00 per carton of sweet onions
from Peru from November 20, 2001 to December 6, 2001. (Barnett
Decl., Exh. 4). In addition, the plaintiff has provided invoices
for undamaged cargos of sweet onions that they shipped to
customers between November 19, 2001 and December 15, 2001,
indicating an average price per box of $19.19. (Barnett Decl.,
Exh. 3). It has also produced invoices for 2672 boxes that it
sold at a discount price between December 14, 2001 and January
24, 2002 (Barnett Decl., Exh. 5). The average price per box at a
discount was $10.76. CSAV argues that the invoices reflecting the
discount do not identify any particular container of sweet
onions, and that it is therefore not possible to know whether the
average price of $10.76 involved a distressed cargo or whether
the price simply reflects the fluctuation of the market. (Def.
Reply at 16). However, the USDA printout is evidence that the
average price for a box of sweet onions does not vary $7 or $8 in
a period of one or two weeks, unless the cargo is damaged. This
is corroborated by Glenn Suarez, who is in charge of
investigating and presenting maritime cargo damage claims as the director of Del Monte marine
insurance. (Suarez Dep. at 5-6, 65-66). In addition, Mr. Suarez
testified that the invoices provided by the plaintiff were for
undamaged as well as damaged cargo and that he used these
invoices to calculate the damages in this case (Suarez Dep. at
57, 62). He also stated that if the price is around the USDA
market price, the cargo is in good condition, whereas if the
price is drastically below the USDA price, the cargo is not in
good condition. (Suarez Dep. at 81-82). In addition, there is
some evidence that the plaintiff sold damaged cargo at a discount
price to certain low end customers like Top Banana and Levin and
that other customers, such as Walmart, would only accept good
quality onions. (Cardenas Dep. at 64-66). The invoices provided
by plaintiff identify the buyers of the onions. Some of the boxes
of onions which sold for an average price of $19.19 were sold to
Walmart, and some of the boxes sold for an average price of
$10.76 were sold to Top Banana and Levin. (Barnett Decl., Exhs.
3, 5). Therefore, a fair inference can be drawn that a box of
undamaged cargo could be sold for an average price of $19.19 and
a box of damaged cargo sold for approximately $10.76 around the
time the events in question occurred. The issue of damages should
therefore also be submitted to the trier of fact.
For the reasons set forth above, both the defendant's motion for summary judgment and the plaintiff's cross-motion are denied.
Counsel shall submit the joint pretrial order by October 29,
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