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).
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 ...