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United States District Court, S.D. New York

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 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, 91).

  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 denied.

  c. The Defendant's Knowledge of the Characteristics of the Cargo

  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.") (citation omitted).

  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, 2004.



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