The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Plaintiffs have commenced separate maritime actions against
Defendants for negligence and breach of contract arising out of
the loss at sea of containers containing photographic materials
and polyvinyl chloride. Defendants now seek partial summary
judgment limiting their liability to $500 per package. Defendants
contend that only 35 packages of photographic materials and 16
packages of polyvinyl chloride were lost. The plaintiffs who
filed suit for the loss of the photographic materials cross-move
for summary judgment declaring that 567 packages were lost, and
that liability should not be limited in any event because the
defendants committed an unreasonable "quasi-deviation." The
polyvinyl-chloride plaintiffs oppose the defendants' motions but
do not cross-move for relief. For the following reasons, all of
the motions are denied.
Plaintiffs Agfa Gevaert AG and Agfa Corporation were the owners
and shippers of the lost photographic materials. (Giuliano Decl.
¶ 2). Plaintiff Fortis Insurance Company, N.V. was the lead
insurer of these materials. (Agfa Compl. ¶ 4). For the purposes
of these motions, these three plaintiffs are collectively
referred to as "Agfa." Plaintiff Allianz Marine & Aviation
(France) has filed suit as the subrogated underwriter of Rhovyl, S.A. ("Rhovyl"), the owner and shipper of the lost
polyvinyl chloride. (Allianz Compl. ¶¶ 2-3). For the purposes of
these motions, these two plaintiffs are referred to as "Allianz."
Defendants TMM Lines Limited, LLC ("TMM") and Lykes Lines
Limited, L.L.C. ("Lykes") are subsidiaries of Defendant CP Ships.
(Jones Decl. ¶ 1). TMM entered into a bill of lading contract
with Agfa concerning the carriage of the photographic materials;
Lykes entered a bill of lading contract with Allianz concerning
the carriage of the polyvinyl chloride. (TMM Rule 56.1 Stmt.,
Exhs. A & B). Defendant Hapag-Lloyd Container Line Gmbh ("Hapag")
was the time charterer of the M/V Maersk Norfolk ("Norfolk") for
the voyage at issue. (Godemann Aff. at 2). Hapag made space
available aboard the Norfolk for TMM and Lykes containers
pursuant to an Operational Implementing Agreement and
Cross-Charter Party with TMM and Lykes. (Id. at 2, Exh. A).
TMM, CP (defendants in the Agfa action) and Lykes (defendant in
the Allianz action) are represented by the same counsel. By
Memo-Endorsed Order dated October 5, 2004, the Court consolidated
the two actions for the purposes of the TMM, CP and Lykes motion
for partial summary judgment. Hapag (defendant in the Agfa
action) has other counsel and has filed its own motion for
partial summary judgment with essentially the same arguments.
Agfa has cross-moved for summary judgment; Allianz has not. FACTUAL BACKGROUND
On March 3, 2003, at the Port of Rotterdam, Agfa's container of
photographic materials and Allianz's container of polyvinyl
chloride were placed aboard the Norfolk. The next day, the
Norfolk left the Port of Southhampton, its last European port of
call, for a transatlantic voyage to the Port of New York. During
the journey, the mighty Neptune raised a storm and claimed as
booty several of the Norfolk's containers, including Agfa's
container of photographic materials and Allianz's container of
The Agfa and Allianz bills of lading are essentially identical.
Under the column headed "DESCRIPTION OF PACKAGES AND GOODS" in
the Agfa bill of lading, the breakdown of the shipment is as
Order 8042217H2: 348 Karton on 13 Euro-Palette
12 Karton on 1 Euro-Palette
Order 7544511H3: 17 Karton on 1 Euro-Palette
Order 8051133B2: 11 Bulk-Palette on 5 Palette
Order 7549536L3: 60 Karton on 4 Palette
Order 7511401D3: 60 Karton on 2 Pallets
Order 7567407I3: 6 Karton
Order 7569453C3: 15 Karton on 1 Euro-Palette
7 Karton on 1 Euro-Palette
Order 7535091E3: 27 Karton on 1 Euro-Palette (TMM Rule 56.1 Stmt., Exh. A). On the last page of the bill of
lading appears the entry: "35 SSC/NVE SHIPPED ON BOARD FREIGHT
PREPAID 567 CARTON(S)." (Id.).*fn1
On the Allianz bill of
lading, the relevant descriptions of the shipment are "80 BALES
ON 16 PALLETS POLYVINYL CHLORIDE FIBER" and "80 UNIT(S)." (Id.,
Exh. B). Both bills contain the number "1" in the column headed
"NO. OF PACKAGES." In both cases, this entry signifies that one
container housed the pallets and cartons. Neither Agfa nor
Allianz declared the value of their goods on the faces of their
respective bills of lading. (Rule 56.1 Stmts. ¶¶ 8, 11).
The last page of each bill of lading sets out terms and
conditions of the carriage in a manner that gives new meaning to
the term "fine print." An electron microscope reveals the
following relevant language:
5(a)(2). [I]n the event that this Bill of Lading
covers shipments to or from the United States of
America, then the Carriage of Goods by Sea Act of the
United States ("COGSA") shall be compulsorily
applicable. . . .
11(a). Goods, including Goods packed in Containers by
the Carrier or Merchant, may be carried on deck
without notice to the Merchant. Goods, other than
livestock, stowed in any covered-in-space, or packed
in a Container carrier on deck shall be deemed to be
stowed under deck for all purposes including, where applicable, COGSA
and the Hague Rules.
18(b). In no event shall the carrier be liable for
loss or damage to or in connection with the Goods in
an amount exceeding US $2.50 per kilo, or US $500 per
Package or per shipping unit where the Goods are not
shipped in Packages. If such limitation is
inapplicable under the local law in which an action
is brought, then the Hague Rules (Unamended)
limitation of £100 sterling lawful money of the
United Kingdom per package or shipping unit shall
apply, or alternatively, if the shipment covered by
this Bill of Lading originates in a country where the
Hague-Visby Amendments to the Hague Rules are
mandatorily applicable, Carriers [sic] liability
shall not exceed 2 SDR per kilo or 666.67 SDR per
Package or shipping unit whichever the greater.
(TMM Rule 56.1 Stmt., Exhs. A & B). The $500 per package
limitation of liability in Section 18(b) is identical to that of
the Carriage of Goods by Sea Act ("COGSA") in cases where the
shipper has not declared the nature value of the goods in the
bill of lading. See 46 U.S.C. App. § 1304(5).
Defendants TMM and CP Ships seek partial summary judgment
limiting their liability for the loss of Agfa's photographic
materials to $17,500. They claim that "$500 per Package"
limitation specified in Section 18(b) and COGSA applies because
Agfa did not declare the value of the materials in the bill of
lading. (TMM Br. at 2, 5-6).*fn2 They also claim that Agfa
had only 35 "packages" onboard the Norfolk (29 pallets and 6
loose cartons). (Id. at 9). Defendant Hapag moves for the same relief, citing a "Himalaya Clause" in the Agfa-TMM bill of
lading. (Hapag Br. at 3-6).*fn3 Defendant Lykes seeks
partial summary judgment limiting its liability for the loss of
Allianz's polyvinyl chloride to $8000 ($500 × 16 pallets). (TMM
Br. at 3, 6).
Agfa cross-moves for summary judgment declaring that the $500
per package limit is not applicable because the defendants
committed an unreasonable "quasi-deviation" by stowing the lost
containers on deck instead of below deck. (Agfa Br. at 5-10).
Alternatively, if the Court determines that the $500 limitation
applies, Agfa moves for summary judgment declaring that the
correct number of "packages" is 567, not 35. (Id. at 10-12).
Agfa's cross-motion does not seek a judgment with respect to the
Allianz opposes Lykes's motion for partial summary judgment
without a cross-motion. Allianz contends that if the $500 COGSA
limitation applies, there were 80 "packages" onboard the Norfolk,
not 16. (Allianz Br. at 3-4). Liability therefore would be
$40,000, not $8000. Alternatively, Allianz urges that if the
number of packages is found to be 16, then the $2.50 per kilo limitation in Section 18(b) of the bill of lading should
apply. (Id. at 5). This calculation would result in liability
of $40,007.50. Allianz also reiterates Agfa's ...