The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Plaintiffs Tokio Marine and Fire Insurance Company, Ltd.
("Tokio") and Mitsubishi International Corporation ("MIC")
(collectively "Plaintiffs") brought an action in New York State
Supreme Court against defendant Federal Marine Terminal, Inc.
("FMT") alleging breach of contract, breach of bailment,
negligence, and conversion based on the alleged disappearance of
approximately 46 metric tons of MIC's cocoa during FMT's storage
and delivery of the cocoa. The case was removed to this Court
pursuant to 28 U.S.C. § 1441. FMT moves for summary judgment on
all claims, and Plaintiffs cross-move for summary judgment on all
claims. The Court denies both motions for summary judgment in their entirety for the reasons set forth
MIC purchases cocoa from suppliers in cocoa-producing countries
and sells to manufacturers in the United States, Japan, and
Europe. Tokio is the insurer of the cocoa at issue in this
proceeding pursuant to a marine open cargo policy. FMT is a
marine terminal operator providing services including cargo
loading and unloading, handling, and storage at the Port of
Albany in Albany, New York. On October 19, 2004, FMT filed a Third-Party Complaint against
ADM Cocoa, Inc. and Nestle USA, Inc. ADM Cocoa, Inc. and Nestle
USA, Inc., were customers of MIC and received deliveries of MIC's
cocoa from FMT during the period in which the cocoa at issue in
this proceeding was stored by FMT. On June 8, 2005, Plaintiffs,
FMT, and third-party defendant ADM Cocoa, Inc., stipulated to a
discontinuance of the action as against ADM Cocoa, Inc.
The claims in this proceeding arise from the alleged
disappearance of approximately 46 metric tons of MIC's cocoa
stored in FMT's terminal warehouse at the Port of Albany. The
cocoa arrived at the Port of Albany on May 14, 2001, aboard the
M/V PRITZWALK. FMT accepted the cocoa shipment into its terminal
warehouse for storage and reported receipt of 91,938 bags of
cocoa into its warehouse from the shipment. During the following
twelve months, FMT periodically re-packaged portions of the
stored cocoa into 2,000-pound sacks referred to as "supersacks"
and delivered the supersacks to MIC's customers.
In July, 2002, FMT discovered that although its inventory
records showed that 737 bags of cocoa remained from the PRITZWALK
shipment, no cocoa remained in its warehouse. FMT subsequently
reported the 737 bag shortage to MIC. The 737-bag shortage represents a deficit of approximately 46 metric tons of
Plaintiffs allege breach of contract, breach of bailment,
negligence, and conversion arising out of the 737-bag shortage.
FMT moves for summary judgment on the grounds that Plaintiffs'
claims are time-barred pursuant to a time limitation set out in
FMT's 2000 Marine Terminal Operator Schedule ("MTO Schedule"), a
schedule of rates and practices maintained by FMT pursuant to the
Ocean Shipping Reform Act of 1998 ("OSRA"). FMT argues that the
MTO Schedule is enforceable against MIC as an implied contract
between FMT and MIC pursuant to OSRA § 1707(f). Plaintiffs assert
that the MTO Schedule is not enforceable as an implied contract
because FMT and MIC entered into an actual contract for storage
and delivery of the cocoa which superceded the MTO Schedule
pursuant to 46 C.F.R. 525.2 (a) (3).
Plaintiffs cross-move for summary judgment on the ground that
Plaintiffs have made a prima facie showing of conversion and that
FMT has failed to adequately rebut the presumption of conversion
that arises from Plaintiffs' prima facie case. The Court finds
triable issues of material fact that preclude summary judgment on
any claim. Accordingly, the Court denies both motions for summary
judgment in their entirety.
II. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(c) authorizes the granting
of summary judgment when the evidence "show[s] that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material if it "might affect the outcome of the suit under the
governing law." Id. A factual dispute is genuine where "the
evidence is such that a reasonable jury could return a verdict
for the non-moving party." Id. The party moving for summary
judgment bears the initial burden of showing the absence of a
genuine dispute over any issues of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After such a
showing, the burden shifts to the non-moving party to provide
evidence of "specific facts showing that there is a genuine issue
for trial." Fed.R. of Civ. P. 56(e). In considering a motion for
summary judgment, the Court must "`construe the facts in the
light most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the
movant.'" Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126
(2d Cir. 2004) (quoting Dallas Aerospace, Inc. v. CIS Air
Corp., 352 F.3d 775, 780 (2d Cir. 2003)).
A. FMT'S MOTION FOR SUMMARY JUDGMENT 1. Applicability of FMT's MTO Schedule
FMT moves for summary judgment on the ground that Plaintiffs'
claims are time-barred pursuant to the terms of FMT's MTO
Schedule. As noted above, an MTO Schedule is a publicly-available
schedule of the rates and practices of a marine terminal operator
maintained by the operator pursuant to OSRA § 1707 (f). See 46
U.S.C. app. § 1707(f). FMT alleges that the terms of ...