Plaintiff Great American Insurance Co. of New York sues as subrogee to recover for the loss of a cargo container shipped under a through bill of lading*fn1 from Burlington, North Carolina to Guatemala City, Guatemala.
Each side moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. There is no genuine dispute about any material fact underlying the motions, Fed. R. Civ. P. 56(c), and the relevant question is one of law.
On February 25, 2004, defendant Maersk contracted with shipper Karim's International USA S.A. for the carriage of a containerized shipment of 158 cases of yarn from Burlington, North Carolina to Guatemala City, Guatemala. Under the bill of lading, the cargo container was carried by land from Burlington to Port Everglades, Florida where it was loaded aboard the THOR SUSANNE for ocean transport to Santo Tomas de Castilla, Guatemala. The container arrived in Santo Tomas de Castilla without incident.
On March 1, 2004, at approximately 1:00 a.m., the container departed the Maersk terminal at Santo Tomas de Castilla for inland carriage by truck to Guatemala City. The truck proceeded to a security checkpoint just outside the city limit of Guatemala City. After leaving the security checkpoint, at approximately 7:00 a.m. on March 1, 2004, the truck carrying the container was intercepted by armed hijackers who detained the driver for several hours and stole the cargo within the container as well as a radio and cell phone from the driver. On March 2, 2004 the hijacked track was found with physical damage. The cargo was not recovered.
Maersk's bill of lading states the place of delivery as "Guatemala City S/," which signifies "store door," meaning the container is to be delivered to the consignee's address in Guatemala City. See Deposition Transcript of Messoud Messkoub, Maersk's Director of Risk and Claim Management, 21; September 5, 2006 Declaration of Massoud Messkoub ("Messkoub Dec.") Ex. A. The container was en route to its delivery address under the bill of lading when it was hijacked.
Maersk's bill of lading also contains a "hijacking clause" which states:
The carrier shall have no liability whatsoever arising out of or in connection with the acts of any person who unlawfully, by the use of force or threats of any kind, damages, seizes or exercises control over the Goods, over any Sub-Contractor or over any means of transportation or storage of the Goods.
For the purposes of this motion only, the shipper's subrogee (plaintiff) concedes*fn2 that the loss was caused by a hijacking and that the sole argument against the application of the "hijacking clause" is the Harter Act, 46 U.S.C. § 190, which states:
It shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect.
The Harter Act "governs the responsibilities of carriers until 'proper delivery' of the cargo has been made." Colgate Palmolive Co. v. M/V "Atlantic Conveyor", 1996 U.S. ...