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Mediterranean Shipping Company, (Usa) Inc v. Worldwide Freight Services

August 29, 2012

MEDITERRANEAN SHIPPING COMPANY, (USA) INC., PLAINTIFF,
v.
WORLDWIDE FREIGHT SERVICES, INC., T/A UNITED AMERICAN LINE, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

OPINION AND ORDER

I. Introduction

Plaintiff Mediterranean Shipping Company (USA), Inc., ("MSC") brought this action to recover demurrage and other charges which have accrued with respect to two containers MSC carried in 2009 for the benefit of defendant, Worldwide Freight Services, Inc., trading as, United American Line ("UAL") (Complaint, dated Dec. 15, 2010 (Docket Item 1) passim). MSC also seeks to recover its legal fees (Complaint ¶ 27). The parties consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c). Federal jurisdiction is based on 28 U.S.C. § 1333.

By notice of motion dated October 7, 2011 (Docket Item 12), MSC moves for summary judgment. For the reasons set forth below, MSC's motion is granted with respect to demurrage charges and pre-judgment interest and is denied with respect to all other charges.

II. Facts

MSC has submitted a statement of undisputed facts pursuant to Local Civil Rule 56.1 which it contends have been established either through documentary evidence or by a declaration submitted in connection with its motion*fn1 (Plaintiff's Rule 56.1 Statement of Uncontested Facts, dated Oct. 7, 2011 (Docket Item 18)("Pl.'s 56.1 St.")).

UAL has failed to submit its own 56.1 statement. Accordingly, the facts set forth in Pl.'s 56.1 St. are deemed admitted. Pearson v. Lynch, 10 Civ. 5119 (RJS), 2012 WL 983546 at *1 n.1 (S.D.N.Y. Mar. 22, 2012) (Sullivan, D.J.), citing Local Civ. R. 56.1(c), and Gitlow v. United States, 319 F. Supp. 2d 478, 480 (S.D.N.Y. 2004) (Kaplan, D.J.). Nevertheless, MSC must still show that it is entitled to judgment as a matter of law based on evidence in the record. Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

A. Background

MSC is a New York company which acts on behalf of its principal, Mediterranean Shipping Company of Geneva, SA, a Swiss entity, to book cargo for carriage originating in the United States and to collect demurrage that has accrued on containers that were used for such shipments (Pl.'s 56.1 St. at ¶¶ 1-2, citing Declaration of Jorge Boose, dated Oct. 7, 2011 ("Boose Decl.") ¶ 3).

MSC, together with its principal, carries containerized cargo pursuant to a standard form bill of lading that includes terms and conditions on the back side of the bill of lading and in MSC's tariff, which is maintained with the Federal Maritime Commission and incorporated by reference in the bill of lading (Pl.'s 56.1 St. at ¶ 5, citing Boose Decl. ¶¶ 11-12 & Exhibit A).

Shippers of cargo with MSC have a fixed number of days to use and return MSC's container, known as "free-time"; if a shipper fails to return MSC's container within the free-time, MSC will charge the shipper a fee for demurrage (Pl.'s 56.1 St. at ¶¶ 3-4, citing Boose Decl. ¶ 6).

B. Shipment to Jordan

MSC carried a 40-foot high-cubed shipping container bearing a registration number TTNU9727365 ("Container '365"), pursuant to bill of lading number MSCUNQ619164, from New York City to Al Aqaba, Jordan, on August 16, 2009 (Pl.'s 56.1 St. at ¶ 6, citing Boose Decl. ¶¶ 16-17; Exhibit B to Boose Decl.). UAL is listed as the shipper on the bill of lading (Pl.'s 56.1 St. at ¶ 7, citing Exhibit B to Boose Decl.).

Container '365 was discharged in Jordan on September 28, 2009 and notice of arrival was given to the consignee who was listed on the bill of lading as the party to be notified when the container arrived at the destination port (Pl.'s 56.1 St. at ¶ 9; Boose Decl. ¶ 16). When Container '365 was not cleared during the allowed free-time, MSC contacted UAL at some point prior to June 18, 2010 (Boose Decl. ¶ 16). MSC also contacted UAL after June 18, 2010 by email, and by Certified Mail on October 29, 2009 and February 11, 2010 (Boose Decl. ¶ 16 & Exhibit C). Container '365 remained at the port in Jordan until MSC was notified by the "local authorities," on October 5, 2011, that the container had been emptied and the contents disposed of; MSC was not informed as to the actual disposition of the cargo (Pl.'s 56.1 St. at ¶ 10; Boose Decl. ¶¶ 7, 16).

MSC's tariff governing the use of its equipment at Al Aqaba, Jordan provided for 15 days of free-time for a container the size of Container '365, followed by demurrage at a rate of $10 per day for the first 10 days and $20 for each day thereafter (Pl.'s 56.1 St. at ¶ 11, citing Boose Decl. ¶ 17 & Exhibit D). As a result of UAL's failure to return Container '365 to MSC during the allowed free-time, MSC seeks $14,340 in demurrage charges,*fn2 $50 for a "MSC administrative fee," $190 for "customs inspection," and $250 for "trucking/devanning"*fn3 (Pl.'s 56.1 St. at ¶ 12; Boose Decl. ¶ 17 & Exhibit D).

C. Shipment to Kenya

MSC also carried a 40-foot high-cubed shipping container bearing a registration number GSTU9751230 ("Container '230"), pursuant to bill of lading number MSCULB483885, from Baltimore, Maryland to Mombasa, Kenya, on September 15, 2009 (Pl.'s 56.1 St. at ¶ 6, citing Boose Decl. ¶¶ 18-19; Exhibit E to Boose Decl.). UAL is listed as the shipper on the bill of lading (Pl.'s 56.1 St. at ¶ 7, citing Exhibit E to Boose Decl.).

Container '230 was discharged in Kenya on November 14, 2009 and notice of arrival was given to the consignee who was listed on the bill of lading as the party to be notified when the container arrived at the destination port (Boose Decl. ¶ 18). When Container '230 was not cleared during the allowed free-time, MSC contacted UAL at some point prior to June 18, 2010 (Boose Decl. ¶ 18). MSC also contacted UAL after June 18, 2010 by email, and by Certified Mail on January 11, 2010 and February 12, 2010 (Boose Decl. ¶ 18 & ...


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