United States District Court, S.D. New York
For Engineered Arresting Systems Corporation, Plaintiff: James Aloysius Saville, Jr., Lauren Elizabeth Komsa, Hill Rivkins LLP, NY, NY.
For M/V Saudi Houfuf, her engines, boilers and tackle in rem, National Shipping Company of Saudi Arabia, Defendants: James Lawrence Ross, Freehill, Hogan & Mahar, LLP, New York, NY.
MEMORANDUM AND ORDER
ANALISA TORRES, United States District Judge.
In this admiralty and maritime action, Defendant, National Shipping Company of Saudi Arabia (" NSCSA" ) seeks partial summary judgment holding that its potential liability to Plaintiff, Engineered Arresting Systems Corporation (" EAS" ), is limited to $3,000. For the following reasons, Defendant's motion is GRANTED.
This action arises out of damage to a shipment of six trailers containing Portarrest P-IV Mobile Aircraft Arresting Systems (the " Shipment" ), which were sold by EAS to the Indian government and transported by NSCSA. EAS retained OPT Project Transport, Inc. (" OPT" ), a licensed freight forwarder, to arrange the ocean transport of the Shipment from Baltimore, Maryland to Mumbai, India. Def. 56.1 ¶ ¶ 4-5, ECF No. 19; Pl. 56.1 ¶ ¶ 4-5, ECF No. 28. OPT, acting on EAS's behalf, entered into a bill of lading contract of carriage (the " Bill of Lading" ) with NSCSA for the ocean transportation of the Shipment aboard the SAUDI HOFUF. Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6; see also Def. 56.1 Ex. 3 (Bill of Lading), ECF No. 19-6.
The Bill of Lading states that the contract is subject to the Carriage of Goods by Sea Act of 1936 (" COGSA" ), reprinted in 46 U.S.C. § 30701 note (previously codified at 46 U.S.C. app. § § 1300 et seq.). Def. 56.1 Ex. 3 (Bill of Lading) ¶ 2(b). The Bill of Lading includes a package limitation clause stating:
IN TRADES TO OR FROM THE UNITED STATES the Carrier's liability for any loss or damage of Goods exceeding in value the equivalent of $500 lawful money of the United States per package, or in the case of Goods not shipped in packages, per customary freight unit (CFU), shall be limited to COGSA's $500 per Package or per CFU. If the Goods are unpackaged unless the nature and value of such Goods have been declared by the Shipper before shipment, inserted in the Bill of Lading in the overleaf, and an ad valorem freight rate paid to the Carrier. In such instances, the Carrier's liability shall not exceed the declared value and any partial loss or damage of Goods shall be pro rata on the basis of such declared value.
Id. ¶ 9(a). The Bill of Lading also contains a provision regarding the stowage of cargo, which, in relevant part, provides:
Goods whether stowed in a Container or not may be carried on or under deck without notice to the Merchant. Such Goods (other than livestock) whether carried on deck or under deck shall participate in general average and shall be deemed to be within the definition of Goods for the purposes of the Hague Rules or the Hague Visby Rules or COGSA, as the case may be.
Id. ¶ 10(b). At booking, NSCSA's agent did not discuss on or below-deck stowage with OPT, nor did OPT request that NSCSA stow the Shipment below deck. Def. 56.1. ¶ ¶ 11, 17; Pl. 56.1. ¶ ¶ 11, 17. OPT had booked prior shipments with NSCSA over a period of seven years. Def. 56.1. ¶ 16; Pl. 56.1. ¶ 16.
During the voyage from Baltimore to Mumbai, which took place in July 2011, the Shipment was stowed on Deck 4 of the SAUDI HOFUF, approximately forty to forty-five feet above sea level. Def. 56.1 ¶ ¶ 3, 30; Pl. 56.1 ¶ ¶ 3, 30. The SAUDI HOFUF is a RoRo vessel specially designed to stow and secure RoRo cargoes such as vehicles, automobiles, RoRo containers, ...