Opinion
DOCKET NO. A-2866-14T1
07-25-2016
RAFAEL VILORIO, Plaintiff-Appellant, v. SALLAUM LINES, Defendant-Respondent.
Rafael Vilorio, appellant pro se. Awad & Khoury, LLP, attorneys for respondent (Abed Awad, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-26373-13. Rafael Vilorio, appellant pro se. Awad & Khoury, LLP, attorneys for respondent (Abed Awad, on the brief). PER CURIAM
Plaintiff Rafael Antonio Vilorio appeals the Special Civil Part's December 22, 2014 dismissal of his complaint against defendant Sallaum Lines. We affirm.
I.
The following facts are drawn from the record of the December 22, 2014 hearing in the Special Civil Part and the oral opinion of Judge Sebastian P. Lombardi. In a bill of sale dated September 21, 2012, a New York company, Y & L Auto Sales, Inc. (Auto Sales), sold a 2010 Toyota RAV4 vehicle to A & A Auto Import (Auto Import), a company in Santo Domingo, Dominican Republic (DR). On September 24, 2012, Auto Sales hired TRT International, LTD (TRT) to transport the Toyota to Auto Import in the DR. TRT issued a bill of lading listing Auto Sales as the shipper and Auto Import as the consignee.
The "Clause Paramount" of TRT's bill of lading explicitly incorporated the Carriage of Goods by Sea Act ("COGSA" or "U.S. COGSA"): "All carriage under this bill of lading to or from the United States shall have the effect subject to the provisions of [COGSA], the terms of which shall be incorporated herein." This paramount clause also provided that COGSA "shall govern before the goods are loaded on and after they are discharged from the vessel . . . and throughout the entire time the goods are in the custody of [TRT]."
74 P.L. 521, 49 Stat. 1207 §§ 1-16. COGSA was originally codified at 46 U.S.C.A. §§ 1300-1315. It is now printed in the notes following 46 U.S.C.A. § 30701. We will cite to COGSA by referencing the sections of 49 Stat. 1207 as COGSA §.
In particular, TRT's bill of lading contained a "Limitation of Liability" section which incorporated the limitation of liability under COGSA:
The limitation amount when U.S. COGSA is applicable is an amount not exceeding USD
500 per package or customary freight unit, but not more than the actual value of the goods lost or damaged, unless the value (and nature) of Goods higher than this amount has been declared in writing by the shipper or consignee before receipt of the Goods by [TRT] and inserted on the face of this Bill of Lading and extra freight has been paid as required.
TRT's bill of lading listed the Toyota as one package, and provided that "each unpackaged vehicle" was a "Customary Freight Unit." The "Excess Value Declaration" was "0 USD," thus declaring the Toyota was not worth more than $500.
Finally, TRT's bill of lading provided that its agents or subcontractors "shall be deemed to be parties to the contract evidenced in this Bill of Lading" and "shall be entitled to the same rights, exemptions from liability, defenses and immunities to which [TRT] is entitled." On September 25, 2012, TRT subcontracted with defendant, an international car carrier company, to transport the Toyota to the DR.
On October 10, 2012, U.S. Customs rejected the Toyota's proof of purchase and would not release it for shipment. While this issue awaited resolution, the Toyota was held in a Customs lot at Bayonne Port.
On October 29, 2012, Superstorm Sandy struck the New Jersey coast, causing significant damage to the port area. Though the Toyota had been previously cleared by Customs, storm damage at the port delayed its shipment until December 27, 2012. When the Toyota arrived in the DR on January 5, 2013, it had significant damage and was flooded.
Plaintiff brought suit against TRT. He was awarded $500, the maximum damages allowable under COGSA.
On December 17, 2013, plaintiff filed a separate complaint against defendant in the Special Civil Part. Plaintiff alleged simply that "I gave [defendant] my Toyota 2010 RAV4 to ship to Santo Domingo D.R. and I received my car in DR damaged [and] flooded." Plaintiff sought $15,000 in damages.
On December 22, 2014, Judge Lombardi presided over a one-day trial where he received documentary evidence and heard testimony from plaintiff and a manager for defendant. The trial court found that plaintiff lacked standing because plaintiff failed to prove that: he was the title owner of the Toyota; that he paid for the Toyota; or that he was the shipper of the Toyota. The court further found that even if plaintiff was the owner and shipper of the Toyota, he chose to have it shipped without insurance and subject to a bill of lading limiting liability to $500, which he had already collected from TRT. Accordingly, the court found no cause of action against defendant and dismissed with prejudice. Plaintiff appeals.
II.
We must hew to our standard of review. "'Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review.'" D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (citation omitted). We do "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they . . . offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). However, "[c]onclusions of law are subjected to . . . de novo review on appeal." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015).
Based on our standard of review, we affirm substantially for the reasons set forth in Judge Lombardi's December 22, 2014 oral opinion. We add the following.
III.
Plaintiff's appellate brief fails to allege any particular errors by the trial court, make any specific arguments, or offer any supporting legal authority. In any event, plaintiff shows no basis to disturb the trial court's ruling.
First, plaintiff failed to prove at trial that he owned the Toyota. The vehicle title, bill of sale, and the bill of lading with TRT did not list plaintiff as the owner or shipper of the Toyota. Indeed, in his testimony plaintiff admitted that his name was not on the title.
Plaintiff includes in his appellate appendix three receipts from Auto Sales indicating that "Antonio Vilorio" paid a total of $16,325 for the Toyota. However, there is no indication that these receipts were offered at trial, nor are they otherwise referenced in the trial court record or in plaintiff's appellate brief. The record before us should consist only of documents that were properly before the trial court. R. 2:5-4(a). "[A]ppellate review is confined to the record made in the trial court, and appellate courts will not consider evidence submitted on appeal that was not in the record before the trial court." Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div.) (citations omitted), certif. denied, 149 N.J. 409 (1997).
Thus, as noted by the trial court, plaintiff was not in privity with defendant, so he has no valid contract claim. "'The obligation of contracts is, in general, limited to the parties making them.'" Aronsohn v. Mandara, 98 N.J. 92, 101 (1984) (citation omitted). "[A] person not a party to a contract, nor in privity thereto, cannot sue in respect to a breach of a duty arising out of the contract." Bacak v. Hogya, 4 N.J. 417, 422 (1950).
Second, even if plaintiff had proven he was the owner and shipper of the Toyota, the trial court did not err in finding that he failed to establish a right to damages from defendant. Liability was limited by TRT's bill of lading and by COGSA to the $500 which plaintiff had already collected from TRT.
"A bill of lading records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage." Norfolk S. Ry. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 18-19, 125 S. Ct. 385, 390, 160 L. Ed. 2d 283, 291 (2004) [hereinafter "Kirby"]. The bill of lading "constitutes the contract for carriage and delivery of goods" and "continues to govern the rights and obligations of the parties until delivery." M.C. Mach. Sys. v. Maher Terminals, 164 N.J. 192, 198 n.2 (2000) [hereinafter "Maher"]. "So long as COGSA . . . applies to the bill of lading, the claim against the carrier or its agent is governed by federal maritime law." Id. at 204-05. "This approach promotes uniformity in the law's treatment of such claims." Id. at 205; see Kirby, supra, 543 U.S. at 18, 125 S. Ct. at 390, 160 L. Ed. 2d at 290.
As detailed above, the bill of lading here clearly provided that if the Toyota was damaged during the time it was in the custody of TRT, including before being loaded on the ship, the liability of TRT and its subcontractor, defendant, was limited to $500. If Auto Sales, Auto Import, or plaintiff believed the Toyota was worth more than $500, they could have declared that the Toyota was worth more than $500 and paid extra freight charges, or they could have purchased liability insurance. Instead, as the bill of lading showed and as plaintiff admitted, the value of the Toyota was declared to be not in excess of $500, thereby avoiding additional freight charges. Plaintiff also admittedly declined to purchase liability insurance covering the Toyota. Because the liability of TRT and defendant was limited to the contractually agreed upon $500, which plaintiff collected from TRT in a separate suit, defendant had no additional liability.
"[C]ontracts for carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties." Kirby, supra, 543 U.S. at 31, 125 S. Ct. at 397, 160 L. Ed. 2d at 299. Here, the plain language and intent of the bill of lading limits the liability of TRT and defendant to $500.
This result under the bill of lading accords with the result under COGSA, which the bill of lading expressly incorporated. COGSA provides that "under every contract of carriage of goods by sea, the carrier . . . shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth." COGSA § 2. Among a carrier's rights and immunities is COGSA § 4(5), which provides:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package . . . [or] per customary freight unit, . . . unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.
The purpose of this provision is to "limit liability of common carriers for damage to cargo where the value of the cargo is not known to the carrier." Gen. Motors Corp. v. Moore-McCormack Lines, Inc., 451 F.2d 24, 26 (2d Cir. 1971). By contrast, when a shipper declares a value of its cargo is in excess of $500, it is "alerting the carrier of its potential liability and allowing it to charge extra freight, if appropriate." Ibid.
By its terms, COGSA governs bills of lading for the carriage of goods during the so-called tackle-to-tackle period, "the time when the goods are loaded on to the time when they are discharged from the ship." Kirby, supra, 543 U.S. at 29, 125 S. Ct. at 396, 160 L. Ed. 2d at 298 (quoting COGSA § 1(e)); Maher, supra, 164 N.J. at 199. However, as here, the parties in the bill of lading may agree "to extend COGSA's coverage to the period before loading or after unloading of the goods." Maher, supra, 164 N.J. at 206; see COGSA § 7; see also Greenpack of P.R., Inc. v. Am. President Lines, 684 F.3d 20, 24 (1st Cir. 2012). It was thus appropriate for the bill of lading to extend COGSA's liability limit "to cover 'the entire period in which [the goods] would be under [a carrier's] responsibility.'" Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 96, 130 S. Ct. 2433, 177 L. Ed. 2d 424 (2010) (alteration in original) (quoting Kirby, supra, 543 U.S. at 29, 125 S. Ct. at 396, 160 L. Ed. 2d 298). Thus, plaintiff's claim against defendant fails not only under the bill of lading but also under COGSA.
IV.
Plaintiff nevertheless argues that the trial court erred by not finding defendant liable for damage to his vehicle. Even if plaintiff's complaint could be read as "'sounding in tort, the complaint essentially arises in contract rather than tort and is governed by the contract.'" Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 309 (2002) (citation omitted). Our Supreme Court has held that negligent performance allegations are merely a form of breach of contract action. Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 116 N.J. 517, 540 (1989). Plaintiff's claim arose out of a commercial shipping transaction that was governed by a bill of lading. Thus, his complaint was properly heard as a contract, not tort, action.
For all these reasons, the trial court did not err in finding that defendant was not liable for the vehicle's damage, and in dismissing plaintiff's complaint.
Thus, we need not reach the trial court's other reasons for dismissal, including that defendant was not liable because Superstorm Sandy caused the damage while the Toyota was in the Customs lot, and that plaintiff presented no expert testimony on the amount of damage. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION