Opinion
68 Civ. 3102.
May 14, 1970.
Hill, Rivkins, Warburton, McGowan Carey, New York City, for plaintiffs, J. Edwin Carey, New York City, of counsel.
Browne, Hyde Dickerson, New York City, for defendant, John H. Reilly, Jr., New York City, of counsel.
OPINION
This is a motion by plaintiffs for summary judgment pursuant to Rule 56, Fed.R.Civ.P.
It appears that plaintiffs shipped two containers containing drums of teflon from the Port of New York to northern Europe on board the S.S. MORMACVEGA under a clean bill of lading which gave no notice that the containers were to be carried as deck cargo. The containers were stowed on deck and washed overboard in rough weather during the transatlantic voyage.
Plaintiffs claim that defendant is liable for full damages without limitation as a matter of law, because the carrier deviated from the contract of carriage by stowing the cargo on deck.
Defendant contends that the case is not ripe for summary judgment because, among other issues, there is a clear issue of fact as to the existence of an established custom in the Port of New York of carrying containerized cargo on the weather deck of container ships regardless of a clean bill of lading.
It seems clear enough that in the case of general cargo ships, deck-stowage under a clean bill of lading which results in a loss of, or damage to, the cargo is an impermissible and unauthorized deviation from the contract of carriage rendering the carrier liable for full damages.
Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, 422 F.2d 7, 2d Cir., 1969. See S.S. Willdomino v. Citro Chem. Co., 272 U.S. 718, 47 S.Ct. 261, 71 L.Ed. 491 (1927); St. John's N.F. Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio De Janeiro, 263 U.S. 119, 44 S.Ct. 30, 68 L.Ed. 201 (1923); Jones v. The Flying Clipper, 116 F. Supp. 386 (S.D.N.Y. 1953).
Whether this is so in the case of a container ship is not so clear, but the Encyclopaedia Brittanica case, upon which plaintiffs primarily rely, implies that a container ship "specially outfitted safely to stow containers on deck" may not be liable for deviation despite a clean bill of lading importing underdeck stowage when cargo shipped in containers is stowed on deck and damaged or lost as a result, if there is an established custom in the port permitting such ships to stow on deck. If there is such a custom for container ships, we think the bill of lading will be presumed to have been issued subject to it, and the shipper may not claim liability on the part of the carrier for losses resulting from on-deck stowage.
Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, supra, 422 F.2d at n. 12.
Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, supra, 422 F.2d 7, 1969 A.M.C. at 1755. See St. John's N.F Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio De Janeiro, supra; The Delaware, 81 U.S. [14 Wall.] 579, 605, 20 L.Ed. 779 (1871).
There is a conflict in the affidavits as to whether the S.S. MORMACVEGA is a container ship specially outfitted safely to stow containers on deck and as to the existence of the alleged custom. It appears that there are also issues as to whether the containers involved were packages as specified in Section 4(5) of the Carriage of Goods By Sea Act and whether there was an express agreement in the instant case for underdeck stowage of the containers in question.
46 U.S.C. § 1304(5).
Plainly, these are issues of fact which cannot be resolved on this motion for summary judgment but must await full development upon a plenary trial.
It is regrettable that this simple case cannot be disposed of on this motion, but without a stipulation of the underlying facts, summary judgment would rest on quicksand.
Perma Research Dev. Co. v. Singer Co., 308 F. Supp. 743 (S.D.N.Y. 1970); Boston M.R.R. v. Lehigh N.E.R.R., 188 F. Supp. 486 (S.D.N.Y. 1960), appeals dismissed per curiam, 287 F.2d 678 (2d Cir. 1961).
Accordingly, plaintiffs' motion for summary judgment is in all respects denied.