Opinion
Civil Action No. 03-cv-0164 (SSB).
December 14, 2004
George R. Zacharkow, Esq., MATTIONI LTD., Philadelphia, Pennsylvania, Counsel for Plaintiff Ferrostaal, Inc.
A. Robert Degen, Esq., FOX ROTHSCHILD LLP, Philadelphia, Pennsylvania, Counsel for Defendants M/V SEA PHOENIX (ex M/V EXPRESS PHOENIX) and Delaro Shipping Co., Ltd, Pacific Atlantic Corp.
Frank P. DeGiulio, Esq., PALMER BIEZUP HENDERSON, Philadelphia, Pennsylvania, Counsel for Defendant Trans Sea Transport N.V.
OPINION REGARDING THE JOINT MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS DELARO SHIPPING LTD. AND TRANS SEA TRANSPORT N.V.
Presently before the Court is the joint motion of Defendants Delaro Shipping Corp. Ltd. ("Delaro") and Trans Sea Transport N.V. ("TST"), collectively "Defendants", for partial summary judgment pursuant to Fed.R.Civ.P. 56. In this admiralty action, Plaintiff Ferrostaal, Inc. (hereinafter "Ferrostaal" or "Plaintiff") seeks compensation for damage sustained to its shipment of galvanized steel sheet and coil, collectively "the cargo". ( See, generally, Complaint.) Defendants are seeking a determination that Defendants' liability, if any, is limited to $500 per package pursuant to the United States Carriage of Goods by Sea Act, et seq, 46 U.S.C. § 1300 ("COGSA"). The Court has considered the submissions of the parties and for the following reasons shall GRANT the joint motion.
1. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that on December 15, 2003 the cargo was loaded onto the M/V SEA PHOENIX in the port of Bizerte, Tunisia. ( Id. at ¶ 14.) The factual underpinnings of the present matter are not at issue in this motion as the parties have agreed, for the purposes of this motion only, that issues of liability are not contested. (Defendants' Summ. Judg. Mot. at 2.) Instead, the parties disagree whether COGSA or the Hamburg Rules apply to this action. This determination directly impacts the amount of the potential damage award in this case.
The Hamburg Rules arise out of the United Nations Convention on the Carriage of Goods by Sea, signed in 1978. These rules were intended as a complete replacement of the Hague Rules. See Benedict on Admiralty § 22.03[1]. The United States is not a signatory member of this Convention.
The parties' positions are as follows. Defendants assert that because the shipment in this case was from a foreign port (Tunisia) to the United States (New Jersey) COGSA compulsorily applies. ( Id. at 3.) Further, Defendants contend that the Bills of Lading under which the cargo was shipped clearly provide for the application of COGSA. ( Id. at 4-5.) The General Paramount Clause in the Bills of Lading at issue in this case provides:
(a) The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of lading, dated Brussels the 25th August 1994 as enacted in the country of shipment, shall apply to this Bill of Lading. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect to shipments to which no such enactments are compulsorily applicable, the terms of the said Convention shall apply. (b) Trades Where Hague-Visby Rules Apply. In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on February 23rd 1986 — the Hague-Visby Rules — apply compulsorily, the provisions of the respective legislation shall apply to this bill of lading.
(Defendants' Ex. F.) Specifically, Defendants aver that the General Paramount Clause contained in the Bills of Lading provides for the application of the Hague-Visby Rules where the country of shipment is a signatory to that convention. (Defendants' Summ. Judg. Mot. at 5.) Where the country of shipment has not enacted the Hague-Visby Rules, the General Paramount Clause provides that the Hague Rules shall govern as enacted in the country of destination. ( Id.) As Tunisia, the country of shipment, has not enacted the Hague-Visby Rules, Defendants assert that the Hague Rules as enacted in the United States, the country of destination, apply. ( Id.) In this regard, the Bills of Lading provide for the application of COGSA. ( Id. at 8.)
In 1968, the Hague-Visby Rules, or The Brussels Protocol of Amendments to the Hague Rules, were signed in Belgium at a Diplomatic Conference. See Thomas J. Schoenbaum, Admiralty and Maritime Law, 4th Ed., § 10-13, at 637. The Hague-Visby Rules adjusted the limits for liability and stand independent from the Hague Rules. The United States is not a signatory to the Hague-Visby Rules.
The Hague Rules were the product of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading and can be found at 51 Stat. 233. The Hague Rules attempted to unify the rules governing the carriage of goods by sea, bills of lading and damage provisions. See Thomas J. Schoenbaum, Admiralty and Maritime Law, 4th Ed., § 10-13, at 636-37. The Hague Rules were incorporated into law in the United States with the enactment of COGSA in 1936. Thomas J. Schoenbaum, Admiralty and Maritime Law, 4th Ed., § 10-15, at 649. Indeed, COGSA "was lifted almost bodily from the Hague Rules of 1921." Sun Oil Co. v. M/T CARLISLE, 771 F.2d 805, 809 (3d Cir. 1985).
Conversely, Plaintiff states that the Hamburg Rules compulsorily apply because Tunisia is a signatory member of that Convention. (Pl. Opp. Mem. at 6-7.) The Hamburg Rules allow for a higher damage award than otherwise available under COGSA. Plaintiff further asserts that although the Bills of Lading do not explicitly reference the Hamburg Rules, because of the Rules' compulsory applicability and the applicability of COGSA, a conflict of laws exists. ( Id.) Plaintiff contends that this presents a false conflict, allowing both COGSA and the Hamburg Rules to be applied harmoniously; therefore, the higher liability provisions contained in the Hamburg Rules govern. ( Id.) Alternatively, should the Court determine that COGSA governs the instant matter, Plaintiff argues that the liability limitation under COGSA is unenforceable because Plaintiff was not given a fair opportunity to declare a higher liability value and pay a corresponding higher rate. ( Id. at 22.) At this point, the Court must consider: (1) Whether the Hamburg Rules or COGSA applies to the Bills of Lading; and (2) If COGSA applies, whether Plaintiff was given a fair opportunity to declare a higher value for the cargo.
Plaintiff has averred a loss of $507,892.00. Under COGSA, Plaintiff's recovery would be at most $140,000.00. However, the Hamburg Rules would allow Plaintiff the opportunity for a full recovery of its averred loss.
II. SUMMARY JUDGMENT
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the evidence contained in the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n. 2 (3d Cir. 1996); FED. R. CIV .P. 56. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Moreover, judicial consideration of summary judgment motions requires that all reasonable inferences from facts placed before the court must be drawn in favor of the non-moving party. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990).
Once the moving party has met its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To avoid summary judgment the non-moving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In other words, the non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n. 2 (quoting Celotex, 477 U.S. at 322). If the evidence presented by the non-movant is sufficient to form the basis of a fact-finder ruling in favor of the non-moving party, summary judgment is inappropriate. On the other hand, if the nonmovant's evidence on any essential element of the claims asserted is merely "colorable" or is "not significantly probative," the court must enter summary judgment in favor of the moving party. Anderson, 477 U.S. at 249-50; see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (observing that non-movant's effort to defeat summary judgment may not "rest upon mere allegations, general denials, or vague statements").
III. ANALYSIS
1. Whether COGSA, the Hamburg Rules, or Both Apply
By its own terms, COGSA applies ex proprio to this case because the shipment at issue involved a voyage from a foreign port to a port of the United States. 46 U.S.C. § 1300; Sail America Foundation v. M/V T.S. PROSPERITY, 778 F.Supp. 1282, 1285 (S.D.N.Y. 1991). The language of COGSA is clear: "This Act shall apply to all contracts for carriage of goods by sea to or from ports of the United States in foreign trade. . . . The term foreign trade means the transportation of goods between the ports of the United States and ports of foreign countries." 46 U.S.C. § 1312; Thomas J. Schoenbaum, Admiralty and Maritime Law, 4th Ed., § 10-15, at 649. Additionally, a plain reading of the Bills of Lading provide for the application of COGSA to this case. (Defendants' Ex. F.) Tunisia, the country from which the shipment originates, has not enacted the Hague Rules or the Hague-Visby Rules. See Benedict on Admiralty Doc. 1-1, p. 1-11, 1-12; Doc. 1-2, p. 1-30. Consequently, pursuant to the General Paramount Clause contained in the Bills of Lading, the Hague Rules as enacted in the country of shipment apply. ( See Def. Ex. F.) In other words, COGSA applies. See Pyropower Corp. v. M/V Alps Maru, 1993 WL 45978, * 6 (E.D.Pa. 1993) ("I conclude that the Hague rules as enacted by the United states are applicable; in other words COGSA applies to the bill of lading.").
COGSA's limitation of liability provision is as follows:
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 . . . unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. . . .
By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.
46 U.S.C. App. § 1304(5) (emphasis in original).
Plaintiff's contention that the Hamburg Rules compulsorily apply is unpersuasive. Article 23 of the Hamburg Rules provides for the application of the Rules, even where the Bills of Lading fail to specifically incorporate the Rules. However, Plaintiff does not cite and this Court is unaware of any case that applies the provisions of the Hamburg Rules over COGSA. Moreover, the United States is not a signatory to the Hamburg Rules. Although it appears that Tunisia is a signatory to the Rules, the extent of the Hamburg Rules' incorporation into Tunisian law is unclear. Plaintiff neither cites to any Tunisian statute that demonstrates the extent to which the Hamburg Rules have been adopted, nor provides the Court with any reference to Tunisian law that demonstrates the scope of the Hamburg Rules' incorporation into the Tunisian Code.
Article 23(3) of the Hamburg Rules provides that any bill of lading issued from a contracting state, such as Tunisia, "must contain a statement that the carriage is subject to the provisions of this Convention which nullify any stipulation derogating therefrom to the detriment of the shipper of the consignee". Article 23(4) further provides that the failure to explicitly incorporate the Rules into the bill of lading does not vitiate the applicability of the Rules, stating that "the carrier must pay compensation to the extent required in order to give the claimant compensation in accordance with the provisions of this Convention for any loss of or damage to the goods as well as for any delay in delivery[.]"
As noted by Defendants in this matter, the case cited by Plaintiff does not support the application of the Hamburg Rules to this case. The case relied on by Plaintiff, Compania Sud Americana De Vapores, S.A. v. I.T.O. Corp. of Baltimore, 940 F.Supp. 855, 862, 1996 U.S. Dist. LEXIS 14954, 1997 AMC 362 (D. Md. September 18, 1996), did not provide for the application of the Hamburg rules by an American court. Instead, the district court in Compania, concluded that a Chilean court would have applied the Hamburg Rules to the action, as Chile was a signatory to the Hamburg Convention.
This Court accordingly holds, as a matter of law, that a Chilean court would have applied the Hamburg Rules in any litigation brought by cargo underwriters in Chile against CSAV. Furthermore, the Court holds that the Chilean court would have applied Article 23 of the Hamburg Rules to invalidate other provisions of the bill of lading that incorporates COGSA, or that otherwise provide for a one-year period of limitations for suites against the carrier. Compania, 940 F.Supp. at 862.
The Court's research confirms that Tunisia is a signatory to the Hamburg Rules. Defendants admit as much in paragraph 12 of its Response to Plaintiff's Supplemental Rule 56.1 Statement of Undisputed Facts.
The Third Circuit has stated that "[i]n general, foreign law is treated as a fact that must be proven by the parties." Abdille v. Ashcroft, 242 F.3d 477, 490, n. 10 (3d Cir. 2001) (citing Black Diamond Steamship Corp. v. Robert Stewart Sons, 336 U.S. 386, 397, 69 S.Ct. 622, 93 L.Ed. 754 (1949) ("[T]he Court has adhered to the general principle that foreign law is to be proved as a fact."); Intercontinental Trading Co., Inc. v. M/V Zenit Sun, 684 F.Supp. 861, 864 (E.D.Pa. 1988) ("No proof having been presented at trial as to Chilean law, the court cannot take judicial notice of the law of Chile. . . ."). Yet "federal courts have discretionary authority to judicially notice the laws of foreign countries pursuant to the fact-finding procedure contained in Fed.R.Civ.Pro. 44.1[.]" (citing Sidali v. INS, 107 F.3d 191, 197 n. 9 (3d Cir. 1997)). F.R.C.P. 44.1 provides:
A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.
Plaintiff has not supported its assertion that Tunisian law provides for the full application of the Hamburg Rules. It has not provided any affidavits, expert reports, or excerpts from Tunisian statutes that indicate the extent to which the Hamburg Rules apply in that country. "Statutes, administrative material, and judicial decisions can be established most easily by introducing a copy of the applicable provisions or court reports supported by expert testimony about their meaning." WRIGHT AND MILLER FEDERAL PRACTICE AND PROCEDURE § 2444 (p. 645). Although judges are free to accept secondary sources and accord whatever probative value the court thinks the materials deserve, id., the Court finds that neither Plaintiff's bare contention nor the copy of the Hamburg Rules Plaintiff provided in its generic form are sufficient to create a genuine issue or delineate the scope of the Hamburg Rules' incorporation into the Tunisian code.
Moreover, the Hamburg Rules provide that "every bill of lading subject to the Rules must expressly state that it is subject to the provisions of this Convention which nullify any stipulation derogating therefrom to the detriment of the shipper or the consignee." Hamburg Rules, Art. 23 §§ 2-3. The fact that this clause was absent from the Bills of Lading and that Plaintiff did not object to the absence of this language indicates to the Court an intent to contract around the Hamburg Rules. Although Plaintiff complains that the absence of this phraseology creates an ambiguity in the contract, Plaintiff offers no evidence that it objected to the form of the contract when it entered into it or evidence that it believed that the Hamburg Rules applied despite the language contained in the General Paramount Clause. Contrary to Plaintiff's assertion, this does not create an ambiguity in the Bills of Lading. The Court will not accord Plaintiff's contention that the Hamburg Rules compulsorily apply any weight.
The Court finds that the General Paramount Clause in the Bills of Lading is not ambiguous and calls for the application of COGSA. In so ruling the Court rejects Plaintiff's hyper-technical analysis of the words "similar" and "such", and rejects Plaintiff's interpretation of the General Paramount Clause as providing for alternative regimes to govern the Bills of Lading. (Pl.'s Opp. Mem. at 21-22.) Plaintiff is familiar with the shipping industry, and as an American corporation, should have been aware that the Bills of Lading provide for the application of COGSA in this case. See, e.g., Lukenbach S.S. Co., Inc. v. American Mills Co., 24 F.2d 704, 705 (5th Cir. 1928) (shipper "is presumed to know the law, and therefore must have known the terms and conditions on which goods were received and would be transported would be contained in a bill of lading to be issued later."). If this liability scheme was unacceptable to Plaintiff, Plaintiff should not have entered into the contract. Having determined that COGSA governs the damages in this case, the Court now turns to whether Plaintiff was provided a fair opportunity to declare a higher value.
Plaintiff is a "business entity duly organized and existing under the laws of the State of Delaware, with an address and principal place of business [in Houston, Texas]. Ferrostaal is a shipper and/or exporter and/or importer of steel and steel products, inter alia." (Complaint at ¶ 2.) Plaintiff should know that the application of the Hague Rules in the United States means that COGSA applies.
2. Whether Plaintiff Was Provided with A Fair Opportunity
"The Supreme Court has stated that a carrier cannot limit its liability under COGSA unless the shipper is afforded a fair opportunity to declare a higher value and pay a correspondingly higher rate." Pyropower, 1993 AMC at 1574. "Fair opportunity" is not defined within the contents of COGSA and, unlike many circuits, the Third Circuit has not set forth a test to determine whether a party was provided with a fair opportunity to declare a higher limit. The Second Circuit, however, has set forth a particularly helpful balancing test that the Court will employ in its analysis. Under Second Circuit case law, in determining whether a carrier provided a shipper with a "fair opportunity", a carrier must first make a prima facie showing that it gave notice of the liability limitation to the shipper and that the shipper had a chance to avoid that limitation by declaring a higher value. See Royal Ins. Co. v. M/V ACX RUBY, 1998 WL 524899, *8 (S.D.N.Y. August 21, 1998). Where the carrier succeeds in carrying such a burden, the burden shifts to the shipper to demonstrate that a fair opportunity did not exist. Id.
Where the language in the Bills of Lading clearly states the COGSA liability limitation, the bills of lading themselves are presumed to constitute prima facie evidence of a "fair opportunity". See Crowley American Transport v. McAlpin, 208 F.Supp.2d 541, 544 (D.V.I. 2002) ("The bill of lading, if it clearly states the COGSA liability limitation, could constitute prima facie evidence of [Defendant's] fair opportunity to avoid the limitation."); M/V ACX RUBY, 1998 WL 524899 ( prima facie evidence of fair opportunity "is established when [notice of the liability limitation] can be gleaned from the language contained in the Bill of Lading."). Where there is no explicit reference to COGSA, or the liability limitaion, in the bill of lading, making a prima facie showing that a "fair opportunity" was provided requires more. "When the bill of lading requires the shipper to follow a `circuitous' route in order to discover what set of rules establishes the liability limitation on a shipment, the carrier fails to establish a prima facie case of fair opportunity." MacSteele Int'l USA Corp. v. M/V Ibn Adboun, 154 F.Supp.2d 826 (S.D.N.Y. 2001).
Although the Bills of Lading in this case do not explicitly mention COGSA by name, the Court finds that Defendant has made a prima facie showing that it provided a "fair opportunity". First, the Court has already found that the provisions in the General Paramount Clause contained in the Bills of Lading provides for the application of COGSA, as COGSA is the codification of the Hague Rules as adopted by the United States, the country of destination. Second, Plaintiff, as an American corporation, should have been aware that since the shipment was headed to New Jersey, COGSA applied ex proprio. Third, Plaintiff had the opportunity to declare a higher value for the cargo in the section of the Bills of Lading entitled "number and kind of packages; description of goods". Plaintiff chose not to itemize its goods or declare the value in this section or anywhere else in the contract. Fourth, Plaintiff chose to insure the cargo, which indicates to the Court that Plaintiff was aware that its recovery would be limited and may not fully compensate any potential loss. See, e.g., Travelers Indemnity Co., 26 F.3d at 900 ("a shipper who chooses to insure its cargo through an independent insurance company has made a conscious decision not to opt out of COGSA's liability limitation."); Carman Tools Abrasives Inc. v. Evergreen Lines, 871 F.2d 897, 901, n. 10 (9th Cir. 1989) ("Indeed, there is every reason to believe that the shipper [, by acquiring insurance] made a knowing and deliberate choice in foregoing the additional cost that would have been incurred in raising the liability limit[.]"). The Travelers Indemnity court explained the reasoning for this finding:
The Bills of Lading do not contain a specifically designated place for Plaintiff to declare a higher liability limit than that imposed by COGSA. The absence of a specific place in the Bills of Lading to declare a higher value is not necessarily determinative of a lack of a "fair opportunity". See Travelers Indemnity Co. v. The Vessel Sam Houston, 26 F.3d 895, 900 (9th Cir. 1994) ("a designated place for an excess value declaration is not mandatory.").
Plaintiff insured the cargo through ACE Insurance SA for the full value of each shipment. (Defendants' Exhibit A, 1-3.)
Here, [the shipper] chose to insure its cargo through Travelers. There is every reason to believe that [the shipper] made a deliberate choice to forego the additional cost that would have been incurred in raising Waterman's liability limit. Why would [the shipper] increase its costs by insuring the same cargo twice?Id. at 900. If Plaintiff truly believed that the Hamburg Rules governed this action, supplemental insurance would be unnecessary, as Plaintiff would be fully compensated for any loss. Indeed, there is evidence in the record that clearly indicates that Plaintiff was given a fair opportunity to declare a higher liability limitation and Defendants have made a prima facie showing that Plaintiff was offered a "fair opportunity" to declare a higher value for the cargo.
The Court rejects Plaintiff's assertions that the Bills of Lading are ambiguous, that the Bills of Lading do not afford Plaintiff a "fair opportunity" to declare a higher limit than that afforded by COGSA, and that the Bills of Lading in this case are circuitous. In this regard, Plaintiff reliance on the MacSteele case is misplaced, as this case is distinguishable. In MacSteele, the court stated:
In this case, it is not clear from the face of the contract of carriage that COGSA's liability limitation applies. United Arab does not dispute that neither the Charter Party nor the Bill of Lading provided a space for plaintiff to declare a higher value for the cargo. In addition, neither document specifically referred to COGSA's $500 per package limitation or the requirement that plaintiff declare a higher value for the goods in order to opt out of the limitation. COGSA was not mentioned in the Bill of Lading itself. Rather, this contract of carriage incorporated a total of three "Clauses Paramount" purporting to govern liability, all with differing provisions. The Bill of Lading incorporated the Hague Rules as adopted by the country of shipment, in this case, South Africa. The Bill of Lading also notes that if the Hague-Visby Rules apply compulsorily, then that legislation, rather than the Hague Rules or COGSA, will be deemed incorporated in the Bill of Lading. Finally, the Charter Party itself, in what appear to be either conflicting paragraphs or an attempt to contract out of COGSA's liability limitation, incorporated both the Hague Rules as adopted by the country of shipment and COGSA. Because it is not clear from the face of the Bill of Lading and the Charter Party, examined in conjunction, that COGSA governs this shipment, this court finds that plaintiff did not have a fair opportunity to opt out of COGSA's liability limitation.154 F.Supp.2d at 833-834. Additionally, the MacSteele court cited several cases that supported its conclusion that a bill of lading that requires investigation as to the governing liability limitations does not provide a shipper with a fair opportunity. See M/V ACX Ruby, 1998 WL 524899 at * 4 (holding no fair opportunity where "a shipper who wanted to learn about his rights under the . . . Bill of Lading would have to investigate which set of rules, if either, had been adopted in the country of shipment and then determine how to avoid whatever liability limitations those rules imposed."); St. Paul Marine Ins. Co. v. Thypin Steel Co., Inc., 1999 WL 639718 at *7 (S.D.N.Y. 1999) ("[O]ne cannot `glean' anything meaningful from a contingent reference to rules in one of two countries, with no clue presented as to how one can determine which country's rules apply, let alone what those rules are.").
Unlike the bill of lading in MacSteele, there are no ambiguities in the Bills of Lading in this case. The Bills of Lading used in this case are commonly used in the shipping industry. See Accai Speciali Terni U.S.A., Inc. v. M/V BERANE, 182 F.Supp.2d 503, 507 (D.Md. 2002) ("In the international shipping it is not uncommon for carriers to use Bills of Lading with a hierarchical paramount clause like the one used [here]. This allows the carrier to use the same Bill of Lading form for all of its contracts, rather than having to work up a special bill for each individual shipment.") Additionally, unlike MacSteele, there is only one General Paramount Clause and a plain reading of that clause provides for the application of only one regime: the Hague Rules as enacted in the country of shipment, thus COGSA. Furthermore, arriving at the conclusion that COGSA applies, despite the lack of an explicit reference, does not require much investigation. Rather, in this case, it should have been obvious to Plaintiff that COGSA applies, as Plaintiff is incorporated in and has its principal place of business in the United States. ( See Complaint at ¶ 2.)
The clause paramount in the bill of lading reference in BERANE is as follows:
The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading . . . as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments to which no such enactments are compulsorily applicable, the terms of the said Convention shall apply.
Trades where Hague-Visby Rules apply.
In trades where . . . the Hague-Visby Rules apply compulsorily, the provisions of the respective legislation shall be considered incorporated in this Bill of Lading. The Carrier takes all reservations possible under such applicable legislation, relating to the period before loading and after discharging and while the goods are in charge of another Carrier, and to deck cargo. . . .
The bill of lading also contains Additional Clause B, entitled "U.S. Trade [and] Period of Responsibility," which states:
In case the Contract evidenced by this Bill of Lading is subject to the U.S. Carriage of Goods by Sea Act, then the provisions stated in said Act shall govern before loading and after discharge and throughout the entire time the goods are in the Carrier's custody.BERANE, 182 F.Supp.2d at 505.
Moreover, there is no suggestion that the parties in this case were not of equal bargaining power or that Plaintiff is an unsophisticated party. Rather, the evidence points to a contrary conclusion. Plaintiff claims that the Hamburg Rules apply as Tunisia is a signatory member of that convention. Such an assertion implies that Plaintiff was aware that Tunisia had not enacted the Hague Rules or the Hague-Visby Rules. Plaintiff has not put forth any evidence to rebut Defendants' prima facie showing that it provided a "fair opportunity" nor has Plaintiff demonstrated a genuine issue of material fact as to whether it was denied a fair opportunity to declare a higher liability limitation.
In so far as Plaintiff thought that the Hamburg Rules compulsorily applied, the Court previously addressed this argument. Moreover, there is no mention, either explicit or implicit, of the Hamburg Rules in the Bills of Lading. Further, the fact that Plaintiff insured the cargo is evidence that it did believe that the cargo was covered in full, as would be the case under the Hamburg Rules.
IV. CONCLUSION
The terms of the General Paramount Clause contained in the Bills of Lading provide for the application of COGSA. Plaintiff has not demonstrated the scope of the Hamburg Rules' incorporation into Tunisian law, failing to prove that the Hamburg Rules compulsorily apply. Defendants have made a prima facie showing that Plaintiff had a "fair opportunity" to declare a higher value for the cargo and Plaintiff has failed to rebut this showing. Accordingly, partial summary judgment will be entered in favor of Defendants and the liability limitation as set forth in COGSA shall apply to this case. An appropriate order will follow.