FIREMAN'S FUND INSURANCE COMPANY v. M/V "CCNI ANTARTICO"

Full title: FIREMAN'S FUND INSURANCE COMPANY, Plaintiff, v. M/V "CCNI ANTARTICO"…

Court: United States District Court, S.D. New York

Date published: Jul 31, 2002

02 Civ. 0087 (LAK) (S.D.N.Y. Jul. 31, 2002)

Opinion

02 Civ. 0087 (LAK)

July 31, 2002

ORDER

LEWIS A. KAPLAN, District Judge.

Defendants move for summary judgment dismissing this action for damages to a cargo of paper shipped from Colombia to Baltimore aboard the M/V CCNI ANTARTICO. Plaintiff has not responded to the motion. Accordingly, all of the factual assertions contained in defendants' Rule 56.1 Statement are accepted as true.

The evidence before the Court establishes that the cargo in question was received by the defendant carriers and agents thereof in a sealed container stuffed by or on behalf of the plaintiff's subrogor. Indeed, the bill of lading states on its face "Shipper Count Load Stowed and Sealed." The report of plaintiff's surveyor establishes that the damage to the cargo was the result of a shifting of the load within the container, and there is no evidence or even suggestion that there was any damage to the container. The question therefore is whether there is any basis of liability on the part of defendants for such a shifting of the load.

This question is directly answered by the bill of lading, which It provides:

"With respect to the Goods shipped in containers whether or not furnished by the Carrier, the Carrier shall not be responsible for the safe and proper packing, stuffing or stowing of Goods in containers when done by the Merchant, shipper, consolidator or others on their behalf and no responsibility shall attach to the Carrier for any loss or damage caused to the contents by shifting, overloading or improper packing, stuffing or stowing of such container."

In consequence, there is no basis for holding the defendants liable. Indeed, plaintiff has failed to come forward with any evidence that the injury to the goods occurred while the container was in the defendants' custody, which affords an independent ground upon which to base the decision. See, e.g., Bally, Inc. v. M/V Zim America, 22 F.3d 65, 69 (2d Cir. 1994) (bill of lading not prima facie evidence that goods shipped in sealed container in good condition when received by carrier); Caemint Food, Inc. v. Brasiliero, 647 F.2d 347, 351 (2d Cir. 1981) (burden of proving goods damaged while in defendants' custody on plaintiff).

For the foregoing reason, defendants' motion for summary judgment dismissing the complaint is granted.

SO ORDERED.