Opinion
99 C 8348
June 15, 2000
MEMORANDUM OPINION
This matter comes before the Court on Plaintiffs motion for summary judgment. For the reasons set forth below, the Court denies Plaintiffs motion.
BACKGROUND
Plaintiff Gerling-Konzern ("Gerling-Konzern") filed this action against Defendants Expeditors International Ocean ("EIO"), Expeditors International Italia, SRL ("Expeditors"), and Shipco Transport, Inc. ("Shipco") based on breach of contract cognizable in admiralty as a result of non-delivery of goods shipped in foreign commerce on a vessel. Gerling-Konzern is a German corporation in the business of insuring cargos carried on vessels. EIO is a foreign corporation in the business of operating as a non-vessel owning common carrier and in the business of consolidating less than container load shipments and carrying them under its own bill of lading. Expeditors is also a foreign corporation and acted as a forwarding agent for EIO in the transaction at issue. Shipco is a corporation with its principal place of business in Bensenville, Illinois, engaged in the business of devanning containers of imported goods and delivering the goods to their respective consignees.
After Gerling-Konzern filed its complaint, EIO and Expeditors filed a third-party complaint against Combimar Agemar SRL Services ("Combimar") and Medliners. Combimar is foreign corporation that operates as a warehouseman and freight forwarder, and Medliners is a foreign corporation alleged to be an affiliate of Combimar engaged in the business of operating as a non-vessel owning common carrier.
In December 1998, Expeditors allegedly received three shipments of goods at Verona, Italy for delivery to Spiegel, Inc. in Chicago, Illinois. EIO issued three bills of lading for these three shipments ("EIO's Bills of Lading"). Allegedly acting on behalf of the shipper, EIO retained Combimar and Medliners to consolidate and pack the three shipment of goods at issue (the "Goods") into a single ocean container in preparation for intermodal transportation from Italy to Chicago, Illinois. Plaintiff and Defendants EIO and Expeditors agree that in December 1998, the Goods were delivered in good order, proper number and condition to the sole care, custody and control of Combimar's and Medliners' warehouse in Genoa, Italy. Plaintiff and Defendants EIO and Expeditors also agree that Combimar and Medliners failed to load all the Goods into container MUU4438279 (the "Container") before affixing seal number 0000843 (the "Seal") to the Container. Medliners issued Bill of Lading No. 12/60867/98/08 (the "Medliners Bill of Lading") for all the Goods even though all the Goods had not been loaded into the Container.
The MN CANMAR CONQUEST cried the Container from Genoa, Italy to Montreal, Canada, arriving on or about December 24, 1999. C.P. Rail Systems then carried the Container from Montreal to Chicago, Illinois and delivered it to Shipco, an alleged agent of Medliners and/or Combimar, to be unloaded and delivered to the consignee, Spiegel, Inc. When Shipco broke the intact Seal on the Container, it allegedly discovered that 50 cartons of the Goods were missing. As a result, Plaintiff Gerling-Konzern, as subrogated cargo underwriters of Spiegel, Inc., filed the instant suit.
Plaintiff now moves for summary judgment against EIO, arguing that EIO as the carrier is liable for the missing goods because of the obligations arising under a bill of lading.
LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in a light most favorable to the nonmoving party, reveals 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. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing that no genuine issue of material fact exists.See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2458, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the nonmovant bears the burden of proof at trial. See id. The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits. The nonmovant must go beyond the pleadings and support its contentions with proper documentary evidence.See id.
The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. "In such a situation there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." See id. at 323. It is with these principles in mind that the Court evaluates Plaintiffs motion.
DISCUSSION
Plaintiff Gerling-Konzern moves for summary judgment, arguing that EIO's Bills of Lading were issued as a carrier and make EIO liable for the Goods. According to Plaintiff, it is irrelevant that EIO retained subcontractors to load the Container since the shipper's only contract for carriage was with EIO. EIO, on the other hand, contends that because EIO's Bills of Lading specifically provide that it was not acting as a carrier during the period before or after ocean transport, it is not liable for any loss that occurred outside of the ocean transport. Because Plaintiff has not submitted sufficient facts demonstrating that EIO is liable for the loss that occurred outside its ocean carriage, the Court denies Plaintiff's motion for summary judgment.
Plaintiff essentially argues that EIO was acting as the carrier when Combimar or Medliners received the Goods and packed the Container, and thus, Plaintiff reasons that EIO is liable for any loss that occurred during that time. Plaintiff asserts that EIO's Bills of Lading were through bills of lading on international multimodal shipments. A through bill of lading is a bill of lading "whereby the carrier agrees to transport the goods from the point of delivery to a designated point of destination, although such transportation extends over the line of a connecting carrier." Tempel Steel Corp. v. Landstar Inway, Inc., No. 98 C 6839, 1999 WL 519412, at *4 (N.D. Ill. July 9, 1999), quoting 13 Am.Jur.2d Carriers § 265 (1964); Capitol Converting Equipment, Inc. v. LEP Transport. Inc., 965 F.2d 391, 394 (7th Cir. 1992). Whether a bill of lading constitutes a through bill of lading is predominantly a question of fact. See Capitol Converting Equipment, 965 F.2d at 394. Presently, the uncontested facts fail to provide sufficient details which allow the Court to determine the nature of EIO's Bills of Lading.
Plaintiff argues that EIO's Bills of Lading are through Bills of Lading because they govern the entire transport of the goods. In support, Plaintiff points to EIO's Bills of Lading, which list the "Place of Receipt" as Verona, Italy and the "Place of Delivery" as Chicago, Illinois. Plaintiff asserts that if EIO had only intended to be responsible for the ocean carriage of the Goods, it would have issued port-to-port bills of lading that would have had blanks for the "Place of Receipt" and the "Place of delivery," thus leaving only the ocean portion of the transportation and the spaces for "Port of Loading" as Genoa and the "Port of Discharge" as Montreal. Moreover, Plaintiff points out that two of EIO's Bills of Lading were issued on December 15, 1999, four days before Medliners issued its Bill of Lading on December 19, 1999. Thus, Plaintiff seems to suggest that EIO's Bills of Lading begin to govern from a time preceding the issuance of Medliners' Bill of Lading. In addition, Plaintiff submits three bills of the manufacturers of the three shipments of the Goods. Two of these bills specifically list the shipper of the Goods as EIO, suggesting that EIO is responsible for the entire transport of the Goods.
EIO, however, argues that it did not "receive" the Goods as a carrier in Verona even tough the space for "Place of Receipt" indicates Verona. Instead, EIO claims that it issued its Bills of Lading in Genoa, the Port of Loading, and thus it acted as a carrier only during the ocean carriage beginning in Genoa. in support, EIO points to EIO's Bills of Lading which have printed above the signature line, "Dated at Port of Loading shown above For Expeditors International Ocean."
Moreover, EIO argues that its liabilities as a carrier are governed by COGSA. COGSA regulates the parties' responsibilities and liabilities relating to contracts for carriage of goods by sea (bills of lading).See Tokio Marine and Fire Insurance Co., Ltd. v. American President Lines, Ltd., No. 98 C 6687, 1999 WL 356308 (N.D. Ill. May 24, 1999). COGSA does not apply ex proprio vigore to the period before the goods are loaded onto the vessel and the period after the goods are discharged from the vessel although the application of COGSA may be extended by contract. See Seguros "Illimani" S.A. v. M/V Popi P, 929 F.2d 89, 93 (2d Cir. 1991); Miller Export Corp. v. Hellenic Lines. Ltd., 534 F. Supp. 707, 710 (S.D.N.Y. 1982); Zifferer v. Atlantic Lines, Ltd., 278 F. Supp. 736, 739 (D. P.R. 1968). Thus, EIO's liability under COGSA would only apply to the period during the ocean carriage unless extended by contract. EIO's Bills of Lading, however, do not seem to extend EIO's carrier liability under COGSA; the back of EIO's Bills of Lading provide:
EIO's responsibility for activities within the scope of its undertaking but prior or subsequent to its transportation as a common carrier by sea shall be as under an Agency Contract, in which EIO shall be liable to the Shipper only as its agent hereunder and shall not be liable for the acts of any carrier, competently selected, or for any loss, damage, or delay to or misdelivery of the Goods. . . . The Carrier shall not be liable in any capacity whatsoever for any delay, nondelivery or misdelivery, or loss or damage to the Goods occurring while the Goods are not in the actual custody of the Carrier.
Thus, it seems that whatever liability EIO may have under COGSA as a carrier would only arise during the period of ocean transport. Nevertheless, Plaintiff argues that EIO's Bills of Lading demonstrate that EIO was liable for the loss of the Goods because the Goods were transported under EIO's through Bills of Lading.
Given these facts, the Court cannot determine whether EIO's Bills of Lading were through bills of lading or whether EIO was acting as a carrier only during the period of ocean carriage. It is unclear who initially received the Goods in Verona, Italy. EIO's Bills of Lading purport to be issued in Genoa, and so it is not clear that EIO received the Goods as a carrier in Verona or that EIO's Bills of Lading would cover transport beginning in Verona when they were not issued until Genoa. Moreover, it is unclear how the Goods were transported from Verona to Genoa and who transported them. These uncertainties make it difficult to determine whether EIO agreed to transport the Goods from Verona to Chicago or simply from Genoa to Montreal and whether EIO's Bills of Lading are through Bills of Lading. In addition, that EIO may have limited its liability to the ocean carriage portion of the transportation on the back of its Bills of Lading is not dispositive because the "Place of Receipt" and "Place of Delivery" boxes on the front side of EIO's Bills of Lading marked Verona and Chicago, respectively, seem to suggest that EIO's Bills of Lading may be through bills of lading, which would extend EIO's liability beyond the ocean carriage.
Because the facts are insufficient for the Court to determine EIO's liability for the loss of Goods on summary judgment, the Court denies Plaintiffs motion.
CONCLUSION
For the reasons set forth above, the Court denies Plaintiffs motion for summary judgment.