Opinion
99 Civ. 9461 (LAK)
March 6, 2000
ORDER
Plaintiff brought this cargo case against Direct Container Line, Inc. ("DCL") and Orient Overseas Container Line, Inc., s/h/a Orient Overseas Container Line, Ltd. ("OOCL"). DCL cross-claimed against OOCL for indemnification.
In December 1999, OOCL moved to dismiss both the complaint and the cross-claim. On February 9, 2000, plaintiff filed a notice of discontinuance of its claim against OOCL. The Court endorsed an order denying OOCL's motion to dismiss as moot in the mistaken belief that the motion was addressed only to the complaint whereas the notice of discontinuance did not moot the motion insofar as it was addressed to the cross-claim. Accordingly, the endorsed order of February 9, 2000 is vacated insofar as it denied OOCL's motion to dismiss DCL's cross-claim against it.
Turning now to that motion, the Court notes at the outset that the parties have submitted a number of matters outside the pleadings. The Court, however, declines to convert the motion into one for summary judgment and decides it solely on the pleadings.
The motion is based exclusively on the propositions that the cross-claim is governed solely by the one year statute of limitations contained in the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. App. § 1300 et seq., and that the cross-claim is untimely thereunder. It bases this contention on the complaint's allegation that the container that should have borne the cargo at issue arrived in Tokyo on or about September 7, 1998 and the legal premise that the running of the period of limitations "begins to elapse on the date of delivery, or the date when the goods should have been delivered." (OOCL Mem. 4)
To begin with, it is doubtful that COGSA governs the timeliness of DCL's cross-claim. The claim is for indemnity, and indemnification claims arguably are not governed by this statute. E.g., Francosteel Corp. v. S. S. Tien Cheung, 375 F. Supp. 794, 795 (S.D.N.Y. 1973). If it does not, the cross-claim unquestionably is not barred because a claim for indemnification does not accrue until the indemnitee pays on the primary claim. Id. The Court, however, need not decide that issue now, as the claim has not been shown to be barred even if COGSA applies.
The relevant provision of COGSA states in material part:
"In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." 46 U.S.C. App. § 1303(6).
First, OOCL's assumption that the date of delivery of the container in Tokyo was "the date when the goods should have been delivered" is too facile. The date when the goods should have been delivered is to be determined from the bill of lading. Western Gear Corp. v. State Marine Lines, Inc., 362 F.2d 328, 330 (9th Cir. 1966). But the pleadings do not attach the bill of lading. Accordingly, it is impossible to tell from the pleadings when the goods should have been delivered.
Second, even if the container that should have been stuffed with the goods at issue in fact arrived in Tokyo on September 7, 1998, the cross-claim does not allege that the missing goods were not in fact delivered subsequently. Indeed, that appears to have been the case. On that assumption, the issue would be whether the statute should be construed to run in such a case from the earlier of the date when delivery was due or the date of actual delivery under the same bill of lading. One commentator suggests that the clause of the statute pertaining to the date of anticipated delivery applies only where the shipment is lost altogether and that the statute begins to run only upon actual delivery in all other cases. Thomas J. Schoenbaum, Admiralty and Maritime Law § 10-41, at 166 (2d ed. 1994). As OOCL has not shown that the goods were actually delivered more than one year before the interposition of the cross-claim, the Court cannot now conclude that the cross-claim is untimely.
For the foregoing reasons, OOCL's motion to dismiss the cross-claim by DCL as untimely is denied in all respects.
SO ORDERED.