Opinion
CIVIL ACTION NO. 99-0770-CB-S
October 17, 2000
OPINION and ORDER
IN PERSONAM and IN REM
This matter is before the Court on motions for summary judgment filed by defendants Western Bulk Carriers (U.S.A.), Inc. ("Western Bulk"), Ugland Marine Services A.S. ("Ugland Marine"), and Lunita, Ltd. ("Lunita"). These defendants seek summary judgment both as to plaintiff's claims and as to the cross claims of defendant Kimberly-Clark Tissue Co., Inc. ("Kimberly-Clark"). At issue is whether Western Bulk, Ugland Marine and Lunita are responsible for damage to cargo owned by plaintiff Preussag International Steel Corporation ("Preussag") shipped via the M/V Lunita from Klapeida Lithuania to Mobile where it was transferred to barges owned by Kimberly-Clark and transported to Birmingport. Because neither Preussag nor Kimberly-Clark have submitted evidence to dispute the facts presented by Western Bulk, Ugland Marine and Lunita, the Court finds that the summary judgment. motions are due to be granted.
Findings of Fact
Plaintiff Preussag is seeking to recover for damage to a portion of a shipment of steel coils owned by Preussag. The damage allegedly occurred during the transport of the coils from Klapeida, Lithuania to Birmingport, Alabama. The coils were carried from Klapeida to Mobile on board the M/V Lunita and from Mobile to Birmingport on barges owned and/or operated by Kimberly-Clark. Kimberly-Clark contracted directly with Preussag to carry the coils from Mobile to Birmingport. The M/V Lunita was owned by defendant Lunita, Ltd. Ugland Marine was a technical manager for a time charterer of the vessel and Western Bulk was an agent in the United States for a time sub-charterer of the vessel. The time charterer and time sub-charterer are not parties to the case. Neither Western Bulk nor Ugland Marine signed or issued the Bills of Lading, and neither ever had possession, custody or control of the coils.
The cargo was loaded on the M/V Lunita in Klapeida. It was never in the possession of Western Bulk or Ugland Marine. The Bills of Lading issued upon loading at Klapeida were all issued and signed by Ronly Holdings Ltd. of Edgeware, Middlesex, United Kingdom, for and on behalf of the owner of the vessel. Ronley is not a party to this case. On the voyage from Klapeida to Mobile, the Lunita's cargo consisted of hot rolled steel coils and cold rolled steel coils, including approximately 493 hot rolled steel coils belonging to Preussag. Preussag had sold 123 of the hot rolled steel coils to Jemison Steel Corporation. In Mobile some of the coils were discharged to the dock and some, including the 123 coils sold to Jemison were discharged to barges supplied by Kimberly-Clark pursuant to its agreement with Preussag and carried by Kimberly-Clark up river to Birmingport.
At Birmingport the barges went to the premises of Liberty Stevedoring Company where the coils were discharged from the barges by Liberty for subsequent transport by truck to Jemison's Bessemer, Alabama plant. According to plaintiff, 47 of the Jemison coils sustained damage by way of rust after they were loaded in Klapeida and before they were delivered to Jemison in Bessemer.
The Bills of Lading issued at loading in Klapeida relating to the Preussag cargo, including the coils sold to Jemison, were all claused with remarks indicating the preloading condition of the cargo. These remarks stated: "Partly Rust Stained/Partly Rusty/Wet Before Loading/Loaded from Open Area Quay Side."
The Lunita arrived in Mobile on August 23, 1998. Between August 23 and August 26, two cargo surveyors viewed the Preussag coils while they were in the Lunita's cargo holds and inspected them during discharge from the Lunita into the Kimberly-Clark barges. Preussag and Lunita each had its own surveyor. Both surveyors tested coils at random with silver nitrate to detect the presence of chlorides. The presence of chlorides would indicate that the coils were exposed to brackish water or saltwater. Both tests were negative, meaning that no chlorides were detected and indicating lack of exposure. Both surveyors also inspected the Lunita's hatches and found no indication of seawater having entered the cargo holds during the ocean voyage.
Approximately 61 or 62 of Preussag's coils were carried from Mobile to Birmingport in the Kimberly-Clark barge designated as the B-01. The coils were stowed in the barged on the round, with multiple rows extending form side to side of the uncovered cargo compartments (hoppers) of the barges. The first tier of each row (generally 4 coils) was placed directly on the metal bottom of the hopper, without separation by dunnage and the second tier, consisting of only one coil in each row was placed on top of the first tier. The barges carrying the Jemison coils arrived at Birmingport on September 2, 1998 and were discharged at various times by Liberty Stevedoring beginning on September 3.
Upon arriving at the Liberty Stevedoring discharge dock in Birmingport, the Kimberly-Clark barge B-01 was observed to have water standing in the cargo hopper to a depth of approximately three feet so that the water was flowing through the eyes of the first tier of coils. No testing was conducted to determine the nature of this water, that is whether it was saltwater, brackish water or fresh water. Liberty personnel had to pump the water from the cargo hopper of the B-01 before the coils could be discharged. None of the other barges were observed to have significant water in their cargo hoppers.
Jemison coils discharged from the bottoms tier of the B-01 were observed to have a distinct rust pattern subsequently referred to by the surveyor as "tide lines." These coils were the subject of a further joint survey by the same surveyors used in Mobile. On November 4, 1998, the surveyors tested coils at the Jemison plant and at Liberty Stevedoring, where some of the coils remained. Five coils, all of which had "tide lines" were selected for testing at the Jemison plant. One coil gave a sporadic mildly positive reaction to silver nitrate on some, but not all, of the sheets cut from it. Another coil yielded a mildly positive reaction in one small area of the 25 sheets into which it had been cut. Three coils tested negative for chlorides. At Liberty Stevedoring, random testing for the presence of chlorides yielded negative results.
One of Preussag's own experts has opined that the rust observed on the coils at Birmingport and Bessemer did not result from seawater contamination during the voyage from Klapeida to Mobile but most likely was caused by brackish water in the barge during transit from Mobile to Birmingport. Furthermore, Lunita's surveyor also has testified that the coils did not come into contact with seawater, brackish water or any other chloride-laden source prior to the time they were placed in the Kimberly-Clark barges for transport from Mobile to Birmingport.
Conclusions of Law
This is an Admiralty and Maritime Claim within the meaning of Rule 9(h) of the Federal Rule of Civil Procedure, and this Court has jurisdiction pursuant to 28 U.S.C. § 1333. The plaintiffs' claim is based upon damage to cargo that allegedly occurred either during ocean carriage on the M/V Lunita, during transport by barge from the ocean carriage discharge port to the place of discharge, or both. The United States Carriage of Goods by Sea Act, 46 U.S.C. App. §§ 1300-15 ("COGSA") applies in this case since plaintiff's claims against Western Bulk, Ugland Marine, and Lunita are arise from the carriage of cargo from a foreign port to the United States. 46 U.S.C. App. § 1312. COGSA places the duty to perform the contract of carriage upon the carrier who is defined as "the owner or charterer who enter into a contract of carriage with the shipper." 46 U.S.C. App. § 1301(a). The owner or carrier can include anyone who has contract with the shipper to carry the cargo. Id.
In this case neither Western Bulk nor Ugland Marine can be held liable because neither qualifies as a "carrier" within the meaning of COGSA. See Rainly Equipos de Riego, S.R.L. v. Pentagon Freight Serv., Inc., 979 F. Supp. 1079, 1082 (S.D. Tex. 1997) ("benefits and burdens of COGSA extend only to `carriers'"). Neither of these defendants/cross-claim defendants was an owner, carrier or bailee during the voyage at issue. Neither signed the bill of lading. Therefore, they have no liability to the plaintiff. Moreover, even if they could be liable under COGSA, the evidence submitted on summary judgment does not support a claim or cross-claim against any Western Bulk, Ugland Marine or their codefendant, Lunita.
Neither Preussag nor Kimberly-Clark has presented evidence that would tend to show that the goods were damaged while in the custody of Lunita, Ugland Marine or Western Bulk. A plaintiff can establish a prima facie case against a carrier under COGSA by proving: (1) that the cargo was delivered to the carrier in good condition and (2) that the cargo was discharged or delivered to the carrier in damaged condition. Associated Metals Minerals Corp. v. Etelae Suomin Laiva, 858 F.2d 674, 677 (11th Cir. 1988). COGSA requires the issuance of a Bill of Lading showing the condition of the goods prior to shipping. 46 U.S.C. App. § 1303(3)(c). In this case the Bill of Lading indicates that the cargo was not delivered in good condition prior to shipping. Moreover, Preussag and Kimberly-Clark have offered no evidence that the cargo was discharged in a damaged condition. The evidence offered by Lunita, Ugland Marine and Western Bulk indicates that the damage occurred either before the coils were delivered for shipping or after they were discharged at Mobile.
Neither plaintiff, Preussag, nor counter-claim plaintiff, Kimberly Clark has pointed to any evidence to refute the issues raised on summary judgment by defendants Western Bulk, Ugland Marine or Lunita, Ltd. Based on the undisputed facts, the Court finds that these defendants/crossclaim defendants are entitled to judgment as a matter of law. Accordingly, it is ORDERED that the motions for summary judgment be and hereby are GRANTED.