Opinion
97 Civ. 3710 (MBM).
August 20, 1998
EDWARD C. RADZIK, ESQ., JOHN F. RYAN, ESQ., (Attorneys for Plaintiff), Donovan Parry Carbin McDermott Radzik, New York, NY.
MICHAEL E. CROWLEY, ESQ., (Attorney for Defendants Neptune Orient Line and Phoenix Freight Line), Nourse Bowles, LLP, New York, NY.
NOURSE BOWLES, LLP, Attorneys for Defendants, NEPTUNE ORIENT LINE and PHOENIX FREIGHT LINE, New York, New York.
DONOVAN PARRY CARBIN MCDERMOTT RADZIK, Attorneys for Plaintiffs, MITSUBISHI ELECTRIC MANUFACTURING CINCINNATI, INC., New York, New York.
OPINION AND ORDER
Royal Insurance Co. ("Royal"), the subrogated insurer of a shipment of brush assemblies lost during ocean carriage, sues Phoenix Freight Line ("Phoenix") and Neptune Ocean Lines ("Neptune") seeking to recover the value of the shipment. Defendants move for summary judgment on the affirmative defense that maritime law limits their respective liability, if any, to a fraction of the shipment's value. Royal cross-moves for summary judgment striking this defense. For the reasons stated below, the motions are granted in part and denied in part.
I.
The material facts are undisputed. Royal is the marine cargo insurer of Mitsubishi Electric Manufacturing Cincinnati, Inc. ("Mitsubishi"), a named plaintiff in this action. (Def. Rule 56.1 Statement ¶ 1) In early October 1996, Mitsubishi purchased 91,000 brush assemblies from Laguna Auto Parts Manufacturing Corporation ("Lamcor"), a company located in the Philippines. (Id. ¶¶ 3, 8) The transaction was reflected in five purchase orders, each of which covered a portion of the total number of brush assemblies. (Id. ¶ 8) The brush assemblies themselves were small — approximately 4 centimeters long and 1 1/2 centimeters wide — and cylindrical in shape. (Id. ¶ 9)
Between October 11 and 18, 1996, Lamcor personnel prepared the brush assemblies for delivery. (Id. ¶ 13) They first packed the assemblies into 370 separate cardboard boxes and then secured the boxes onto 14 wooden pallets. (Id. ¶¶ 14, 18) Attached to each pallet was a "shipping mark" showing, among other things, the number of boxes on each pallet. (Id. ¶ 19)
At around this same time, Lamcor contracted with Phoenix to ship the brush assemblies to Cincinnati. (Id. ¶ 25) Phoenix is what is known in the shipping industry as a "non-vessel owning common carrier" or NVOCC. (Id. ¶ 3) NVOCC's pick up cargo from multiple shippers and then arrange with a vessel-operating carrier to have the cargo transported to their intended destinations. See Insurance Co. of N. Am. v. S/S American Argosy, 732 F.2d 299, 301 (2d Cir. 1984). Thus an NVOCC is something of a hybrid; it is a common carrier with respect to the shipper that uses its services, but it is the agent of the shipper — and therefore a customer — with respect to the vessel and its operator. See id. Over the course of the previous year, Lamcor had regularly used Phoenix as an NVOCC on similar trans-Pacific shipments. (Def. Rule 56.1 Statement ¶ 31)
In preparation for the ocean carriage, Lamcor provided Yusen Air Sea Services ("Yusen"), Phoenix's Manila-based agent, with "pro forma booking" information about the shipment of brush assemblies. (Id. ¶ 25; crowley Aff. Ex. F) Phoenix incorporated that information into a bill of lading ("the Phoenix Bill of Lading"), listing Lamcor as the shipper. (Crowley Aff. Ex. H) Phoenix then supplied Lamcor with a 20-foot shipping container into which Lamcor personnel loaded the 14 pallets. (Pl. Rule 56.1 Statement ¶ 22; Def. Rule 56.1 Statement ¶ 22)
For purposes of this motion, there is no meaningful difference between Phoenix and its agent, Yusen. In the interests of simplicity, I will refer to both parties as "Phoenix."
Phoenix next contracted with Neptune, an ocean carrier, to handle the actual carriage. (Def. Rule 56.1 Statement ¶ 26) It supplied Neptune with pro forma booking information, and Neptune incorporated that information into its own bill of lading (the "Neptune Bill of Lading"), which named Phoenix as the shipper. (Id. ¶ 33; Crowley Aff. Exs. L, M) On October 18, 1996, the brush assemblies were loaded aboard the M/V ACX Ruby, a vessel that Neptune had chartered from another shipping line. (Def. Rule 56.1 Statement ¶ 36; Pl. Rule 56.1 Statement ¶ 7) Two days later, while in route to Hong Kong, the M/V ACX Ruby encountered inclement weather, and nine containers, including the one containing the assemblies, were lost overboard. (Def. Rule 56.1 Statement ¶ 37)
After compensating Mitsubishi for the lost shipment, Royal brought the present action against Phoenix and Neptune, seeking to recover $115,245.90 in damages. (Compl. Sch. A) In their answer to the complaint, defendants assert the affirmative defense that their liability, if any, is governed by § 4(5) of the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. App. § 1304(5) (1994), which limits a shipper's damages to $500 per package. They now move for a summary judgment on this defense, arguing that the "packages" are the 14 pallets, not the 370 boxes, and that therefore they cannot be held liable for more than $7,000 each. Royal cross-moves for summary judgment striking the affirmative defense.
Royal is also the cargo insurer of the other named plaintiff in this case, Lincoln-Gerard USA Inc. ("Lincoln-Gerard"), whose goods were also lost overboard the M/V ACX Ruby. (Def. Rule 56.1 Statement ¶ 1) In its capacity as Lincoln-Gerard's subrogee, Royal sued Pelorus Ocean Line, Ltd., and NYK Line, under whose bill of lading Lincoln-Gerard's cargo was shipped. In April 1998, the parties stipulated to a discontinuance of this aspect of Royal's action. (4/13/98 Order)
II.
There is no dispute that the question of whether defendants' can invoke the $500 per package limitation is, at bottom, a matter of contract law, the contracts in question being the bills of lading. See Binladen BSB Landscaping v. M.V. "Nedlloyd Rotterdam", 759 F.2d 1006, 1012 (2d Cir. 1985) ("touchstone" of court's analysis is "contractual agreement between the parties, as set forth in the bill of lading"). The parties also apparently have recognized that the liability of each defendant must be determined by reference to its own bill of lading. (Pl. Mem. at 2 n. 2; Def. Mem. at 13-16) This understanding is consistent with weight of authority, including caselaw from this circuit. See American Argosy, 732 F.2d at 304 (holding that ocean carrier, simply by shipping goods, was not liable under NVOCC's bill of lading); Gross Machinery Group v. M/V "Alligator Independence", No. 91 Civ. 0460, 1992 WL 47557, at *3 (S.D.N.Y. Mar. 4, 1992) (holding that NVOCC cannot avail itself of protections afforded by ocean carrier's bill of lading but is instead bound by terms of its own bill); M. Prusman Ltd. v. M/V Nathanel, 670 F. Supp. 1141, 1143 n. 1 (S.D.N.Y. 1987) (suggesting that NVOCC is not insulated from liability under carrier's bill of lading); see also SPM Corp. v. M/V Ming Moon, 965 F.2d 1297, 1305 n. 9 (3d Cir. 1992) (ocean carrier's liability "determined under its own bill of lading"). But see Fireman's Fund Am. Ins. v. Puerto Rican Forwarding Co., 492 F.2d 1294, 1296 (1st Cir. 1974) (suggesting in dictum that ocean carrier's bill of lading has no bearing on shipper's rights where an NVOCC is involved); Rainly Equipos de Riego S.R.L. v. Pentagon Freight Servs., Inc., 979 F. Supp. 1079, 1084-85 (S.D. Tex. 1997) (holding, without any citations, that where two bills of lading issued for same shipment, "there is a presumption of fraud upon commerce" and only one bill can control). Accordingly, I will evaluate each defendant's liability as revealed by its own bill of lading.
A. Phoenix
With respect to Phoenix, Royal's principal argument is that the Phoenix Bill of Lading does not provide sufficient notice of COGSA's liability limitation to allow Phoenix to invoke that limitation. To take advantage of COGSA's $500 per package limitation, a carrier must give a shipper fair opportunity to declare excess value. See General Elec. Co. v. MV Nedlloyd, 817 F.2d 1022, 1028 (2d Cir. 1987). Under the "fair opportunity doctrine," a carrier must 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 id. at 1029; Nippon Fire Marine Ins. Co. v. M.V. Tourcoing, 979 F. Supp. 206, 209 (S.D.N.Y. 1997). Prima facie evidence of fair opportunity "is established when it can be gleaned from the language contained in the bill of lading." General Electric, 817 F.2d at 1029. If the carrier succeeds in making out a prima facie case, the burden shifts to the plaintiff to demonstrate that fair opportunity did not in fact exist. See id.
The Second Circuit has not adopted rigid rules for determining when a bill of lading provides prima facie evidence of fair opportunity. However, the Circuit has held that a bill of lading is sufficient when it (1) explicitly incorporates COGSA's provisions and (2) provides a space for declaring excess value.See General Electric, 817 F.2d at 1029; Binladen BSB Landscaping, 759 F.2d at 1017 n. 12. As Phoenix points out, however, subsequent cases from this District have gone one step further, and held that the second element — a space for declaring higher value — is not an absolute requirement. See Insurance Co. of N. Am. v. M/V xiang He, No. 89 Civ. 0184, 1990 WL 121587, at *3 (S.D.N.Y. Aug. 15, 1990); Union Carbide Corp. v. M/V Michele, 764 F. Supp. 783, 786 (S.D.N.Y. 1990). However, in each of these cases, the bill of lading explicitly incorporated COGSA and specifically stated that the shipper would have to declare excess value in order to avoid COGSA's liability limitations. See M/V Xiang He, 1990 WL 121587, at *3; Union Carbide, 764 F. Supp. at 784-85. Thus, it appears safe to say that, at a bare minimum, a bill of lading must explicitly incorporate COGSA's provisions or refer in some way to the $500 per package limitation in order to constitute prima facie evidence of fair opportunity.
The Phoenix Bill of Lading fails to clear even this low hurdle. Not only does it lack a space for declaring excess value, but it also fails to mention COGSA, the $500 per package limitation, or the shipper's right to opt out of that limitation. (Crowley Aff. Ex. H) In short, the Phoenix Bill of Lading is not prima facie evidence that Lamcor, the shipper, had a fair opportunity to declare excess value. See Gross Machinery Group, 1992 WL 47557, at *4 (finding that bill of lading failed fair opportunity test where it "neither expressly incorporate[d] COGSA nor provide[d] a space for declaring excess value").
Phoenix's principal contention to the contrary is that Clause 11 of its bill of lading adequately put Lamcor on notice of the relevant liability limitation and its right to declare excess value. That clause provides in relevant part:
The Amount of Compensation
. . . .
(2) Except for the case where Clause 4 applies, compensation [for lost or damaged goods] shall not . . . exceed U.S. $2.00 per kilo of gross weight of the Goods lost or damaged.
(3) Higher compensation may be claimed only when, with the consent of Carrier, the value for the Goods declared by Merchant which exceeds the limits laid down in this clause has been stated in this Bill of Lading.
The Phoenix Bill of Lading defines "Merchant" to include both the shipper and owner of the cargo. (Crowley Aff. Ex. H)
(Crowley Aff. Ex. H)
There are two difficulties with Phoenix's argument. First, although Clause 11 refers to a $2.00 per kilogram liability limitation, nowhere does it mention COGSA or the $500 per package limitation that Phoenix now seeks to enforce. Second, Clause 11 by its own terms is inoperative "where Clause 4 applies." (Id.) Clause 4 is a long and convoluted choice-of-law provision, the terms of which are relevant only to the extent discussed below. For the moment, it suffices to observe that Clause 4 contains two sub-parts. Although the parties differ over which subpart governs this action, even Phoenix argues that one of these subparts applies. Accordingly, under Phoenix's own reading of its bill of lading, Clause 11 is inapplicable here. I am unwilling to conclude that a facially inapplicable clause was sufficient to put Lamcor on notice of the need to declare excess value.
There is one part of Clause 4 that merits brief discussion. Subpart (B) of that clause provides in relevant part that the bill of lading shall have effect subject to the provisions "of the Hague Rules . . . or of any legislation of the Hague-Visby Rules . . . in those countries where they are in force as enacted in the country of shipment." (Crowley Aff. Ex. H) Because COGSA is essentially the United States' adoption of the Hague Rules, it is arguable that, by mentioning those rules, the Phoenix Bill of Lading made an indirect reference to COGSA sufficient to constitute adequate notice. See Armco Chile Prodein, S.A. v. M/V Norlandia, 880 F. Supp. 781, 795 (M.D. Fla. 1995) (holding that fair opportunity doctrine was not satisfied but observing in dictum that mentioning Hague rules constituted "round about" reference to COGSA), aff'd, 104 F.3d 370 (11th Cir. 1996) (table). I decline so to hold on the facts of this case. Clause 4 does not say that the Hague Rules always apply; it says that either the Hague Rules or the Hague-Visby Rules apply, depending on the country of shipment. Thus, a shipper who wanted to learn about his rights under the Phoenix 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. See General Elec. Co. v. M.V. Lady Sophie, 458 F. Supp. 620, 622 (S.D.N.Y. 1978) ("These steps are necessitated by the absence of a simple statement in the bill of lading that the value of the cargo must be declared and inserted therein to avoid the $500 limitation."). Such an inquiry would be particularly maddening here, as even the parties cannot agree on whether the Philippines has adopted the Hague Rules at all for outbound shipments. In short, whatever obscure reference Clause 4 may make to COGSA, it does not provide even the minimal sort of notice envisioned byGeneral Electric and Binladen BSB Landscaping.
Phoenix argues next that Lamcor was an experienced shipper, having used Phoenix's services on numerous prior occasions, and therefore should have known about the liability limitations and the need to declare excess value. Assuming arguendo that Lamcor can be considered an experienced shipper, I am nonetheless unpersuaded by this argument. Although courts have sometimes inquired into a shipper's degree of sophistication in determining whether it had fair opportunity to declare excess value, they have done so only after the carrier has made a prima facie showing that it had provided notice of the $500 per package limitation and how to avoid it. See Travelers Indem. Co. v.Vessel Sam Houston, 26 F.3d 895, 899-900 (9th Cir. 1994) (rejecting experienced shipper's argument that fair opportunity was lacking because bill did not contain a space for declaring excess value, where bill of lading did describe $500 liability limitation and way to opt out); Union Carbide, 764 F. Supp. at 786 (same). Moreover, if, as Phoenix's argument suggests, the degree of notice required by the fair opportunity doctrine were simply a function of the shipper's degree of sophistication, that doctrine would benefit only inexperienced shippers. The Second Circuit has not followed such reasoning. See General Electric, 817 F.2d at 1029 (analyzing lack of adequate notice claim even after noting that shipper was experienced).
Finally, Phoenix argues that, because Lamcor made no effort to declare excess value and because the shipment of brush assemblies was insured through an independent insurance company, Lamcor had no intent to declare excess value. Again, I am unpersuaded. Phoenix's argument presupposes the answer to the question at issue: Did it gave adequate notice of the COGSA liability limitations such that the shipper or cargo-owner could make an informed decision to opt out of those limitations or purchase outside insurance? To the extent courts have considered the existence of outside insurance on this issue, they have done so only after finding that the bill of lading provided adequate notice of the $500 per package limitation. See Travelers Indemnity, 26 F.3d at 900 (finding that shipper that had notice of liability limitation made a "conscious decision" to purchase insurance instead of opting out of COGSA); see also M/V Xiang HE, 1990 WL 121587, at *3 n. 2 (where carrier "met its prima facie burden," court finds that existence of outside insurance contradicted shipper's claim that it wanted to declare higher value).
As a judicially created rule, the fair opportunity doctrine must be subject to refinement and reconsideration as it is tested by application. Perhaps as a result of the widespread familiarity with COGSA among participants in the shipping industry, there appears to be a trend in the caselaw to read the doctrine narrowly. See 2A Michael F. Sturley, Benedict on Admiralty § 166, at 16-29 (1998) ("Benedict") (observing that doctrine may "one day be of merely historical interest"); see also Henley Drilling Co. v. McGee, 36 F.3d 143, 146 n. 5 (1st Cir. 1994) (declining to adopt "problematic" doctrine). Be that as it may, the doctrine exists and is recognized, and under prevailing Circuit law, if a carrier fails to carry its burden of proving fair opportunity, it "loses the benefit of any limitation of liability to which it otherwise might be entitled." General Electric, 817 F.2d at 1028. Because Phoenix has not met its burden here, it cannot enforce the $500 per package limitation.
Therefore, I need not address Royal's alternative arguments related to the applicability of the Hague-Visby Rules.
B. Neptune
There is no dispute that Neptune has satisfied the fair opportunity doctrine. Unlike the Phoenix Bill of Lading, Neptune's bill explicitly incorporates COGSA, alerts the shipper to the need to declare excess value, and provides a space on the front for doing so. (Crowley Aff. Ex. M) Rather, the question presented by the Neptune Bill of Lading is whether the 370 boxes of brush assemblies, or the 14 pallets on which those boxes were shipped, should be considered the relevant "packages" for purposes of COGSA's $500 per package liability limitation. I conclude that the parties intended for the 14 pallets to be the relevant COGSA packages.
The question of what constitutes a COGSA "package" is a recurring problem in maritime litigation. See 2A Benedict § 170, Table I, 16-51 — 16-90 (collecting cases). At least in this Circuit, these cases can be grouped into two general categories: "container" and "non-container" cases. See Monica Textile Corp. v. S.S. Tana, 952 F.2d 636, 638-40 (2d Cir. 1991). Container case are those in which one of the parties argues that a single shipping container is the COGSA package. See, e.g., Mitsui Co., Ltd. v. American Export Lines, Inc., 636 F.2d 807, 818-21 (2d Cir. 1981). Conversely, in non-container cases, neither party argues that the container is the COGSA package, but the dispute instead concerns the significance of some other shipping unit, such as a carton or pallet. See, e.g., Allied Chem. Int'l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 484-86 (2d Cir. 1985). Because, in this case, neither party contends that the shipping container into which the brush assemblies were loaded constitutes the relevant "package," my analysis is controlled by the non-container cases, the foremost of which isSeguros "Illimani" v. M/V Popi P, 929 F.2d 89 (2d Cir. 1991) ("Seguros").
The issue in Seguros was whether bundles of tin ingots, or the individual ingots, constituted COGSA packages. The Court held that resolution of this issue presented "primarily the question of whether the bill of lading, construed as a contract, reveals the parties' agreement on the appropriate COGSA `package.'" Id. at 94; accord Allied Chemical, 775 F.2d at 485 ("The question of what constitutes a COGSA package . . . is largely and in this first instance a matter of contract interpretation."). The bills of lading at issue in Seguros each contained two columns using the term "package," one entitled "NO. OF PKGS." and another "DESCRIPTION OF PACKAGES AND GOODS." Seguros, 929 F.2d at 94. The Court was principally interested in the first column:
The number appearing under the heading "NO. OF PKGS." is our starting point for determining the number of packages for purposes of the COGSA per-package limitation, and unless the significance of that number is plainly contradicted by contrary evidence of the parties' intent, or unless the number refers to items that cannot qualify as "packages," it is also the ending point of our inquiry.Id. The Court anticipated that this bright-line test would reduce litigation by encouraging precision in drafting. Id.
As did the bill of lading in Seguros, the Neptune Bill of Lading contains two columns using the word "package," one entitled "NO. OF PACKAGES" and the other entitled "DESCRIPTION OF PACKAGES AND GOODS." (Crowley Aff. Ex. M) The "NO. OF PACKAGES" column, in turn, contains two notations: "20 GP" and "91000 PIECES." It is unclear what relevance, if any, the first notation has. The parties have not explained to the court what "20 GP" means nor have they paused to consider whether that notation has any bearing on the present issue. Under these circumstances, I cannot conclude that the parties intended "20 GP" to refer to the number of COGSA packages. See Seguros, 929 F.2d at 94; see also Empire Hair Processing Corp. v. S.S. Aconcagua, No. 91 Civ. 0501, 1992 WL 354497, at *5 (S.D.N.Y. Nov. 17, 1992) (disregarding notation in "NO. OF PKGS." column where neither party contended that it represented appropriate unit of measurement).
The parties have devoted considerably more attention to "91000 PIECES," the second notation in the "NO. OF PACKAGES" column. However, this notation is of no more assistance than the first. As noted, the number appearing in the "NO. OF PACKAGES" column should be taken as an indication of the parties intent only when that number refers to items that can qualify as "packages." See Seguros, 929 F.2d at 94. There is no dispute here that "91000 PIECES" refers to the number of individual brush assemblies purchased by Mitsubishi. However, as both parties have implicitly recognized, the small, cylindrically shaped brush assemblies are not separate COGSA "packages." See id. at 95 (individual ingots could not qualify as "packages" because they had not been "`sufficiently wrapped, bundled or tied'" together) (quoting Mitsui, 636 F.2d at 822).
In cases such as this, where the "NO. OF PACKAGES" column is not instructive on the question of how many "packages" the parties intended to ship, Seguros provides that the court must look elsewhere on the bill of lading for "the next best indication of the parties' intent. . . ." 929 F.2d at 95. An obvious places to search for such information is the column entitled "DESCRIPTION OF PACKAGES AND GOODS." See Empire Hair Processing Corp., 1992 WL 354497, at *6. In this case, that column also includes two relevant entries. First, it contains a list of the five purchase orders issued by Lamcor, along with the number of brush assemblies covered by each order. (Crowley Aff. Ex. M) Second, directly below the list of purchase orders, the column contains the parenthetical notation, "(14 PALLETS)." Id. These two pieces of information — the number of pallets and the number of brush assemblies — fit neatly with the title of the column, "DESCRIPTION OF PACKAGES AND GOODS." Because the "goods" are obviously the brush assemblies, the parties must have intended the other entry — the pallets — to be the "packages."See generally Allied Chemical, 775 F.2d at 485 ("We have long accepted a pallet may, under appropriate circumstances, be deemed to be a package."). In any event, the pallets are the only items listed in that column that could qualify as "packages." See Seguros, 929 F.2d at 95 (accepting, as next best indication of parties intent, numbers that refer to something that can qualify as a package); cf. Empire Hair Processing, 1992 WL 354497, at *6 (finding bill of lading to be ambiguous where "DESCRIPTION OF PACKAGES AND GOODS" column listed both number of pallets and number of smaller shipping units).
Royal does not dispute that the notation "(14 PALLETS)" was properly placed in the "DESCRIPTION OF PACKAGES AND GOODS" column. It argues instead that the Neptune Bill of Lading is ambiguous as to the parties' intent because it also refers to the 370 boxes. I am unconvinced. The only reference to the boxes appears along with a great deal of other information in the column entitled "MARKS NOS/CONTAINER NOS.," a category that evidently relates in some way to the shipping marks that were place on each pallet. Whatever information that column was intended to provide, it is unlike the "DESCRIPTION OF PACKAGES AND GOODS" column in that it does not purport to enumerate the "packages" being shipped. See Seguros, 929 F.2d at 94 ("`Package' is a term of art in the ocean shipping business. . . .").
Moreover, to the extent that referring to the boxes imported any mild ambiguity into the Neptune Bill of Lading, that ambiguity is quickly dispelled by the other shipping documents at issue here. See Seguros, 929 F.2d at 95 (looking to other shipping documents to determine parties' intent); Standard Electrica, S.A. v. Hamburg Sudamerikanische Dampfschiffahrts-Gesellschaft, 375 F.2d 943, 946 (2d Cir. 1967) ("The dock receipt, the bill of lading, and libellant's claim letter all indicated that the parties regarded each pallet as a package."). At least three of these documents, including the pro forma booking sheets prepared by Lamcor and Phoenix, list "14 PALLETS" under the column calling for a description of the "packages." (Crowley Aff. Exs. F, K, L) Under these circumstances, I find that there is no ambiguity with respect to the parties' intent, as embodied in the Neptune Bill of Lading, that the 14 pallets be considered the COGSA packages. Accordingly, Neptune's liability, if any, is limited to $7000.
* * *
For the above reasons, defendants' motion for summary judgment limiting their respective liabilities under COGSA is granted as to Neptune but denied as to Phoenix. Conversely, Royal's motion for summary judgment striking the COGSA defense is granted as to Phoenix but denied as to Neptune.The Court was advised on August 13, 1999 that all claims asserted herein have been settled. Accordingly, the above-captioned case is discontinued with prejudice and without costs.
STIPULATION AND ORDER OF VOLUNTARY DISMISSAL
IT IS HEREBY STIPULATED and agreed by and among the undersigned attorneys for plaintiff, ROYAL INSURANCE COMPANY a/s/o MITSUBISHI ELECTRIC MANUFACTURING CINCINNATI, INC., and defendants NEPTUNE ORIENT LINE and PHOENIX FREIGHT LINE, that pursuant to Rule 41(a)(1) the above-titled action is dismissed with prejudice but without costs to any party;
AND IT IS FURTHER STIPULATED and agreed that nothing contained in this stipulation and order shall affect NEPTUNE ORIENT LINE's and PHOENIX FREIGHT LINE's right to seek indemnity and/or contribution from NYK LINE and/or the "ACX RUBY", her owners, underwriters, etc., for the full amount of settlement payments made to plaintiffs, together with interest, costs and attorneys' fees, in accordance with the terms and conditions of the applicable charter party between the parties.
SO ORDERED: