Fireman's Ins. Co. of Newark, NJ v. Gulf Puerto Rico Lines, Inc.

Citation349 F. Supp. 952
Decision Date12 September 1972
Docket NumberCiv. No. 969-70.
PartiesFIREMAN'S INSURANCE CO. OF NEWARK, NEW JERSEY, Plaintiff, v. GULF PUERTO RICO LINES, INC., Defendant.
CourtU.S. District Court — District of Puerto Rico

Charles A. Cordero, San Juan, P. R., for plaintiff.

Jimenez & Fuste, José A. Fusté, San Juan, P. R., for defendant.

MEMORANDUM ORDER

CANCIO, Chief Judge.

This cause came to be heard on defendant Gulf Puerto Rico Lines, Inc.'s Motion for Summary Judgment dated December 8, 1971 and plaintiff's Opposition thereto dated February 15, 1972. The facts of the case, from the standpoint of this summary judgment incident, are not in dispute.

On or around the month of August 1969, specifically on August 4 of said year, the defendant, as a maritime carrier, moved the shipment the object of the present controversy, to wit, 72 cases of leather, on board the SS. "Maiden Creek", Voyage SL 94S, from the United States to Puerto Rico, pursuant to Waybill No. 15-789953, a copy of which was annexed to defendant's Motion for Summary Judgment marked as "Exhibit A".

The above described merchandise was delivered in Puerto Rico at the port of Ponce on August 13 and 18, 1969, as evidenced by cart checks (delivery receipts) numbers 15123, 15108 and 15119, attached and marked as Exhibits B, C and D, respectively, to defendant's Motion for Summary Judgment.

The present action was filed after more than one year had elapsed since the time of delivery. Specifically, the action was filed on the 1st day of the month of October, 1970, summons having been served on the 5th day of said month and year.

The action, filed originally before the local courts of Puerto Rico, was removed therefrom to this court pursuant to 28 U.S.C.A. § 1337, since the case involves issues arising under the United States Harter Act, 46 U.S.C.A. § 190 et seq. and/or the United States Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., which are Acts of Congress enacted to regulate commerce. Crispin Co. v. Lykes Bros. S. S. Co., 134 F.Supp. 704 (S.D.Tex.1955); Commonwealth of Puerto Rico v. Sea-Land Service, Inc. et al., 349 F.Supp. 964. Memorandum Order of March 31, 1970, not officially reported.

The moving party in this summary judgment case, Gulf Puerto Rico Lines, Inc., has sustained the position that the present action is time barred since the same was filed after more than one year had elapsed from actual delivery of the goods pursuant to Section (6) of the Carriage of Goods by Sea Act, 46 U.S. C.A. § 1303(6). Said provision of law has been invoked since defendant's short-form bill of lading incorporated by reference its regular long-form bill of lading which, pursuant to Section 13 of the Carriage of Goods by Sea Act (46 U.S.C.A. § 1312), incorporated into domestic traffic the provisions of the Carriage of Goods by Sea Act.

On the other hand, the plaintiff opposes the summary judgment requested by the defendant on the following grounds:

(1) that the defendant is estopped from raising the time-for-suit provision;

(2) that the Carriage of Goods by Sea Act does not sub-silentio eliminate Section 1873 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 5303 which interrupts prescription;

(3) that the Carriage of Goods by Sea Act does not eliminate all other applicable causes of action available against the carrier; and

(4) that an issue of facts exists which defeats the summary judgment requested.

In so doing, the plaintiff alleges that the defendant is estopped from raising the time-for-suit provision. In order to sustain its position the plaintiff cites the case of Michelena & Co. v. American Export & Isbrandtsen Lines, 258 F. Supp. 479 (D.C.P.R.1966) and makes reference to an affidavit signed by Mr. Fred Hegner, Claims Supervisor for the adjustment bureau that represented the plaintiff. Before examining Mr. Hegner's affidavit and accompanying exhibits, we will discuss the applicability of the Maritime Law in general to the maritime contract of transportation and, later, the Michelena doctrine and its applicability to this case, since the same constitutes an important issue that should be clarified.

I.

Although the law applicable ex proprio vigore to coastwise traffic, that is, maritime traffic between ports in the United States and Puerto Rico, is the Harter Act of 1893, 46 U.S.C.A. § 190 et seq., by virtue of Section 13 of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1312, said Carriage of Goods by Sea Act can be incorporated in a contract of coastwise carriage to be the law governing the contractual relationship between the parties to a maritime contract of transportation of such nature. Rhode Island Insurance Co. v. Pope Talbott Line, 78 D.P.R. 454 (1956); Globe Solvents Co. v. California, 167 F.2d 859 (3rd Cir. 1948); Waterman S.S. Corp. v. United States Smelting, Refining & Mining Co., 5 Cir., 155 F.2d 687, cert. den. 329 U.S. 761, 67 S.Ct. 115, 91 L.Ed. 656 (1946).

Said incorporation of COGSA in domestic or coastwise traffic is made by expressly incorporating said Act as a contractual disposition in the carrier's long-form bill of lading. In our case the defendant's long-form bill of lading provides as follows, as evidenced by its Motion for Summary Judgment:

"This bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein. Nothing herein contained shall be construed to be a surrender of any of the rights or immunities, or an increase of any of the responsibilities or liabilities of the carrier under said Act. If any term of this bill of lading be repugnant to said Act to any extent, such term shall be void to that extent but no further. The provisions of said Act (but only to the extent that there may be any liability at all on the part of the carrier, and except as may otherwise be provided herein) govern the reciprocal relationship thereunder of the carrier on the one hand, and the shipper consignee and goods on the other, before the goods are loaded on, and after they are discharged from the ship, and throughout the entire time during which the goods are in the custody of the carrier. The carrier shall in no event be liable, in any capacity whatever, for any delay, non-delivery, mis-delivery, for any loss or damage, occurring while the goods are not in its actual custody."

In turn, Section 3(6) of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303(6), provides in its pertinent part as follows:

"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 . . ."

It being an undisputed fact that the present action was filed after more than one year had elapsed from the time of delivery, contrary to Section 3(6) of COGSA, the present action is time barred and summary judgment should be entered on behalf of the defendant. Ziferrer v. Atlantic Lines, Limited, 278 F. Supp. 736 (D.C.P.R.1968); Midstate Horticultural Co. v. Penn. R.R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96 (1943), cited with approval in M.V.M. Inc. v. St. Paul Fire & Marine Insurance Co., 156 F.Supp. 879 (SDNY 1957); 63 Harv.Law Rev. 1176; Burdines Inc. v. Pan Atlantic SS. Co., 199 F.2d 571 (5th Cir. 1952); United States v. South Star, 210 F.2d 44 (2nd Cir. 1954); Gulf P. R. Lines v. Maicera Criolla, Inc., 309 F. Supp. 539 (D.C.P.R.1969).

Before we enter into the discussion of the arguments advanced by the plaintiff in its Memorandum in opposition to defendant's Motion for Summary Judgment, specifically the one that called for the application of the doctrine of Michelena & Co. v. American Export & Isbrandtsen Lines, 258 F.Supp. 479 (D. C.P.R.1966), we will say more about the Carriage of Goods by Sea Act and its time-for-suit provision contained in Section 3(6) of the Act (46 U.S.C.A. § 1303(6).

The Carriage of Goods by Sea Act proceeds from the Hague Rules of 1921 approved in the Brussels Convention of 1922-1924. A similar statute has been adopted by various countries,1 having as their general purpose the unification or standardization of the principal provisions of the maritime contract for carriage. There is no doubt in the mind of the commentators, and the courts have so agreed, that the driving force behind the movement which led to the standardization of the statements and propositions stated in the Brussels Convention, and more or less faithfully reflected in the individual national legislation, was the need of assurance that at least the greater number of questions posed by bills of lading was to receive the same answer in the courts of all nations: This was expressed in the petition for certiorari in The Venice Maru, 1943 A. M.C. 1209. In that case the Supreme Court of the United States restored harmony between the interpretation under the British Carriage of Goods by Sea Act and the United States statute as to an interpretation relating to the fire statute pursuant to said Act. Knauth, Ocean Bills of Lading, 1953, American Maritime Cases Publication, Baltimore, Md., pages 115 et seq.

Assuming, for the sake of argument, that there was damage to the shipment the object of this suit, imputable to the defendant maritime carrier, and accepting as all the parties reasonably must accept, that the Complaint was filed after the one-year period from the date of delivery had elapsed, it is of utmost importance for this court to properly advise all concerned as to the nature of the time-for-suit provision under the Carriage of Goods by Sea Act. Of specific interest, the subject of alleged malicious misrepresentations and their possible tolling effect should be fully discussed by this court.

Section 3(6) of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303(6), reads literally as follows:

"(6) Unless notice of loss or damage and the general nature of such loss or
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