45 F.3d 951 (5th Cir. 1995), 94-20314, Tubacex, Inc. v. M/V Risan

Docket Nº:94-20314
Citation:45 F.3d 951
Party Name:TUBACEX, INC., Plaintiff-Appellant, v. M/V RISAN, her engines, boilers, tackles, etc., in rem and against Jugoslavenska Oceanska Plovidba, (Jugooceanija), and Forest Lines, Inc., in personam, Defendants-Appellees.
Case Date:February 23, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 951

45 F.3d 951 (5th Cir. 1995)

TUBACEX, INC., Plaintiff-Appellant,

v.

M/V RISAN, her engines, boilers, tackles, etc., in rem and

against Jugoslavenska Oceanska Plovidba,

(Jugooceanija), and Forest Lines, Inc.,

in personam, Defendants-Appellees.

No. 94-20314

United States Court of Appeals, Fifth Circuit

February 23, 1995

Page 952

[Copyrighted Material Omitted]

Page 953

William F. O'Rourke, Ann E. Knight, Kroll & Tract, Houston, TX, for appellant.

Kyle D. Giacco, Peter A. McLauchlan, Meyers Orlando & Evans, Houston, TX, for Forest Lines, Inc.

Appeal from the United States District Court for the Southern District of Texas.

Before JOHNSON, DUHE and BENAVIDES, Circuit Judges.

JOHNSON, Circuit Judge:

Shipper brought action under COGSA 1 to establish carrier's liability for damage to cargo. The district court granted summary judgment in favor of carrier, however, finding that the carrier had successfully made out a defense under 46 U.S.C. Sec. 1304(2)(q) by showing that the damage was caused by the actions of the shipper's agents and without the fault or negligence of the carrier. Finding no error, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

In December of 1990, Tubacex, Inc., contracted with Forest Lines, Inc. (hereinafter "FLI"), to ship a load of seamless rolled steel tubes from Bilbao, Spain, to New Orleans, Louisiana, and Houston, Texas. This cargo was loaded aboard an FLI lash barge 2 and FLI issued to Tubacex bills of lading which were "clean." 3 This barge was to be loaded aboard the next available FLI mother vessel to call at Bilbao, Spain.

Tubacex believed that such a vessel would be available in January of 1991. However, in January, FLI informed Tubacex that the next mother vessel that would call at Bilbao would be in April of 1991. Facing other deadlines for the cargo, Tubacex decided to make other arrangements. Hence, Tubacex demanded that the cargo be unloaded so that it could be shipped by other means.

On February 7, 1991, a stevedore chosen and hired by Tubacex unloaded the cargo from the FLI barge. This unloading procedure took place during inclement weather and the cargo was stored in the open air, while wet, for several days until it was loaded aboard the vessel M/V RISAN. The bills of lading issued by Jugoslavenska Oceanska Plovidba (Jugooceanija) at that time noted some damage to the cargo. 4

Subsequently, Tubacex brought the instant action against FLI 5 in redress of the damage caused to the cargo. FLI filed a motion for summary judgment requesting that the district court find, in pertinent part, that:

1. The damage was caused by Tubacex's agents and not by FLI. Thus, FLI is exempt from liability under 46 U.S.C. Sec. 1304(2)(i); and

2. There is no evidence to show that FLI in any way caused the damage. Therefore, FLI is exempt from liability under 46 U.S.C. Sec. 1304(2)(q).

Initially, the district court denied this motion. However, FLI filed a motion for reconsideration of its summary judgment which the district

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court granted finding that FLI had successfully made out a defense under 46 U.S.C. Sec. 1304(2)(q). The district court entered final judgment on March 25, 1994, and Tubacex has timely appealed.

II. DISCUSSION

A. Standard of Review

In determining whether a district court properly granted summary judgment, this Court must review the record under the same standards that guided the district court. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). Under those standards, we will only affirm a summary judgment if we conclude that "there is no genuine issue of as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response. If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id.; Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the nonmovant fails to meet this burden, then summary judgment is appropriate.

B. COGSA Generally

Both parties agree that this dispute is governed by COGSA...

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