835 F.2d 932 (1st Cir. 1987), 87-1330, Greenburg v. Puerto Rico Maritime Shipping Authority

Docket Nº:87-1330.
Citation:835 F.2d 932
Party Name:Laurence B. GREENBURG, etc., et al., Plaintiffs, Appellants, v. PUERTO RICO MARITIME SHIPPING AUTHORITY, etc., et al., Defendants, Appellees.
Case Date:December 23, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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835 F.2d 932 (1st Cir. 1987)

Laurence B. GREENBURG, etc., et al., Plaintiffs, Appellants,

v.

PUERTO RICO MARITIME SHIPPING AUTHORITY, etc., et al.,

Defendants, Appellees.

No. 87-1330.

United States Court of Appeals, First Circuit

December 23, 1987

Heard Nov. 4, 1987.

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Joseph C. Delcore with whom Delcore & Delcore, Everett, Mass., was on brief, for appellants.

Steven C. Lausell, with whom Jimenez, Graffam & Lausell, San Juan, P.R., was on brief, for appellees.

Before COFFIN, BOWNES and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Laurence B. Greenburg, plaintiff-appellant, is a food wholesaler who does business under the name and style of "Ampex Meats." Greenburg wanted to ship an order to a customer in Puerto Rico. To implement this desire, he entered into a contract to transport the comestibles from Port Elizabeth, New Jersey to San Juan, Puerto Rico aboard the S.S. Fortaleza, a vessel owned, managed, and operated by the defendants-appellees, Puerto Rico Maritime Shipping Authority and Puerto Rico Marine Management, Inc. The shipment was to proceed pursuant to bill of lading and to the terms and provisions of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. Secs. 1300-1315.

The mechanics of the transaction were relatively straightforward. At Ampex's warehouse in Massachusetts, plaintiff stacked 1174 packages of meats and foodstuffs into a sealed container (sometimes called a "reefer") provided by defendants. 1 The latter arranged to take the container to the docks in Port Elizabeth and load it aboard the Fortaleza. All of this was accomplished on April 11 and 12, 1984.

Greenburg was given a "clean" bill of lading, i.e., one which contained stock recitals attesting to the apparent good order and condition of the wares. The bill of lading contained a special stipulation to the effect that the merchandise was to be kept at a temperature of zero degrees. 2 Although the Fortaleza put into port at San Juan on April 15, the consignee did not take possession of the shipment until ten

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days later. During this span, the refrigerated reefer remained in defendants' control, in their "Reefer Yard." When uncrated by the consignee, the cargo was susceptible to description in much the same language which John Randolph once used to describe a political nemesis, Edward Livingston: it shone and stunk like rotten mackerel in the moonlight. The food was, by and large, inedible and unsalable.

Greenburg sued, claiming that the goods had been spoiled in transit and that the shipowners should respond in damages. After some nineteen months of discovery, the defendants moved for summary judgment, Fed.R.Civ.P. 56, supporting their motion with numerous exhibits (sworn statements, deposition transcripts, and the like). Plaintiff's opposition included similar, but less copious, paperwork. And the defendants, eager to have the last word, filed a reply which brought further materials before the court. Eventually, the district judge granted brevis disposition in defendants' favor. Greenburg v. Puerto Rico Maritime Shipping Authority, Civ. No. 84-2748 GG, slip op. (D.P.R. Feb. 27, 1987) (unpublished). The court held that "plaintiff failed to establish that the merchandise was in actual good order and condition at the time of shipment," id. at 6, thereby defeating his claim for damages. Finding the ruling to be unpalatable, Greenburg appealed.

In passing upon a Rule 56 motion, the district court must make a threshold determination of "whether there is a need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In conducting this tamisage, it is apodictic that the district court must eye all reasonable inferences in the light most congenial to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). We can reverse a grant of summary judgment only if we find that "issues of fact which were adequately raised before the district court need to be resolved before the legal issues in the case may be decided." Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 986 (1st Cir.1983). In fine, Fed.R.Civ.P. 56 requires that we, as the reviewing tribunal, be "fully satisfied that there is no genuine dispute as to any relevant fact issue and that the appellee is, as a matter of law, due the relief which the district court awarded." Advance Financial Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir.1984); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Notwithstanding that recent caselaw has invited greater use of Rule 56, the test remains a fairly rigorous one.

We pause before beginning our canvass of the evidentiary fragments contained in the depositions, affidavits, supporting documents, and the like which comprise the present record. We believe it to be helpful first to set out an overview of the substantive law implicated by the pleadings. Plaintiff's case is based, at bottom, on defendants' supposed breach of the duties imposed by Sec. 1303(1)(c) and (2) of COGSA: the carrier's obligations to exercise "due diligence" to make the refrigerating chambers which it used "fit and safe" for the carriage and preservation of the goods, and to "properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods." Id. To prove such dereliction, Greenburg would ordinarily be expected to show delivery of the merchandise to the carrier in good order and condition. Vana Trading Co. v. S.S. "Mette Skou", 556 F.2d 100, 104 (2d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977). The absence of exceptions in the bill of lading, without more, will not do the trick in a situation like this one. "[A] clean bill of lading merely attests to apparent good condition of cargo, based on external inspection." United States v. Lykes Bros. S.S. Co., 511 F.2d 218, 223 (5th Cir.1975). In circumstances where, as here, the actual condition of perishable

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commodities cannot adequately be gauged by the external appearance of the outer packaging, the shipper must produce some other (credible) evidence to show that the contents were up to snuff when loaded. Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 353-54 (2d Cir.1981); Compagnie de Navigation Fraissinet & Cyprien Fabre, S.A. v. Mondial United Corp., 316 F.2d 163, 169-70 (5th Cir.1963). The court below ruled that plaintiff had failed in this task. We demur.

Having reviewed the entire record with painstaking care, we find enough in the way of factbound controversy to forestall summary adjudication. Inasmuch as we believe that plaintiff is entitled to a plenary trial on the merits--a trial which...

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