St. Paul Fire & Marine v. MARINE TRANSP. SERVICES
| Decision Date | 14 December 1989 |
| Docket Number | No. 88-1817-Civ.,88-1817-Civ. |
| Citation | 727 F. Supp. 1438 |
| Parties | ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff, v. MARINE TRANSPORTATION SERVICES SEA-BARGE GROUP, INC., in personam, and the tug MR. JIM, her engines, tackles, boilers, appurtenances, etc., in rem, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
John D. Kallen, North Miami, for plaintiff.
Christopher R. Fertig, Fort Lauderdale, Alvaro L. Mejer, Coral Gables, for defendants.
THIS CAUSE comes before the Court on Defendant's, Marine Transportation Services Sea-Barge Group, Inc. (hereinafter "Sea-Barge"), Motion for Summary Judgment as to Counts II, III and IV of Plaintiff's Complaint; Plaintiff's, St. Paul Fire and Marine Insurance Company (hereinafter "St. Paul"), Cross-Motion for Summary Judgment as to Count IV of its Complaint; Sea-Barge's Motion to Strike Paragraph 6 of the Affidavit of Ann M. Montgomery; and St. Paul's Motion to Strike Sea-Barge's Supplement to Its Response to Plaintiff's Cross-Motion for Summary Judgment. For the reasons set forth below, this Court grants Sea-Barge's Motion to Strike; denies St. Paul's Motion to Strike; and grants summary judgment in favor Sea-Barge as to Counts II, III, and IV of Plaintiff's Complaint.
This is an admiralty and maritime claim within the meaning of Rule 9(h), Federal Rules of Civil Procedure, and this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1333.
Sea-Barge is a common carrier of cargo by water for hire doing business in Miami, Florida. Sea-Barge owns and operates the Defendant tug, Mr. Jim, and her tow, the barge Gulf Fleet 264. On or about December 4, 1987, the Defendants received for shipment in Miami, Florida, a 40 foot shipping container, number SCXU-464591-2, containing 459 packages of dry goods. Defendants agreed to transport and deliver said cargo to San Juan, Puerto Rico. During the course of the voyage, the cargo was lost overboard from the barge Gulf Fleet 264, which was then in tow by the tug Mr. Jim. The cargo was never recovered. As the insurer of the subject cargo, St. Paul paid the sum of $133,205.83, representing the fair market value of the cargo (less a $500.00 deductible), and has become subrogated to the rights and interests of the true owner of the cargo, T.A.S. Container Transport, Inc. (hereinafter "T.A.S."), entitling it to bring this action.
St. Paul asserts claims for breach of contract for carriage (Count I), breach of duty owed as a bailee (Count II), negligence (Count III), and breach of an insurance policy (Count IV). As to Counts II and III, Sea-Barge asserts as an affirmative defense that St. Paul's sole remedy exists under the Carriage of Goods by Sea Act (hereinafter "COGSA"), 46 U.S.C.App. § 1300 et seq., barring all other theories of liability, including theories of bailment and negligence.
As to Count IV, on which St. Paul and Sea-Barge seek summary judgment, St. Paul alleges that the ocean freight for the subject shipment which was charged to T.A.S., and fully paid, included the cost of insurance on the cargo up to $75,000.00. St. Paul further alleges that insurance was also provided under an Open Cargo Policy issued to Sea-Barge for the benefit of the shipper, T.A.S., and that the loss of the subject cargo was due to a peril and risk insured against by the Open Cargo Policy. As to Count IV, Sea-Barge asserts as affirmative defenses: that T.A.S. failed to request insurance coverage for the shipment in question and specifically rejected coverage; that T.A.S. failed to pay premiums for the insurance coverages demanded under Count IV; and that the insurance, if any, provided for in the tariff was to be "excess" insurance, that is, insurance in excess of any other collectible insurance.
St. Paul made a formal claim for payment under the insurance policies, and Sea-Barge refused to pay the sum allegedly due and owing. St. Paul seeks $133,205.83 in damages representing the fair market value of the cargo lost at sea (less a $500.00 deductible), and $75,000.00 representing the cost of insurance on the cargo together with prejudgment interest, costs, and reasonable attorneys' fees.1
Ann M. Montgomery is an office manager for T.A.S. As an office manager, Ms. Montgomery is responsible for the handling of claims submitted by various shippers of cargo which were covered under bills of lading issued by T.A.S. in its capacity as an NVOCC. In an affidavit dated January 9, 1989, Ms. Montgomery stated that she submitted a claim to Sea-Barge pursuant to a bill of lading issued by Sea-Barge, a true and correct copy of which was attached to her Affidavit as Exhibit "A."
Ms. Montgomery was deposed in Charlotte, North Carolina on June 14, 1989. Although the transcript of the deposition has not been made available to this Court, Sea-Barge's counsel states that Ms. Montgomery testified that the document previously attached as Exhibit "A" to her January 9, 1989 Affidavit, was not the bill of lading issued by Sea-Barge. According to counsel, Ms. Montgomery testified that this document was prepared by T.A.S. and forwarded to Sea-Barge.
St. Paul's counsel concedes that Ms. Montgomery did in fact testify that Exhibit "A" to her Affidavit was not issued by Sea-Barge, but was rather prepared by T.A.S. and then forwarded to Sea-Barge. However, St. Paul's counsel maintains that the basis for Sea-Barge's Motion is nothing more than mere semantics over the use of the term "issue." This Court disagrees.
St. Paul's counsel points to the deposition of Judy Dowling taken in Jacksonville, Florida on June 13, 1989. Ms. Dowling is the operations manager for Sea-Barge's office in Jacksonville. While the transcript of the deposition has not been made available to this Court, St. Paul's counsel states that Ms. Dowling testified that it was customary for shippers, such as T.A.S., to prepare a set of shipping documents provided by Sea-Barge, including a bill of lading, and to then forward the completed forms to Sea-Barge in Miami. Counsel maintains that the first page of this set of shipping documents, which corresponds to Exhibit "A" to Ms. Montgomery's Affidavit, is a true and correct copy of the bill of lading prepared and issued for the subject shipment of cargo.
A plain reading of this bill of lading (Exhibit "A" to the Affidavit of Ms. Montgomery) reveals that it contains a "Shipper's Export Declaration." As counsel for both parties are well aware, a "Shipper's Export Declaration shall be prepared and signed by the shipper, owner, or consignor or his or her properly authorized agent." 15 C.F.R. § 30.4 (1989). Hence, Sea-Barge, being the carrier of the cargo in question, was not authorized to prepare the "Shipper's Export Declaration." Accordingly, in the absence of any evidence to the contrary, this Court finds that T.A.S. "issued" the bill of lading attached as Exhibit "A" to Ms. Montgomery's Affidavit. This fact is corroborated by Ms. Montgomery's deposition testimony that this document was not the bill of lading issued by Sea-Barge. Rather, this Court finds, as Ms. Montgomery testified, that this document was the bill of lading prepared by T.A.S. and forwarded to Sea-Barge. Accordingly, based on the above and forgoing, this Court grants Sea-Barge's Motion to Strike.
St. Paul seeks to strike from this Court's consideration a supplement filed by Sea-Barge to its Response to St. Paul's Cross-Motion for Summary Judgment, in particular, the affidavit of Sea-Barge's counsel, Alvaro L. Mejer, and the attachments thereto. The Affidavit of Mr. Mejer reflects his receipt of the attachments which explain a typographical error which had been made in the numbering of the Carrier Insurance Company Limited's Open Cargo Policy. St. Paul's Motion is predicated in part on the grounds that the attachments to the affidavit, namely, correspondence from Christopher R. Fertig, correspondence from International Marine Casualty Services Incorporated, and a copy of the Open Cargo Policy, all constitute inadmissible hearsay.
In response to St. Paul's Motion, Sea-Barge offered a telefaxed Affidavit from Del R. Jones, President of Carrier Insurance Company Limited. The Affidavit is based on personal knowledge, and explains the typographical error which had been made in the numbering of the Open Cargo Policy. Given the Affidavit of Mr. Jones, this Court need not consider Sea-Barge's Supplement to its Response to Plaintiff's Cross-Motion for Summary Judgment, nor address the evidentiary objections thereto. Accordingly, St. Paul's Motion to Strike is denied.
Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A ruling on a summary judgment motion should be guided by the substantive evidentiary standard of proof that would apply at the trial on the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated against a party who, after adequate time for discovery and upon motion, fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, it is the Court's obligation to view the facts in the light most favorable to the non-moving party and to allow the non-moving party the...
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