Mikinberg v. Baltic S.S. Co.

Decision Date10 March 1993
Docket NumberD,No. 343,343
Citation988 F.2d 327
Parties, 1993 A.M.C. 1661 Motel MIKINBERG, Plaintiff-Appellant, Vitaly Mikinberg, Mark Mikinberg, Plaintiffs, v. BALTIC STEAMSHIP CO., Rice Unruh, Reynolds Company, Individually, and as agents for Baltic Steamship Co., UTS, a division of Universal Maritime Services, Defendants-Appellees. ocket 92-7681.
CourtU.S. Court of Appeals — Second Circuit

Joseph F. De May, Jr., New York City (R.R. Timothy Swiecicki, Cichanowicz, Callan & Keane, of counsel), for defendants-appellees Baltic S.S. Co., Rice Unruh, and Reynolds Co.

Edward J. McCarren, New York City, for defendant-appellee Universal Maritime Services.

Before: PRATT and ALTIMARI, Circuit Judges, and GERALD W. HEANEY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

ALTIMARI, Circuit Judge:

Plaintiff-appellant Motel Mikinberg appeals pro se from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) granting summary judgment to defendants-appellees Baltic Steamship Company, Rice Unruh, and Reynolds Company (collectively "Baltic" or "the Baltic defendants") and defendant-appellee Universal Maritime Services ("Universal"). The district court dismissed Mikinberg's complaint based on its finding that Mikinberg failed to file a timely claim under the one-year statute of limitations of the Carriage of Goods by Sea Act ("COGSA") 46 U.S.C.App. § 1303(6) (1988). On appeal, Mikinberg contends that Baltic should be estopped from asserting the statute For the reasons set forth below, the judgment of the district court is reversed and the case remanded.

                of limitations as a defense because he was misled into believing that the time limit would be extended while an investigation was being processed.   We also consider whether COGSA's provisions apply to Universal as an agent of the carrier
                
BACKGROUND

Motel Mikinberg and two of his relatives ("the Mikinbergs") arranged in late 1989 for Baltic to ship their personal effects from Russia to New York City. A bill of lading was issued on December 8, 1989, naming E. Gordover as the consignee. The bill of lading describes the shipment as two cases of "personal effects," and includes in Paragraph 18 an express provision that all defenses applicable to the carrier of the goods are applicable to agents of the carrier.

Baltic operated the M.V. Warnemunde, the vessel that transported the Mikinbergs' goods. The Warnemunde arrived in the United States on January 8, 1990 and left the United States the next day. The Mikinbergs' cargo was deposited at the Red Hook Terminal in Brooklyn, New York, and was available for delivery beginning on January 9, 1990.

The shipment was placed in the custody of defendant-appellee Universal Maritime Services ("Universal"), which performed stevedoring and terminal services. It is unclear from the record whether Universal performed these services pursuant to a contract with the Red Hook Terminal or with the Baltic defendants. At different points in its brief and in prior documents, Universal claims a contractual relationship with Baltic, but there is no evidence of such a contract in the record.

When the Mikinbergs and the consignee presented the bill of lading to Universal on May 10, 1990, they were directed to Baltic's offices. An agent for Baltic informed the Mikinbergs that Universal had released the baggage to someone using false documentation, and advised them to file a claim for any damages against Universal. Universal confirmed that it had released the Mikinbergs' belongings without verification of the forged papers presented to the terminal operator.

On or about January 28, 1991, Motel Mikinberg filed through counsel a summons and complaint on behalf of himself and his relatives against the Baltic defendants and Universal in New York state court. Mikinberg has stated that the suit was filed over a year after the delivery of the cargo because he was told to wait until Baltic and Universal had completed an investigation into the disappearance of the shipments. Baltic successfully removed the case to the United States District Court for the Eastern District (Glasser, J.) on March 7, 1991.

The Baltic defendants moved for summary judgment on November 29, 1991, asserting three bases for the motion: (1) that the action was time barred under COGSA, 46 U.S.C.App. § 1303(6), since it was brought more than one year after the delivery of the Mikinbergs' goods; (2) that the Mikinbergs lacked standing to sue, since they were not named on the bill of lading; and (3) that their carrier liability was limited under COGSA to $500.00 per package. Universal filed a motion for summary judgment asserting the same grounds, alleging that it was similarly protected by COGSA because the language of the bill of lading extended COGSA protections to it as an agent of Baltic.

On December 17, 1991, counsel for Mikinberg moved to be relieved, citing unfamiliarity with Russian and Yiddish. This motion was granted on December 31, 1991 and Mikinberg proceeded with the litigation pro se. According to the docket sheets, Mikinberg's counsel never filed a memorandum in opposition to the motions for summary judgment. Moreover, there is no indication that the Mikinbergs were present at the hearing on the motion.

On May 11, 1992, the district court granted the motion for summary judgment solely on the basis that Mikinberg had failed to file the claim within the one-year statute of limitations proscribed by COGSA, 46 Mikinberg now appeals pro se, arguing that the statute of limitations should have been extended for the period during which the defendants-appellees investigated the disappearance of the shipped packages. Alternatively, he argues that Baltic and Universal are estopped from asserting the statute of limitations defense because they misled Mikinberg into thinking that the statute would be extended.

                U.S.C.App. § 1303(6), and incorporated into the bill of lading by the parties.   The district court extended the protection of the bill of lading to Universal as an agent of Baltic
                
DISCUSSION

We review the district court's grant of summary judgment de novo. Trans-Orient Marine Corp. v. Star Trading and Marine, Inc., 925 F.2d 566, 572 (2d Cir.1991). We must "resolve all ambiguities and draw all reasonable inferences in favor" of the non-moving party, and require "the moving party to demonstrate the absence of any material factual issue genuinely in dispute." Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975).

I. COGSA's Statute of Limitations

The Carriage of Goods by Sea Act is applicable to all contracts for carriage of goods by sea or from ports of the United States in foreign trade. 46 U.S.C.App. § 1312 (1988). COGSA governs the responsibilities and liabilities of Baltic, the carrier in this case, since Baltic transported the Mikinbergs' shipment from a foreign port to a port of the United States. With regard to Baltic, COGSA provides for a one-year statute of limitations on all actions commenced under the statute:

[T]he 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....

46 U.S.C.App. § 1303(6). Moreover, the bill of lading specifically preserves all COGSA defenses for the carrier.

There is no dispute that the Warnemunde discharged the Mikinbergs' cargo on either January 8, 1990 or January 9, 1990, or that the Mikinbergs received notice that the shipment had arrived. Baltic argues that under § 1303(6), the suit by the Mikinbergs filed on January 28, 1991 was clearly untimely, and that summary judgment was appropriate.

It is also undisputed that COGSA's statute of limitations applies in this case. However, there is a factual issue as to whether the Mikinbergs were misled into believing that the statute would be extended while the Baltic defendants and Universal conducted an investigation into the disappearance of their goods. Mikinberg contends that he was told that the statute of limitations would be extended while the investigation of the missing shipment was being processed by the defendants-appellees:

Lawyers and investigator (sic) were busy with this case for more than one year and were not in a hurry to bring this action to Court. I was told that the one year period of statute of limitations should be extended while the investigation is (sic) being processed.

Mindful of Mikinberg's difficulty with English and his status as a pro se litigant, we construe his arguments liberally. C.f., Dunlap-McCuller v. Riese Organization, 980 F.2d 153 (2d Cir.1992); Dell'Orfano v. Ramano, 962 F.2d 199, 203 (2d Cir.1992). In that light, Mikinberg argues that the defendants should not be allowed to assert the statute of limitations as a defense because Mikinberg awaited the results of the investigation to reveal who was at fault before filing suit.

We reject Mikinberg's argument that the statute of limitations under COGSA should be extended during such investigations. A statute of limitations lends certainty and finality to prospective litigation, see United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979), and if mere investigation by the defendant could toll the time for filing, this certainty and finality would be diminished.

Mikinberg's alternative argument, that Baltic is estopped from claiming a statute of limitations defense, is more persuasive. Cf. Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 234, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959) (applying estoppel to FELA statute of limitations). A defendant will be estopped from asserting the COGSA statute of limitations as a defense where a plaintiff can show that he was misled by the defendants into reasonably and justifiably...

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