Amazon Produce Network, LLC v. M/V Lykes Osprey

• Decision Date: 10 April 2008
• Docket Number: Civil Action No. 06-cv-4342.
• Citation: 553 F.Supp.2d 502
• Parties: AMAZON PRODUCE NETWORK, LLC, Plaintiff, v. M/V LYKES OSPREY and Montemar Maritima S.A., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

553 F.Supp.2d 502

AMAZON PRODUCE NETWORK, LLC, Plaintiff, v. M/V LYKES OSPREY and Montemar Maritima S.A., Defendants.

Civil Action No. 06-cv-4342.

United States District Court, E.D. Pennsylvania.

April 10, 2008.

COPYRIGHT MATERIAL OMITTED

Eugene J. Maginnis, Jr., Dugan Brinkmann Maginnis & Page, Philadelphia, PA, for Plaintiff.

Charles P. Neely, Wright & O'Donnell, Conshohocken, PA, for Defendant Montemar Maritima S.A.

MEMORANDUM AND ORDER

JOYNER, District Judge.

Presently before the Court is Defendant Montemar Maritima S.A.'s Motion for Summary Judgment (Doc. No. 11), Plaintiff Amazon Produce Network, LLC's Response (Doc No. 13), Defendant's Reply (Doc. No. 16), and Plaintiffs Surreply (Doc. No. 17). For the reasons set forth below, the Court DENIES Defendant's Motion.

BACKGROUND

This case involves a claim for damage to a shipment of mangoes carried by sea on the M/V Lykes Osprey from Salvador, Brazil to Houston, Texas. Plaintiff Amazon Produce Network, a fruit importer, is the consignee of the damaged cargo. Sometime prior to August, 2005, Amazon Produce arranged for transport of a shipment of mangoes, to be shipped by Muranaka Comercio Import Export L.T.D.A., from Brazil to the United States with Defendant Montemar Maritima, also known as Libra Shipping. Montemar then chartered space for the shipment on the M/V Lykes Osprey, and informed Muranaka and Amazon that the ship would depart the port of Bahia in Salvador, Brazil, on August 29, 2005. Amazon was advised to have its mangoes ready at the port for loading and departure by August 26, 2005, for loading onto the vessel.

On August 23, 2005, Montemar informed Muranaka and Amazon that the Lykes Osprey would be delayed in its arrival at Salvador. Thus, Montemar stated that the Lykes Osprey would arrive in Salvador instead on August 31, 2005. According to Amazon, based on this information the mangoes at issue were harvested, specifically for this shipment, two days before this date. Amazon asserts that on August 30, 2005, the mangoes were packed in two shipping containers and delivered to the port in preparation for loading on the Lykes Osprey when it arrived the following day.

However, the Lykes Osprey did not in fact arrive in Salvador until September 9, 2005, purportedly because of delays in previous ports on its way to that port. It is undisputed that neither Muranaka nor Amazon were informed of this delay, though Montemar claims the progress of the ship could have been tracked at the request of the shipper. At this point, according to Amazon, the mangoes had a post-harvest age of roughly thirteen days. The shipment was loaded onto the Lykes Osprey, which departed that day for Houston via the Gulf of Mexico. On September 18, 2005, the National Weather Service released an advisory that Tropical Storm Rita had developed into Hurricane Rita, a category 3 hurricane located in the Gulf of Mexico. As a result of the developing severe weather, the port of Houston was closed to all vessel traffic on September 21, 2005. To avoid the storm, the Lykes Osprey diverted to Altamira, Mexico, where it discharged its cargo to await the reopening of the Houston port. According to Plaintiff, Muranaka and Amazon were informed that the mangoes were to be loaded on the TMM Colina to bring the shipment from Altamira to Houston.

Upon being notified that the port was to reopen, however, Montemar arranged for the mango containers to be loaded on the M/V Libra Santos, not the TMM Colina, to finish the journey to Houston.¹ Plaintiff claims that this caused further delay because it needed to secure documentation for the Department of Homeland Security and U.S. Department of Agriculture reflecting the new shipping arrangement. In any event, it is undisputed that the Libra Santos arrived in Houston on October 7, 2005, and discharged the cargo on October 8, 2005. At this point, the postharvest age of the mangoes was approximately forty days, far longer than the twenty-five day limit recommended by the Department of Agriculture.

On October 13, 2005, the mangoes were retrieved by the Plaintiff, who found them to be in a significantly deteriorated condition. Plaintiff alleges that the lag in time between the cargo's discharge and its retrieval from the port was due to a failure on Defendant's part to communicate that the mangoes were shipped via the Libra Santos, rather than the Colina.

This Lawsuit

Plaintiff Amazon Produce filed its Complaint against Defendants on September 28, 2006, alleging that the mangoes being imported into the United States were made unsaleable as a result of certain breaches by Defendants of their obligations as a common carrier of the goods. Plaintiff alleges that under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.App. § 1300 et seq. and the Harter Act, 46 U.S.CApp. §§ 190-96, Defendants are liable for the damages sustained by the mango shipment because, inter alia, they failed to provide a seaworthy place for the care, handling, stowage, and carriage of the shipment, and "did not use proper care under the circumstances." More specifically, Plaintiff asserts that Defendants were negligent in failing to warn it of the lateness of the vessel coming into Salvador, Brazil to pick up the shipment, and in failing to inform it of the actions taken in response to the development of Hurricane Rita and the resulting closure of the Houston ports. Plaintiffs assert that as a result of these actions or omissions, the shipment time was extended so long that the mangoes rotted before they could be retrieved and sold.

On May 10, 2007, Defendant Montemar Maritima filed its Motion for Summary Judgment. Montemar asserts that COGSA is the only relevant statute, and that under COGSA, it cannot be held liable because the damage was caused by a combination of the effects of Hurricane Rita and the natural deterioration of the mangoes over time. Montemar also argues that the Bill of Lading it issued when it picked up the mango shipment contains a "Liberties Clause," which explicitly absolves the shipping company of any liability for damage due to delay in arriving at the final destination.

STANDARD OF REVIEW

It is recognized that the underlying purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). Summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if there is sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Id., quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir.1998). In conducting our review, we view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 535 (3d Cir.2007). However, there must be more than a "mere scintilla" of evidence in support of the non-moving party's position to survive the summary judgment stage. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

DISCUSSION

Plaintiff argues that Defendant acted negligently, in two instances, and that these negligent acts or omissions caused the loss of the mangoes in saleable condition. Plaintiffs primary allegation is that Defendant was negligent; in failing to inform either Muranaka (the shipper) or Amazon (the consignee) of the Lykes Osprey's delayed arrival into Salvador, Brazil for pickup of the mangoes. Plaintiff asserts that if it had known of the delay, it would have either waited to harvest the mangoes for shipment, or sold the already-harvested mangoes in Brazil and thereby mitigate the financial damages. Second, Plaintiff argues that Defendant was negligent in providing insufficient information and warning about the diversion to Altamira, Mexico caused by the development of Hurricane Rita. Plaintiff asserts that Defendant should have contacted it for advice about how to proceed, so that Plaintiff could have made alternative shipping arrangements or sold the mangoes in Mexico. Finally, Plaintiff seems to assert that the delay at Altamira was longer than needed because it was possible for the ship to arrive in Houston earlier, or to select another U.S. port as a destination for the mango shipment. With all of these assertions, Plaintiff is essentially claiming that Defendant's negligence in failing to properly inform it about the route and schedule of the mango shipment was the proximate cause of the mangoes rotting before they could be delivered to the United States in a saleable condition.

I. COGSA is the Applicable Law

The Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 30701 et seq., provides an exclusive remedy for damage to cargo incurred during carriage between foreign and United States ports. Timbauba Agricola S.A. v. M/V Cap San Raphael, 2004 WL 2755541, at *2 (E.D.Pa. Dec. 2, 2004) (citing Polo Ralph Lauren, L.P. v. Tropical Shipping & Constr. Co., 215 F.3d 1217, 1220-21 (11th Cir.2000)). It is undisputed that Defendant's actions after the mangoes were loaded in Brazil and before they were discharged in Houston fall within the scope of COGSA. Indeed, COGSA by its terms applies to the "tackle-to-tackle" period — that is, from the time when the goods are loaded on the vessel to the time that they are discharged at the final destination. 46 U.S.C. § 30701; See also Sompo Japan...