COMPLAINT OF NORFOLK, BALTIMORE & CAROLINA LINE, INC.
Decision Date | 04 October 1979 |
Docket Number | Civ. A. No. 79-164-N. |
Court | U.S. District Court — Eastern District of Virginia |
Parties | In the Matter of the Complaint of NORFOLK, BALTIMORE & CAROLINA LINE, INC., as Owner of the TUG DOROTHY H and CONTAINER TRANSPORT # 1 for Exoneration from or Limitation of Liability. |
Walter B. Martin, Jr., Vandeventer, Black, Meredith & Martin, Norfolk, Va., for petitioner.
Francis N. Crenshaw, Crenshaw, Ware & Johnson, Norfolk, Va., for Maritime Terminals, Inc.
William B. Eley, Eley, Rutherford & Leafe, Norfolk, Va., Raymond P. Hayden, Hill, Rivkins, Carey, Loesberg & O'Brien, New York City, for Consolidated Fibres, Inc. and Manila Paper Mills, Inc.
R. Arthur Jett, Jr., Jett, Agelasto, Berkley, Furr & Price, Norfolk, Va., Kirlin, Campbell & Keating, New York City, for United States Lines, Inc.
On December 28, 1978, the Tug DOROTHY H and CONTAINER TRANSPORT # 1 arrived at Norfolk International Terminals, after journeying from Baltimore, Maryland. Shortly thereafter, CONTAINER TRANSPORT # 1 capsized and sank, dumping her cargo of containers into the water adjacent to her berth. Norfolk, Baltimore & Carolina Line, Inc. (NBC), a Virginia corporation, has filed this suit for exoneration from or limitation of liability, under the Limitation of Liability Act, 46 U.S.C. § 181-89 (1976),1 for all claims arising from this mishap.
Responding to NBC's Complaint, United States Lines, Inc. (US Lines), a Delaware corporation, filed a claim against NBC for $7,000,000, representing the amount of damage to 93 containers shipped by US Lines on CONTAINER TRANSPORT # 1, and other costs incurred by US Lines as a result of this incident. NBC has moved for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure. NBC seeks a ruling from this Court that, under the terms of the tariff and bill of lading, which formed the contract of carriage, any liability which NBC may ultimately have to US Lines is limited to $500 per container.
US Lines, through its authorized agent, contracted with NBC for the transportation of 96 containers from Baltimore to Norfolk, Virginia. Twenty-six of the containers were 20 feet in length and 70 were 40 feet in length. Two of the 40-foot containers were empty. All of the other containers held various commodities destined ultimately for other ports of the United States or ports abroad. These containers, the parties agree, were owned by US Lines, and were packed and sealed prior to their delivery to NBC by someone other than NBC or its agents. Thus, NBC was unable actually to observe the contents of these containers.
The first page of the bill of lading, prepared and signed by US Lines, contained the following provisions regarding NBC's liability:
In the blank provided for the declaration of excess liability, three x's were placed, apparently by US Lines. The reverse of the bill of lading contained the following provisions:
Beneath these provisions were half a page of lines upon which the shipper was invited to give a "description of Container/Trailer" and to declare its value. These lines were left blank.
As the quoted provisions indicate, the bill of lading expressly incorporated the Carriage of Goods by Sea Act (COGSA) to govern the rights and liabilities of the parties; but for this incorporation, COGSA would not apply to this shipment between two domestic ports. Such shipments generally are subject to COGSA's predecessor statute, the Harter Act, 46 U.S.C. § 190-95 (1976); however, Section 13 of COGSA, 46 U.S.C. § 1312 (1976), expressly authorizes the incorporation of COGSA into bills of lading governing domestic shipments, and further provides that any bill of lading which incorporates COGSA "shall be subjected hereto as fully as if subject hereto by the express provisions of this chapter."
COGSA establishes certain limitations of liability which apply to shipments subject to that Act:
NBC takes the position that its liability to US Lines is governed by COGSA, by reason of its incorporation by reference in the bill of lading; that each of the 93 containers is a separate "package" within the meaning of section 4(5) of that Act; and that its liability for damage to these containers and their contents accordingly is limited to $500 per container, absent a declaration of their higher value. Predictably, US Lines disputes this...
To continue reading
Request your trial-
Croft & Scully Co. v. M/V SKULPTOR VUCHETICH
...engendered much confusion and conflict among jurists. To date it remains unresolved. See, e. g., In re Complaint of Norfolk, Baltimore & Carolina Line, Inc., 478 F.Supp. 383 (E.D.Va.1979); Bissell, The Operational Realities of Containerization and their Effect on the "Package" Limitation an......
-
Mitsui & Co., Ltd. v. American Export Lines, Inc.
...cartons and not the containers are the packages. In another decision in the District Court for the Eastern District of Virginia, Complaint of Norfolk, Baltimore & Carolina Line, Inc., supra, 478 F.Supp. at 392, Judge Clarke concluded that the functional economics test presents "too narrow a......
-
Expeditors Intern. of Wash. v. Crowley Amer. Tran.
...carriage. See Lucchese v. Malabe Shipping Co., Inc., 351 F.Supp. 588, 591 (D.P.R.1972); In the Matter of the Complaint of Norfolk, Baltimore & Carolina Line, Inc., 478 F.Supp. 383, 386 (E.D.Va.1979). "Section 13 of COSGA expressly authorizes the incorporation of COSGA into bills of lading g......
-
First Nat'l Bank & Trust Co. of Crushing v. Hess Oil Virgin Islands Corp.
...Best, supra, 451 F.2d 800; Aluminios Pozuelo, Ltd. v. S.S. NAVIGATOR, 407 F.2d 152 (2d Cir. 1968); Complaint of Norfolk, Baltimore & Carolina Line, 478 F.Supp. 383 (E.D. Va. 1979); Omark Industries, Inc. v. Associated Container Transporta-tion (Australia) Ltd., 420 F.Supp. 139 (D. Or. 1976)......