Davis Elliott Intern., Inc. v. PAN AM. CONTAINER, Civ. A. No. 82-1341.
| Decision Date | 13 August 1982 |
| Docket Number | Civ. A. No. 82-1341. |
| Citation | 1983 AMC 516,546 F. Supp. 1068 |
| Parties | DAVIS ELLIOTT INTERNATIONAL, INC. v. PAN AMERICAN CONTAINER CORP. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Daniel B. Pierson, Philadelphia, Pa., for plaintiff.
James W. Johnson, Philadelphia, Pa., for defendant.
Presently before the court are a claim by plaintiff for damages based on breach of contract and violation of Carriage of Goods by Sea Act (COGSA) 46 U.S.C. § 1300 et seq., and a denial of liability by defendant based on the statute of limitation provision of COGSA which bars this action. The central issue is whether plaintiff's claims are governed by common law or by COGSA. The parties agree that they have concluded their presentation of the case by the pleadings, memoranda filed by them and that there is no further evidence to be presented to the court and the matter is ripe for adjudication. This court concludes that plaintiff's claims are governed by COGSA and are also time-barred by its application.
According to the complaint in this action, on September 12, 1980, plaintiff entered into a contract to act as a shipper for various hardware to be delivered to defendant's warehouses in New Jersey where defendant was to containerize the goods before carrying them to Nigeria. The defendant allegedly failed to containerize the goods, which caused most of the hardware to be lost, stolen or damaged. The plaintiff was allegedly forced to repay the purchase price to its customer in Nigeria, and plaintiff allegedly sustained further losses.
The Bill of Lading set forth on its face in black bold print the following: "This Bill of Lading subject to all the stipulations, agreements and conditions hereon set forth on both sides hereof." Also on the face the following sentence concludes the paragraph acknowledging receipt for goods: "All of the provisions written, printed or stamped on either side hereof are part of this Bill of Lading contract." On the back of this Bill of Lading, Clause I provides that the Bill is subject to provisions of COGSA.
In addition to this recitation of the applicability of COGSA, the statute itself provides that "every bill of lading ... which is evidence of a contract for the carriage of goods by sea to and from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter." 46 U.S.C. § 1300. See 42 U.S.C. § 1312. The term "carriage of goods" covers the period "from the time when the goods are loaded on to the time when they are discharged from the ship." 46 U.S.C. § 1301. The Bill of Lading in the case sub judice represented a contract for shipping goods loaded in the United States and discharged in Nigeria and was, therefore, a contract within the purview of the COGSA.
The plaintiff claims that the Bill of Lading was not issued until after the goods had been received and prepared for carriage to Nigeria, and that the printing on the reverse side of the Bill of Lading is so small as to be unintelligible. The court agrees with plaintiff's contention as to the printing being almost unintelligible. However, plaintiff is experienced in the business of selling goods for transport from the United States to foreign countries. The provisions and purposes of COGSA are well known to such businessmen.
The plaintiff also claims that the agreement which was breached is not within the provisions of the COGSA, the oral agreement to containerize having occurred prior to the issuance of the Bills of Lading. A similar claim was made in the case of Miller Export Corporation v. Hellenic Lines Ltd., 534 F.Supp. 707 (S.D.N.Y.1982). There, the shipper brought an action against a carrier and alleged that its claims based upon fraud, negligence and breach...
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Keh Tong Chen v. Attorney Gen. of United States
... ... Civ. A. No. 82-0010 ... United States District ... ...
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Davis Elliott Intern., Inc. v. Pan American Container Corp.
...held that plaintiff's claims are covered by COGSA and are also time barred by its application. Davis Elliott International, Inc. v. Pan American Container Corp., 546 F.Supp. 1068 (E.D.Pa.1982). Neither the order nor the opinion of the district court states under which provision of the Feder......