Federal Ins. Co. v. Transconex, Inc.
| Decision Date | 12 May 1976 |
| Docket Number | Civ. No. 74-1379. |
| Parties | FEDERAL INSURANCE COMPANY, and Robert A. Clair Co., Inc., Plaintiffs, v. TRANSCONEX, INC., Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
COPYRIGHT MATERIAL OMITTED
Paul E. Calvesbert and Jiménez & Fusté, San Juan, P.R., for plaintiffs.
Pieras & Esteves, Hato Rey, P.R., for defendant.
This cause came to be heard on defendant Transconex, Inc.'s Motion for Summary Judgment and Memorandum dated August 22, 1975, and plaintiffs' Counter-Motion for Summary Judgment and Amended Motion in Opposition to Defendant's Motion for Summary Judgment dated September 26, 1975.
The motions for summary judgment were each accompanied by an affidavit sworn to by an authorized official and after careful consideration of the statements contained therein, the motions and briefs, we deem that the facts of the case are not in dispute.
On or about November 29, 1973 and December 2, 1973, the defendant, ("Transconex"), a non-vessel operating common carrier by water ("NVOCC"), moved the shipments object of the present controversy, under three bills of lading from the port of Jacksonville, Florida to the port of destination, San Juan, Puerto Rico, there to be consolidated in one trailer for delivery to Stratford of Puerto Rico., Inc. at Ciales, Puerto Rico.
The bills of lading, copies of which were annexed to defendant's Motion for Summary Judgment reveal that bill of lading J42156 dated November 29, 1973, covering 262 cartons of piece goods, shipped by plaintiff, Robert A. Clair Co., Inc. and consigned to Stratford of Puerto Rico, Inc. at Ciales, Puerto Rico, described the movement of the goods in a container on Voyage 174 aboard the Barge Jacksonville. The second bill of lading was J42366 dated December 2, 1973, covering 45 cartons of rib cotton cloth by the same shipper for the same consignee in a trailer to be carried aboard the Barge Fortaleza on Voyage 180. The third shipment consisted of 150 rolls of knitted or synthetic cloth involving the same parties, shipped under bill of lading J42395 dated December 2, 1973, and carried in a trailer on Voyage 180 of the Barge Fortaleza.
The present action was filed alleging that the defendant stripped the trailers after they arrived at San Juan and consolidated the three shipments into another trailer and while in the possession of the defendant, the said trailer and contents were destroyed by fire. Federal Insurance Co.'s claim is in subrogation for payment to Robert A. Clair Co., Inc. of $25,000 under an insurance policy. Robert A. Clair Co., Inc. claims the uninsured excess value of the shipment, $7,770.76, and the refund of $2,273.43 which it paid in freight. Transconex answered the complaint admitting the circumstances surrounding the shipments but denying it was negligent and the value of the shipments and further raising the defense that pursuant the terms of the three bills of lading and its tariff, it is only liable to pay the sum of $50.00 per bill of lading.
The parties conducted discovery and subsequently Transconex filed a Motion for Summary Judgment wherein it accompanies the bills of lading and recites the language on which its liability is allegedly limited to $50.00 per bill of lading. The defendant also admitted receiving the merchandise and that it was lost by fire. Transconex further states that there is no genuine issue as to any material fact and that summary judgment is proper. Defendant's Motion and Memorandum was sworn to by an officer of Transconex, Inc. who stated to have knowledge ". . . of all the facts and transactions dealing with the allegations made in the complaint . . ." including the facts surrounding the issuance and contents of the bills of lading and Transconex' tariff.
On the other hand, the plaintiffs opposed the summary judgment requested by the defendant and also moved for counter-summary judgment on the following grounds:
1) that there is no genuine issue as to any material fact except whether Transconex had a long-form bill of lading on file with the Federal Maritime Commission;
2) that as a matter of law and fact, the clause contained in the three bills of lading issued by Transconex limiting its liability to $50.00 per bill of lading movement, is illegal and contrary to law, specifically the Harter Act of the United States, Title 46, United States Code, Section 190, et seq., The Carriage of Goods by Sea Act ("COGSA"), Title 46, United States Code, Section 1300, et seq., The United States Shipping Act, Title 46, United States Code, Section 801, et seq., Section 2 of the United States Intercoastal Shipping Act of 1933, Title 46, United States Code, Section 844, and the Rules and Regulations of the Federal Maritime Commission, Title 46 C.F.R. 500, et seq.
3) that Transconex has not filed as required by Section 2 of the Intercoastal Shipping Act of 1933, Title 46, United States Code, Section 844, the regular long-form bill of lading containing the terms and conditions of the transportation agreement.
4) that since the regular long-form bill of lading has not been filed as required by Section 2 of the Intercoastal Shipping Act of 1933, supra, the three short-form bills of lading issued by the defendant are null and void; and
5) that since the three short-form bills of lading are null and void, the defendant failed to issue a valid bill of lading and its liability towards the plaintiffs is in the nature of an insurer and hence, absolute.
To the contrary, the defendant in its briefs opposes the summary judgment requested by the plaintiff on the following grounds:
1) That the Harter Act, supra, and cases decided thereunder, and not COGSA, supra, governs the shipment and permits the carrier to limit its liability to a stated sum.
2) That the $50.00 per bill of lading limitation of liability is valid since the carrier offers alternatives in the form of an option to declare the true value of the goods and pay a higher freight rate or to provide all risk insurance at a cost of $.65 per $100.00 valuation.1
3) That the Intercoastal Shipping Act of 1933 does not require that a long-form bill of lading be filed; and
4) That Transconex has fully met the legislative purposes of the Intercoastal Shipping Act of 1933, since its short-form bill of lading states it is subject to the terms and conditions of the Tariff.
Both parties have filed briefs in support of their respective contentions which we will discuss at length since the issues raised are novel to this jurisdiction.
The loss in this case arises from three separate shipments under three bills of lading issued for ocean carriage from Jacksonville, Florida to San Juan, Puerto Rico. The law applicable ex proprio vigore to coastwise traffic, which includes maritime traffic between ports in the United States and Puerto Rico, is the Harter Act of 1893, Title 46, United States Code, Section 190, et seq., Fireman's Insurance Co. of Newark, N.J. v. Gulf Puerto Rico Lines, 349 F.Supp. 952, 954 (D.C.P.R.1972); Empacadora Puertorriqueña de Carnes v. Alterman Transport Line, et al., 303 F.Supp. 474 (D.C. P.R.1969). Since neither the short-form bills of lading nor the defendant's tariff incorporates COGSA into the contract of carriage as is permissible by virtue of Section 13 of said Act, we must understand that the carriage is governed by the Harter Act. Therefore, we are not compelled to examine the validity of the limitation clause under the provisions of Section 4(5) of COGSA, Title 46, United States Code, Section 1304(5) which controls the $500-per-package or customary freight unit limitation. We must however, analyze the limitation within the context of the Harter Act and the case law.
In our case, Transconex' short-form bill of lading provides as follows as evidenced by its Motion for Summary Judgment and Memorandum, Exhibits 1A, B and C:
The provision contained in the tariff referred to above is as follows:
2
Before embarking on an analysis of the pertinent statutes and uniform general maritime law which disposes of this case, the status of the defendant as a carrier must be established. Transconex acts as a non-vessel operating common carrier by water (NVOCC) and as such, filed a tariff schedule with a regulatory agency, the Federal Maritime Commission. In general, an NVOCC assembles less-than-trailer load (LTL) shipments into a single container for delivery to an ocean carrier. The NVOCC at the port of destination then removes and sometimes consolidates again the...
To continue reading
Request your trial
-
General Elec. Co. v. Priority Transport Services Inc.
...the Carmack Amendment to limit a carrier's liability or simply one rate with or without insurance (see, Federal Ins. Co. v. Transconex, 430 F.Supp. 290). Moreover, there continues to remain a factual dispute as to the actual rate which was to be charged and whether General Electric affirmat......
-
Fireman's Fund Ins. Co. v. Crowley Liner Serv. Inc., CIV. NO. 08-1745(PG)
...and the Commonwealth of Puerto Rico are not governed by COGSA, but are instead governed by the Harter Act. Federal Ins. Co. v. Transconex, Inc., 430 F.Supp. 290, 293 (D.P.R. 1976). Nonetheless, it has been held that where bills of lading expressly incorporate the terms of the COGSA, the rul......
-
Hanover Ins. Co. v. Shulman Transport Enterprises, Inc.
...limitation of COGSA as interpreted by this court to cover one trailer unit." (citations omitted) Federal Insurance Company v. Transconex, Inc., 430 F.Supp. 290, 295 (D.P.R.1976). The filing of Shulman's "Rules and Regulations FMC-F-No. 1" with the FMC does not give support to Shulman's posi......
-
David R. Webb Co., Inc. v. M/V HENRIQUE LEAL
...67 S.Ct. 194, 91 L.Ed. 666 (1946) (quoting The Steel Inventor, 35 F.Supp. 986, 998 (D.Md.1940)). See also Federal Ins. Co. v. Transconex, Inc., 430 F.Supp. 290, 295 (D.P.R.1976) (stipulations on a bill of lading designed to limit the amount of the carrier's liability pursuant to COGSA gener......