Generali v. D'Amico

• Citation: 766 F.2d 485
• Decision Date: 23 July 1985
• Docket Number: No. 84-5743,84-5743
• Parties: Assicurazioni GENERALI, Plaintiff/Appellant v. D'AMICO and Harrington & Company, Inc., jointly and severally, Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 485

766 F.2d 485

1986 A.M.C. 1051

Assicurazioni GENERALI, Plaintiff/Appellant v. D'AMICO and Harrington & Company, Inc., jointly and severally, Defendants/Appellees.

No. 84-5743.

United States Court of Appeals, Eleventh Circuit.

July 23, 1985.

Alvaro L. Mejer, Armstrong & Mejer, P.A., Coral Gables, Fla., for plaintiff/appellant.

Mark D. Greenberg, Thomas B. Bourque, Stinson, Lyons & Schuette, P.A., Allan R. Kelley, Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, Fla., for defendants/appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and THOMAS ^*, District Judge.

DANIEL HOLCOMBE THOMAS, District Judge:

This is an appeal from a summary judgment entered by the United States District Court for the Southern District of Florida limiting defendants, D'Amico and Harrington & Co., Inc., liability to $500 per carton under the Carriage of Goods by Sea Act, 46 U.S.C. Sec. 1304(5), as incorporated into D'Amico's bill of lading. We affirm.

On January 24, 1984, D'Amico, an ocean carrier, issued a bill of lading covering two packages containing water demineralizing equipment. In consideration for an agreed freight, D'Amico contracted with the shipper to transport and carry the cargo from Genoa, Italy, to Miami, Florida. The consignee, Cristalum Transamerica Corporation, insured the two packages with Assicurazioni. On February 12, 1983, D'Amico's vessel arrived in Miami and the packages were offloaded by Harrington & Co., Inc. which had been engaged by D'Amico to provide stevedoring and terminal operator services. The two packages were stored in Harrington's warehouse facility for eighteen days, until March 1, 1983, at which time the consignee arrived to take delivery. As Harrington was loading the cargo onto the consignee's truck, one package fell and its contents damaged. Harrington admitted negligence in the damage to the cargo. The consignee then notified its insurer of its claim for cargo damage. As insurer, Assicurazioni paid the consignee for said damage and became subrogated to the rights of the insured consignee. Assicurazioni then brought this action in Admiralty pursuant to 28 U.S.C. Sec. 1333.

The bill of lading under which the cargo was shipped provided that the rights and liabilities of the parties to the bill of lading would be governed by the Carriage of Goods by Sea Act, 46 U.S.C. Sec. 1301, et seq., (COGSA). Coverage under COGSA was extended by the terms of the bill of lading to the point of delivery to the consignee and the $500 per package limitation of liability provision, 46 U.S.C. Sec. 1304(5), expressly reiterated. The bill of lading also contained a "Himalaya" clause which purported to extend all limitations provided by law or by the terms of the bill of lading to any party adjudged a carrier and/or bailee of the cargo.

The District Court found that, although Harrington did not fit within the definition of "carrier" as set forth in the bill of lading, Harrington could benefit from the limitation of liability provisions contained in D'Amico's bill of lading and COGSA, 46 U.S.C. Sec. 1304(5), due to the fact that Harrington was adjudged to be a bailee of the subject cargo. The District Court found Harrington liable for the damage to the cargo to the extent of $500 per package. This appeal follows.

The issue presented is whether the District Court erred in concluding that the terms of the bill of lading expressed a clear intent to extend limitation of liability benefits to Harrington.

Section 4(5) of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. Sec. 1304(5), provides that:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in conjunction with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.

It must be noted, however, that the limitation of liability provision contained in 46 U.S.C. Sec. 1304(5) is applicable only to carriers and ships. The term "carrier" is defined as including "the owner or the charterer who enters into a contract of carriage with a shipper." 46 U.S.C. Sec. 1301(a). Since stevedores, terminal operators, freight handlers and other agents of the carrier do not come within this definition they are not automatically afforded the limitation of liability benefits provided by 46 U.S.C. Sec. 1304(5). See Robert C. Herd & Co., Inc. v. Krawill Machinery Corp., 359 U.S. 297, 302, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959). In Herd, the Supreme Court found "nothing in the provisions, legislative history and environment of the Act" to indicate any intention "to limit the liability of negligent agents of the carrier."

Although COGSA does not operate to afford limitation of liability benefits to agents of the carrier, it is, however, well settled that parties to a bill of lading may contractually extend limitation of liability benefits to non-carriers and agents of the carrier. See Robert C. Herd & Co., Inc. v Krawill Machinery Corp., supra, at 302, 305, 79 S.Ct. at 769, 771; Secrest Machine Corporation v. S.S. Tiber, 450 F.2d 285, 286 (5th Cir.1971); Rupp v. International Terminal Operating Co., Inc., 479 F.2d 674 (2d Cir.1973).

Bill of lading provisions which extend defenses and protections to the carrier's agents and contractors are known in Admiralty law as "Himalaya" clauses. Clauses such as these, which purport to limit the liability of carrier's agents or contractors, must be "strictly construed and limited to intended beneficiaries." Robert C. Herd & Co. v. Krawill Machinery Corp., supra, 359 U.S. at 305, 79 S.Ct. at 771. The clause itself must clearly express the understanding of the contracting parties through the "clarity of language used." Id. The "clarity of language" requirement does not mean, however, that the limitation of liability benefits extend only to parties specifically enumerated in the bill of lading. "It is sufficient that the terms express a clear intent to extend benefits to a well-defined class of readily identifiable persons." Certain Underwriters at Lloyds' v. Barber Blue Sea Line, 675 F.2d 266, 270 (11th Cir.1982).

On appeal, the insurer, Assicurazioni, contends that the District Court erred in allowing Harrington to benefit from the limitation of liability provision in D'Amico's bill of lading. Assicurazioni argues that the bill of lading failed to express a clear intent to benefit Harrington since the bill of lading did not specifically refer to "terminal operators", "freight handlers" or "stevedores".

The bill of lading in the instant case, in pertinent part, provides:

1. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase in any of its responsibilities under said Act.... The provisions in said Act shall ... govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the Carrier. The Carrier shall not be liable in any capacity whatsoever for any delay, nondelivery or misdelivery or loss of or damage to goods occurring while the goods are not in the actual custody of the Carrier. (emphasis added).

2. ... The word "Carrier" shall include the ship, her owner, Master, operator, demise charterer, and if bound hereby the time charterer, and any substituted Carrier, whether the owner, operator, or Master shall be acting as Carrier or Bailee ...

18. ... In case of any loss or damage ... the value of the goods shall be deemed to be $500.00 per package ... and the Carrier's liability, if any, shall be determined on the basis of $500.00 per package....

21. ... If, however, it shall be adjudged that any other than the owner or demise charterer is Carrier and/or Bailee of the goods all limitations of and exonerations from liability provided by law or by the terms hereof shall be available to such other. (emphasis added).

In support of its contention, Assicurazioni relies on De Laval Turbine, Inc. v. West India Indus., Inc., 502...