Marco Realini v. Contship Containerlines, Ltd.

• Decision Date: 07 July 1999
• Docket Number: No. 97-0104-CIV.,97-0104-CIV.
• Citation: 143 F.Supp.2d 1337
• Parties: Marco REALINI individually and f/u/b/o Royal Marine Yacht Underwriters, Plaintiff, v. CONTSHIP CONTAINERLINES, LTD., Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1337

143 F.Supp.2d 1337

Marco REALINI individually and f/u/b/o Royal Marine Yacht Underwriters, Plaintiff, v. CONTSHIP CONTAINERLINES, LTD., Defendant.

No. 97-0104-CIV.

United States District Court, S.D. Florida.

July 7, 1999.

Michael Charles Black, William E. Cassidy, Miami, FL, for Marco Realini, individually and f/u/b/o/ Royal Marine Yacht Underwriters, plaintiffs.

Thomas Vincent Halley, Halley & Halley, Key Biscayne, FL, for Contship Containerlines, Ltd., defendants.

ORDER

NESBITT, District Judge.

This cause comes before the Court upon Magistrate Judge Barry L. Garber's Order Granting Plaintiff's Motion for Partial Summary Judgment as to Liability, filed August 17, 1998 (D.E.# 31), which relates to Plaintiff's Motion for Partial Summary Judgment as to Liability (D.E.# 16); Magistrate Judge Garber's Report and Recommendation, filed November 6, 1998 (D.E.# 37), regarding Defendant's Motion for Partial Summary Judgment as to damages (D.E.# 14); and Defendant's Motion for Extension of Time to Complete Mediation (D.E.# 40).

BACKGROUND

On approximately November 18, 1996, Plaintiff Marco Realini, individually and f/u/b/o Royal Marine Yacht Underwriters ("Realini"), commenced this action in Dade County Circuit Court.

On approximately November 16, 1995, Defendant Contship Containerlines, Ltd. ("Contship") received certain cargo for transportation from Italy to Miami, Florida. The cargo consisted of Realini's 43-foot yacht "and all of its engines, equipment, appurtenances, etc." Complaint, ¶ 6. Contship received the cargo in good condition, but delivered it to its Miami destination in a damaged condition. Realini demands $21,435.23 in damages based on three legal theories: negligence, breach of bailment, and breach of contract of carriage.

On January 15, 1997, Contship removed the action to this Court because Realini's claims for loss of or damage to cargo during maritime transportation arise under the Carriage of Goods by Sea Act, 46 U.S.C.App. §§ 1300-15 ("COGSA"), or the Harter Act, 46 U.S.C.App. § 190-96.¹

DISCUSSION

Summary judgment standard

A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir.1999); Campbell v. Sikes, 169 F.3d 1353, 1361 (11th Cir.1999). The movant bears the initial responsibility of informing the Court of the basis for its motion and of identifying those materials which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In response to a properly supported motion for summary judgment, "the adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts which show a genuine issue for trial." Fed.R.Civ.P. 56(e). If the non-moving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then the Court must enter summary judgment for the moving party. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. The Court, however, must view the evidence and factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. See Maniccia, 171 F.3d at 1367.

"By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis added). The Court is not to resolve factual issues, but may only determine whether factual issues exist. A material fact is one which "might affect the outcome of the suit under the governing law...." Id. at 248, 106 S.Ct. at 2510. Therefore, the inquiry is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511.

Applicability of COGSA

The parties agree that COGSA governs Realini's claims. As Magistrate Judge Garber noted, however, COGSA does not apply by its own terms, but instead applies only by virtue of its incorporation in the relevant bill of lading. See Report and Recommendation, at 5-6.

In general, COGSA "applies compulsorily `to all contracts for carriage of goods by sea to or from ports of the United States in foreign trade.'" Itel Container Corp. v. M/V "Titan Scan", 139 F.3d 1450, 1452-53 (11th Cir.1998) (quoting 46 U.S.C.App. § 1312). COGSA does not apply, however, to "cargo which by the contract of carriage is stated as being carried on deck and is so carried." 46 U.S.C.App. § 1301(c).

The bill of lading which Contship issued stated that the yacht would be shipped on deck, see Bill of Lading (attached as an exhibit to Defendant's Motion for Partial Summary Judgment, D.E. # 14), and for purposes of this Motion the parties do not dispute that the yacht was in fact shipped on deck. COGSA, therefore, does not apply by its own terms. See, e.g., Institute of London Underwriters v. Sea-Land Serv., Inc., 881 F.2d 761, 764 (9th Cir.1989) ("It is beyond dispute that COGSA itself does not apply to the on-deck shipment of the yacht."); General Motors Corp. v. Moore-McCormack Lines, Inc., 451 F.2d 24, 25 n. 1 (2d Cir.1971) (COGSA did not apply by its own terms to generators carried on deck); Z.K. Marine, Inc. v. M/V Archigetis, 776 F.Supp. 1549, 1553 (S.D.Fla.1991) ("COGSA ... does not directly apply to this case because the yachts were carried on deck."), clarified on denial of reconsideration, 808 F.Supp. 1561 (S.D.Fla.1992); Sail Am. Foundation v. M/V T.S. Prosperity, 778 F.Supp. 1282, 1285 (S.D.N.Y.1991).

Despite the fact that COGSA does not apply by its own terms, a bill of lading may include a paramount clause which "makes COGSA applicable at times when it would not apply of its own force." Ins. Co. of N. America v. M/V Ocean Lynx, 901 F.2d 934, 939 (11th Cir.1990); see also, e.g., Brown and Root, Inc. v. M/V Peisander, 648 F.2d 415, 419-20 (5th Cir. June 19, 1981). The bill of lading which governed the transportation of Realini's yacht provides that Contship's liability shall be determined pursuant to COGSA. See Bill of Lading, § 3(b). COGSA therefore governs Realini's claims.

Motion for Summary Judgment as to Liability

Realini contends that he is entitled to summary judgment as to Contship's liability. In its Response (D.E.# 26) and the affidavit of O. Fred Barron which it filed (D.E.# 23, 27), Contship does not dispute that Realini is entitled to summary judgment as to liability.

Because Realini's entitlement to summary judgment as to Contship's liability is undisputed, on August 17, 1998 (D.E.# 31), Magistrate Judge Garber granted Realini's Motion for Partial Summary Judgment as to Liability. Because the Motion which Magistrate Judge Garber's August 17, 1998 Order addressed was a Motion for Summary Judgment, however, the Court will treat that Order as a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(A) & (B).

Neither party objected to the Magistrate Judge's August 17 Order, and Contship has never disputed that Realini is entitled to summary judgment as to liability. Additionally, upon a de novo review the Court finds that Realini is entitled to summary judgment as to Contship's liability.

Under COGSA, Realini may establish "a prima facie case by proving that the carrier received the cargo in good condition, but unloaded it in a damaged condition at its destination." Hale Container Line, Inc. v. Houston Sea Packing Co.,Inc., 137 F.3d 1455, 1468 (11th Cir. 1998). Realini has submitted to the Court unrebutted evidence that Contship received the cargo in good condition, but unloaded it in Miami in damaged condition. Specifically, Realini has submitted copies of his Request for Admissions and Contship's Response to his Request for Admissions. See Motion for Partial Summary Judgment as to Liability, D.E. # 16, Ex. A (Defendant's Response to Plaintiff's Request for Admissions) and Ex. B (Plaintiff's Request for Admissions). In that Response, Contship admitted that it "received the subject cargo in good order and sound condition[,]" D.E. # 16, Exs. A & B, ¶ 3, that the "cargo arrived at its destination with damages[,] ... was damaged during the ocean voyage[,] ... [and] was damaged while in the care, custody and control of [Contship]." Id., ¶¶ 7-9. Realini therefore established a prima facie case under COGSA.

Because Realini established a prima facie case, "the burden shift[ed] to [Contship] to prove that it either exercised due diligence to prevent damage to the cargo by handling, stowing, and carrying the cargo in a seaworthy ship, or that the harm resulted from an `uncontrollable' cause of loss as statutorily defined [in 46 U.S.C.App. § 1304(2)]." Hale Container Line, 137 F.3d at 1468; see Sony Magnetic Prods. Inc. of America v. Merivienti O/Y, 863 F.2d 1537, 1539 (11th Cir.1989); Terman Foods, Inc. v. Omega Lines, 707 F.2d 1225, 1227 (11th Cir.1983). Contship submitted no evidence and presented no argument to suggest that it met its burden of proof. Because Contship did not meet its burden, the burden of proof did not shift back to Realini, see Terman Foods, 707 F.2d at 1227, and Realini is entitled to summary judgment on the issue of Contship's liability.

Motion for Summary Judgment as to Damages

Contship contends that its liability for the damage to Realini's yacht is limited to $500.00. Magistrate Judge Garber recommends that the Court grant Contship's Motion for Summary Judgment and find that Contship's liability is limited to $500.00. Specifically, Magistrate Judge Garber concluded that: (1) the $500.00 per package limitation...