National Automotive Publications v. US Lines
| Decision Date | 14 February 1980 |
| Docket Number | 78 Civ. 5891 (KTD). |
| Citation | 486 F. Supp. 1094 |
| Parties | NATIONAL AUTOMOTIVE PUBLICATIONS, INC., Plaintiff, v. UNITED STATES LINES, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Lawrence G. Nusbaum, Jr., New York City, for plaintiff.
Kirlin, Campbell & Keating, New York City, for defendant; Joseph K. Molloy, New York City, of counsel.
This action was originally commenced by National Automotive Publications hereinafter referred to as "NAP", in New York State Supreme Court, New York County, against United States Lines, Inc., charging breach of contract, negligence and wrongful detention of goods. Thereafter, the action was removed to this Court pursuant to 28 U.S.C. § 1441. Jurisdiction is alleged under the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300 et seq. hereinafter referred to as "COGSA" or "the Act".
Plaintiff is the publisher of National Sports Annual, an annual publication featuring articles, photos and advertising materials catering to motor racing fans. After some negotiations between NAP and a well known race track in England, NAP was granted a license to sell its 1978 Annual at the track during a two day motor car race. The race was scheduled for the 16th and 17th of September, 1978. In consideration for the license, NAP agreed to provide the track with exclusive coverage of the race by devoting a special section to the race in its 1979 Annual.
In August, 1978, NAP, through its managing agent and editor George Houraney, began preparation for the shipment of its publication to England for the race. After some investigation, NAP determined that shipment aboard one of defendant's vessels, the American Argosy, was satisfactory in that the vessel was scheduled to arrive in England prior to the race. Thus, on August 16th, the plaintiff delivered 18 cartons to the defendant for shipment to England. These cartons contained approximately 1,800 of plaintiff's 1978 Annual. These magazines were produced at a total cost of $2,178.
Upon delivery of the goods to defendant, a "dock receipt" was issued. The receipt contained the following language:
George Houraney Hold on dock will pick up September 14, 1978, London England.
(emphasis in original). It went on to provide:
RECEIVED the goods or the containers, vans, trailers, pallerized units or other packages said to contain the goods herein mentioned, in apparent good order and condition, except as otherwise indicated herein, to be held and transported subject to all the terms contained in the carrier's regular long and short form bills of lading currently used in this service ... Copies of such bill of lading and clauses may be obtained from the carrier on request and may be inspected at any of its offices.
The defendant's short form bill of lading provides, in pertinent part:
The goods were placed on board the American Argosy which sailed for England in late August and arrived at Felixstowe, England, on September 1, 1978. Plaintiff's goods were then discharged and arrived in London at the Barking Containerbase on September 4th. Thereafter, plaintiff's goods were unpacked by defendant and made available for pick up by plaintiff's representative subject to the payment of defendant's freight charges and compliance with English custom regulations.
On Thursday, September 14th, plaintiff's representative, George Houraney, arrived in England to take possession of the goods. As it developed, however, the proper custom clearance had not been obtained and, accordingly, the goods could not be removed. Despite several attempts by English Customs Clerk, Peter Gregory, to clear the goods, plaintiff was unable to take possession of the goods prior to the auto race at which they were to be distributed. In fact, when all clearance efforts were exhausted on Friday, September 15th, the day before the race, plaintiff's representative abandoned all efforts to gain the release of the goods. Thus, to date, the goods remain uncollected on the docks awaiting custom's clearance. In addition, the shipping charges for the goods remain unpaid.
The essence of the dispute between the parties concerns the terms of the bill of lading issued by defendant and the manner in which plaintiff's goods were handled by defendant upon arrival in England.
More particularly, plaintiff argues that the terms of the bill of lading differed substantially from those terms agreed upon by the parties and recited in the dock receipt. In this regard, plaintiff points to the fact that defendant was named for the first time, in the bill of lading, as the consignee of the goods. However, in the dock receipt, defendant was named only as the "exporter/carrier" whereas the plaintiff was designated "shipper/exporter" and, by reasonable inference, designated the consignee of the goods.
In addition, plaintiff argues that the destination of the goods was unilaterally changed by defendant from London, England, to the port of Felixstowe, England.
Plaintiff also argues that it was led to believe, through the representations of defendant's agents, that any and all custom requirements would be satisfied by defendant and plaintiff would simply be able to pick up its goods on the dock in England. However, upon plaintiff's arrival in England, the custom requirements had not been satisfied and it was impossible for plaintiff to remedy this situation in time for the goods to be cleared and ready for distribution at the race track.
In addition, plaintiff urges that whatever chance existed for a timely clearance of the goods was precluded by certain "custom snags". These, plaintiff argues, were caused by defendant's unilateral changes in the contract of carriage with respect to the designated consignee of the goods and their port of delivery.
Plaintiff concludes that the changes in the parties contract of shipment which appeared in the bill of lading constituted a breach of the agreement. In addition, plaintiff charges that defendant's failure to take the necessary steps to insure that plaintiff's goods cleared customs upon their arrival in England, constituted negligence and resulted in the wrongful detention of plaintiff's goods.
Defendant, of course, contends that pursuant to the provisions contained in the dock receipt, the terms contained in its bill of lading and the provisions of the COSGA were properly incorporated into the parties' contract of shipment. And, when these provisions are read together, the goods were properly shipped to Felixstowe and the custom formalities properly left for plaintiff's attention upon arrival.
Defendant now moves, pursuant to Fed. R.Civ.P. 56, for summary judgment on the ground that no triable issue of fact exists and it is thereby entitled to judgment as a matter of law.
Plaintiff has cross-moved for summary judgment, reargument of a prior discovery decision dated January 22, 1979 and seeks an order suppressing certain affidavits submitted by plaintiff as well as an order permitting an amended complaint to be filed adding a fourth claim for relief.
Before addressing each of the motions outlined above, a threshold question must be broached. That is—whether this Court has jurisdiction over the subject matter of the instant action.
Essential to the removal of the instant action to federal court was defendant's allegation that the action is governed by the provisions of COGSA and accordingly falls within the ambit of this Court's admiralty jurisdiction. Moreover, coverage by the Act is paramount in defendant's motion for summary judgment.
Plaintiff, in its opposition to the instant motion for summary judgment, vehemently urges that the terms of COGSA are not controlling. However, plaintiff never moved to remand this action to the state court for want of federal subject matter jurisdiction. Nor has plaintiff questioned the jurisdiction of this Court within the context of the instant motions. And yet, curiously, it persists in its position that COGSA, the sole federal jurisdictional predicate invoked herein, is somehow inapplicable.
Logic dictates that if the plaintiff's position is correct and COGSA is inapplicable, this action must be remanded to the state court from whence it came for want of federal jurisdiction. Only if federal subject matter jurisdiction exists will the instant motions be determined.
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