Rothfos Corp. v. M/V Nuevo Leon, CIV. A. H-99-0775.
| Decision Date | 18 April 2000 |
| Docket Number | No. CIV. A. H-99-0775.,CIV. A. H-99-0775. |
| Citation | 123 F.Supp.2d 362 |
| Parties | ROTHFOS CORPORATION, Plaintiff, v. M/V NUEVO LEON her engines, tackle, etc., and Transportacion Maritima Mexicana, S.A. de C.V., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Robert Glen Moll, Hill Rivkins and Hayden, Houston, TX, for Rothfos Corporation, plaintiffs.
David R Walker, Royston Rayzor Vickery and Williams, Houston, TX, for M/V Nuevo Leon, her engines, tackle etc, Transportacion Maritima Mexicana SA DE CV, defendants.
Pending before the Court in this admiralty case is Plaintiff's Motion for Summary Judgment ("Plaintiff's Motion") [Doc. # 15]. Defendant Transportacion Maritima Mexicana, S.A. de C.V. ("TMM") has responded in opposition and other pleadings joining issue have been filed.1 The Court has considered Plaintiff's Motion, Defendant TMM's Response, all matters of record, and the applicable authorities, and concludes that Plaintiff's Motion should be DENIED.
This action is brought pursuant to the Carriage of Goods by Sea Act, 46 U.S.C.App. §§ 1300-1315 ("COGSA"), and concerns damage to coffee beans owned by Plaintiff Rothfos Corporation ("Rothfos" or "Plaintiff"), the shipper in this case. Defendant Transportacion Maritima Mexicana, S.A. de C.V. ("TMM"), the carrier, agreed to transport approximately 13,000 bags of coffee beans owned by Rothfos, on the Defendant vessel, M/V NUEVO LEON. See Bills of Lading (exemplars), Defendant's Response, Exhibit A; Inspection Report by TMM, Plaintiff's Motion, Exhibit 1.
The M/V NUEVO LEON departed Veracruz, Mexico, on February 10, 1998, and arrived in New Orleans, Louisiana, on February 13, 1998. See Survey Report No. NYC-23075-DB, at 1 (Plaintiff's Motion, Exhibit 3). The claims and cargo at issue involved the following containers shipped under the specified bills of lading:
Claim # 1 ($53,099.09)
1. Container TEXU 220854-3 (B/L2
839)3
2. Container MLCU 296204-9 (B/L
841)
3. Container SCZU 746946-0 (B/L
842)
4. Container TEXU 205503-8 (B/L
842)
5. Container CRXU 271320-4 (B/L
843)
6. Container CRXU 238936-9 (B/L
843)
7. Container CRXU 288578 (B/L 843)
Claim # 2 ($8,290.85)
8. Container TRIU 312590 (B/L 838)
(stripped Feb. 27, 1998)4
9. Container TEXU 205346-2 (B/L
838) (unloaded Mar. 2, 1998)5
Claim # 3 ($1,899.73)
10. Container GSTU 281864 (B/L 779)
(unloaded Feb. 26, 1998)6
The coffee was in good order and condition at the time TMM packed it into the containers. Id. See generally Asesortamiento e Inspeccion Martima, S.A. de C.V. Inspection Report, Plaintiff's Motion, Exhibit 1.
The containers were discharged from the vessel to "Terminal B-5," and thereafter moved to a facility of Dupuy Storage and Forwarding Corporation ("Dupuy"), a warehouse, where it was stored. Plaintiff inspected the cargo after it arrived at the Dupuy warehouse.7 The record does not specify the exact relationship between Dupuy and the parties. Defendant TMM describes Dupuy as "cargo's interest," and Rothfos does not dispute that Dupuy was its agent while the coffee was stored in the Dupuy warehouse.
Three of the containers were stripped or unloaded on February 27, 1998 and March 2, 1998. See Survey Report No. NYC-23062-DB, at 1, and Survey Report No. NYC 23063-DB, at 1 (each in Plaintiff's Motion, Exhibit 3). Plaintiff claims that part of the cargo in these three containers was damaged by water. See id. Plaintiff prepared and apparently forwarded its claims for this damage on March 5, 1998. See Defendant's Response, Exhibit B ("Claim 2" and "Claim 3," respectively).
Plaintiff Rothfos arranged for a marine surveyor, Captain Wolfgang Morgenstern, to survey the damage in these three containers. Morgenstern concluded after inspection of the cargo on March 9, 1998, that numerous bags of coffee from Containers TRIU 312590, TEXU 205346-2, and GTSU 281864 were, "wet stained in irregular patterns," partially dried out, and/or had signs of mildew. Survey Report Nos. NYC-23062-DB, at 2, and NYC-23063-DB, at 2 (Plaintiff's Motion, Exhibit 3).
Thereafter, TMM arranged for a survey which was conducted on March 18, 1998. That survey reported that some of the cargo was damaged. Cargo Survey Report No. NOLC 98-0007, by D.J. Thompson, dated July 7, 1998 ("Thompson Report"). Plaintiff's Motion, Exhibit 2. The parties disagree about the extent of the damage in the containers covered by Claims 2 and 3,8 about the cause, and whether Plaintiff has met its burden of proof to hold Defendant responsible for the damage.
In addition, the parties have a substantial dispute concerning Claim 1, which is addressed by Plaintiff's surveyor, Morgenstern. See Survey Report No. NYC-23075-DB. There is no admissible evidence in the record as to when these containers were unloaded or stripped.9 Morgenstern reports that his survey was performed on March 12 and 17, 1998. Survey Report No. NYC-23075-DB, at 2 (Plaintiff's Motion, Exhibit 3).10 Morgenstern noted the following damage:
Bags Type of Damage
Container No. Damaged Reported
TEXU 220854-3 26 Wet stained
SCZU 746946-0 28 Wet and partially mildewed
CRXU 271320-4 30 Bags were soaking wet
and mildewed. Internal
inspection of the container
revealed that the bottom
was wet
MLCU 296204-9 30 Wet and mildewed
TEXU 205503-8 27 Bottom half wet and discolored
CRXU 238936-9 34 Wet and discolored. The
bottom of the container
was wet stained ... and
signs of wet mud on the
bottom and outside of the
container
CRXU 228578 30 Wet
Morgenstern also reported that all of the damaged bags of coffee had been packed on the bottom layer of their respective containers, and that, as a result of the damage, the FDA ordered that the damaged bags be destroyed. See id. According to Morgenstern, the total value of the destroyed coffee was $63,289.67. See Affidavit of Captain Wolfgang Morgenstern, Plaintiff's Motion, Exhibit 3.
Plaintiff claims that both Defendants' negligence or vessel unseaworthiness caused water damage to its cargo of coffee beans while the cargo was in Defendants' custody, and that Plaintiff is entitled to recovery of all the damages identified by Morgenstern.
In deciding a motion for summary judgment, the Court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Boze v. Branstetter, 912 F.2d 801, 804 (5th Cir.1990). Material facts are those facts "that might affect the outcome of the suit under the governing law." Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir.1998) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The facts are to be reviewed with all "justifiable inferences" drawn in favor of the party opposing the motion. See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). However, factual controversies are resolved in favor of the nonmovant "only when there is an actual controversy — that is, when both parties have submitted evidence of contradictory facts." Laughlin v. Olszewski, 102 F.3d 190, 193 (5th Cir.1996).
The party moving for summary judgment has the initial burden of demonstrating the absence of a material fact issue with respect to those issues on which the movant bears the burden of proof at trial. The movant meets this initial burden by showing that the "evidence in the record would not permit the nonmovant to carry its burden of proof at trial." Smith, 158 F.3d at 911. The burden then shifts to the nonmovant to demonstrate that summary judgment is inappropriate. See Morris, 144 F.3d at 380. This is accomplished by producing "significant probative evidence" that there is an issue of material fact so as to warrant a trial, see Texas Manufactured Hous. Ass'n v. Nederland, 101 F.3d 1095, 1099 (5th Cir.1996); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 161 (5th Cir.1996); Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994), and that is "sufficient to support a jury verdict." Morris, 144 F.3d at 380; accord Doe v. Dallas Indep. School Dist., 153 F.3d 211, 215 (5th Cir.1998). This burden is not met by mere reliance on the allegations or denials in the nonmovant's pleadings. See, e.g., Morris, 144 F.3d at 380. Likewise, "unsubstantiated or conclusory assertions that a fact issue exists" do not meet this burden. See id. Instead, the nonmoving party must present specific facts which show "the existence of a `genuine' issue concerning every essential component of its case." Id. Dispute about a material fact is genuine only if evidence is such that reasonable jury could return a verdict for nonmoving party. See Stafford v. True Temper Sports, 123 F.3d 291, 294 (5th Cir.1997); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992).
In the absence of any proof, the court will not assume that the nonmovant could or would prove the necessary facts. See McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.), revised on other grounds upon denial...
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...at 147-49, 119 S.Ct. 1167. 18. See, e.g., Wills v. Amerada Hess Corp., 379 F.3d 32, 48-50 (2d Cir.2004); Rothfos Corp. v. M/V NUEVO LEON, 123 F.Supp.2d 362, 371-72 (S.D.Tex.2000). 19. Kumho Tire, 526 U.S. at 149, 119 S.Ct. 20. Trial Transcript, vol. 4, at 81. A subsequent passage is also il......
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