Schiess-Froriep Corp. v. S. S. Finnsailor, SCHIESS-FRORIEP

• Decision Date: 07 April 1978
• Docket Number: D,No. 694,SCHIESS-FRORIEP,694
• Citation: 574 F.2d 123
• Parties: CORP., Plaintiff-Appellant, v. S. S. FINNSAILOR, her engines, boilers, etc., OY Finnlines Ltd., Merivienti, O/Y, Defendants, and Universal Terminal and Stevedoring Corp., Defendant-Appellee. ocket 77-7439.
• Court: U.S. Court of Appeals — Second Circuit

Page 123

574 F.2d 123

SCHIESS-FRORIEP CORP., Plaintiff-Appellant, v. S. S. FINNSAILOR, her engines, boilers, etc., OY Finnlines Ltd., Merivienti, O/Y, Defendants and Universal Terminal and Stevedoring Corp., Defendant-Appellee.

No. 694, Docket 77-7439.

United States Court of Appeals Second Circuit.

Argued March 2, 1978.

Decided April 7, 1978.

John P. Conroy, New York City (McHugh, Heckman, Smith & Leonard, New York City, on brief), for plaintiff-appellant.

Celestino Tesoriero, New York City (Grainger & Tesoriero, New York City, on brief), for defendant-appellee.

Before ANDERSON, FEINBERG and TIMBERS, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

This is an appeal from the judgment granting defendant Universal Terminal and Stevedoring Corp.'s (Universal) motion for summary judgment and dismissing plaintiff Schiess-Froriep Corp.'s complaint, which alleged that a portion of a ship's cargo consigned to it had been damaged by Universal, on the ground that the action was barred by the time limitation contained in the bill of lading.

On November 6, 1973, the vessel S.S. Finnsailor arrived along side Shed 220, Port Newark, New Jersey, from Hamburg, Germany, carrying on board, with other cargo, two cases each of which contained a turret lathe consigned to Schiess-Froriep Corp. under bill of lading # 23, issued by OY Finnlines Ltd., the ocean carrier. The consignment was discharged from the vessel on November 8 by Universal, an independent contractor responsible for discharging the vessel's cargo and handling it while it remained at the terminal facility, under a separate contract with OY Finnlines, Ltd. and Merivienti, O/Y, who controlled the S.S. Finnsailor. On November 9, the trucking agent for Schiess-Froriep Corp. took delivery of only one of the two cases in question as the other had been damaged, either in the course of or subsequent to discharge, or during the loading of consignee's agent's truck.

On November 21, 1974, Schiess-Froriep commenced this action in admiralty against OY Finnlines Ltd., Merivienti, O/Y, and the S.S. Finnsailor ¹ and in tort against Universal, alleging that it had been negligent in performing its duties as stevedore and terminal operator and in loading the cases onto consignee's truck. ² Universal answered and moved for summary judgment. It alleged that as an independent contractor, it had the benefit of the limitation of liability provisions in the S.S. Finnsailor's bill of lading, ³ which incorporated the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300 et seq., ⁴ including the one-year statute of limitations on suits for loss or damage to cargo. 46 U.S.C. § 1303(6). Universal argued, therefore, that because the second turret lathe should have been delivered on November 9, 1973, Schiess-Froriep's suit, filed on November 20, 1974, was time-barred.

Schiess-Froriep opposed the motion, alleging that the damage to the lathe occurred while Universal was loading the containers onto consignee's truck and that, in performing this function, Universal was acting as an independent contractor of consignee's agent, the trucker, and not of the carrier, and was not entitled to any benefit from the liability limitations of the bill of lading. ⁵

Relying on the affidavits and supporting documents supplied by the parties, the district court held that, although it was not specifically known when the damage to the lathe occurred, Universal was acting as an independent contractor for the carrier, and, by virtue of the bill of lading, obtained the benefit of COGSA's one-year limitation period. Because the action was commenced more than one year after the date when the second turret lathe should have been delivered, the court concluded that Schiess-Froriep's action against Universal was barred.

On appeal, Schiess-Froriep contends that summary judgment was improperly granted because questions of fact exist as to when and how the damage to the lathe occurred and on whose behalf Universal was acting when loading the consignee's truck. While it may be that if the damage occurred while Universal was performing services on behalf of the carrier, e. g., as a stevedore discharging the vessel or as a terminal operator moving the containers within the pier area in order to make them accessible to the consignee, then the language of the bill of lading is sufficiently broad to extend to Universal COGSA's one-year statute of limitations, see Bernard Screen Printing Corp. v. Meyer Line, 464 F.2d 934 (2d Cir. 1972), cert. denied, 410 U.S. 910, 93 S.Ct. 966, 35 L.Ed.2d 272 (1973); Carle & Montanari, Inc. v. American Export Isbrandtsen Lines, Inc., 275 F.Supp. 76 (S.D.N.Y.), aff'd, 386 F.2d 839 (2d Cir. 1967) (per curiam ), cert. denied, 390 U.S. 1013, 88 S.Ct. 1263, 20 L.Ed.2d 162 (1968); cf. Berkshire Knitting Mills v. Moore-McCormack Lines, Inc., 265 F.Supp. 846 (S.D.N.Y.1965); Schiess-Froriep contends that the bill of lading should not be read so broadly as to extend its limitations to independent contractors who are performing work on behalf of the consignee and not for the carrier. See Toyomenka v. S. S. Tosaharu Maru, 523 F.2d 518 (2d Cir. 1975); Rupp v. International Terminal Operating Co., 479 F.2d 674 (2d Cir. 1973); Cabot Corp. v. S. S. Mormacscan, 441 F.2d 476 (2d Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 104, 30 L.Ed.2d 96 (1971). In support of its position, Schiess-Froriep submitted an affidavit from its attorney which incorporated by reference a marine survey report prepared by its representative stating that on November 20, 1973, he was informed that "at the time of the delivery of the shipment, the lathe serial no. 1171-0188 was dropped while being loaded onto the truck, and, therefore, the lathe was left at the pier for inspection."

Universal, on the other hand, contends that there is no genuine issue of material fact in the case and that the entry of summary judgment in its favor was proper. Relying on a marine surveyor's report, dated December 10, 1973, attached as an exhibit to its attorney's affidavit, and on the delivery order of November 8, 1973, issued by Schiess-Froriep's customs broker, Universal argues that it has conclusively shown that it damaged the lathe on November 8, 1973, while moving the container from a stringpiece to another location in the port terminal. In any event, Universal takes the position that it was at all times, including its loading of the delivery truck, an independent contractor of the carrier, and it was, therefore, entitled to the protection of the bill of lading. See David Crystal, Inc. v. Cunard Steamship Co., Ltd., 339 F.2d 295 (2d Cir. 1964), cert. denied, 380 U.S. 976, 85 S.Ct. 1339, 14 L.Ed.2d 271 (1965); Berkshire Knitting Mills v. Moore-McCormack Lines, Inc., supra.

The standards to be applied by the district court in deciding motions for summary judgment have been clearly articulated in this Circuit and need little repetition here. It must "resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, (citation omitted), with the burden on the moving party to demonstrate the absence of any material fact genuinely in dispute." Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975); see also, United States v. Bosurgi, 530 F.2d 1105 (2d Cir. 1976). Rule 56(e), F.R.Civ.P., requires that the moving party meet its burden by submitting affidavits made on personal knowledge, which set forth admissible evidentiary facts and affirmatively show that the affiant is competent to testify to the matters contained therein. United States v. Pent-R-Books, Inc., 538 F.2d 519 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977); Jaroslawicz v. Seedman, 528 F.2d 727 (2d Cir. 1975); see also, United States v. Bosurgi, supra; Union Insurance Soc. of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946 (2d Cir. 1965); Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800 (2d Cir. 1960); 6 Pt. 2 Moore's Federal Practice P 56.22(1).

In this case, the affidavit of Universal's counsel fails to comply with the Rule because it plainly is not based on personal knowledge of the affiant. Moreover, no affidavit from any witness thus qualified was offered or filed by Universal. The December 10 marine survey report, upon which Universal's attorney relies, is itself based on hearsay information insofar as it reports how the damage occurred, and is of no more use on this issue than the affidavit of Schiess-Froriep's counsel, who stated that his client's surveyor said that the damage occurred during truck loading. See Peter Pan Fabrics, Inc. v. Dixon Textile Corp., supra. The district court, itself, stated in its opinion, "it is not known specifically whether the damage occurred on the vessel or on the dock." The resolution of this question, however, is essential to the disposition of Schiess-Froriep's claim against Universal.

Neither party submitted any evidence to the district court regarding Universal's status while engaged in loading the delivery truck. At oral argument on appeal, the attorney for Schiess-Froriep asserted that truck-loading is a service separate and apart from the carrier's obligations under the bill of lading, and accordingly, that Universal was acting as an independent contractor for the consignee's trucker or the consignee while so engaged. Counsel for Universal responded that delivery was not complete until the containers had been loaded onto the truck, and, therefore, Universal was performing work under its contract with the carrier. Except for these assertions by counsel, the record is barren of any evidentiary or factual foundation for either claim. It is significant that neither attorney was able to inform the court who was paying Universal for its truck-loading services or whether a separate contract had covered this work. There was no testimony concerning the custom and usage in the maritime trade with regard to a...