Wuerttembergische and Badische Versicherungs-Aktiengesellschaft v. M/V Stuttgart Exp.

• Citation: 711 F.2d 621
• Decision Date: 08 August 1983
• Docket Number: VERSICHERUNGS-AKTIENGESELLSCHAF,P,No. 82-3452,82-3452
• Parties: WUERTTEMBERGISCHE AND BADISCHElaintiffs-Appellants, v. M/V STUTTGART EXPRESS, her engines, boilers, etc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 621

711 F.2d 621

1984 A.M.C. 2738

WUERTTEMBERGISCHE AND BADISCHE

VERSICHERUNGS-AKTIENGESELLSCHAFT, Plaintiffs-Appellants, v. M/V STUTTGART EXPRESS, her engines, boilers, etc., et al.,

Defendants-Appellees.

No. 82-3452.

United States Court of Appeals, Fifth Circuit.

Aug. 8, 1983.

Machale A. Miller, New Orleans, La., for plaintiffs-appellants.

Chaffe, McCall, Phillips, Toler & Sarpy, Harvey G. Gleason, Kenneth J. Servay, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS and JOLLY, Circuit Judges, and WILL ^*, District Judge.

PER CURIAM:

This case involves the $500 package limitation contained in Section 4(5) of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(5), and the obligation upon the carrier of the goods to make available adequate opportunity to the shipper to increase the liability valuation.

Plaintiff-appellant, Wuerttembergische and Badische Versicherungs-Aktiengesellschaft (shipper), brought this suit for cargo loss in rem and in personam against the M/V STUTTGART EXPRESS and Hapag-Lloyd Aktiengesellschaft, the vessel's owner. Plaintiff-appellant is the underwriter of the cargo and defendant-appellee is Hapag-Lloyd (carrier). The facts were stipulated. Plaintiff's assured was the owner of a winding block for a nuclear reactor. It contracted with the carrier to ship the block from Antwerp, Belgium, to Norfolk, Virginia. The block was fully enclosed in a shipping crate. During the course of the loading in Antwerp, stevedores hired by the carrier negligently caused the crate to fall off the container flat resulting in a total loss of $193,791, the CIF value of the cargo. While Hapag-Lloyd concedes the amount of shipper's damage, it admits liability only to the amount of $500 pursuant to the package limitation contained in Section 4(5) of COGSA.

There is no question but that COGSA is applicable to the shipment since it originated in a foreign port with intended delivery to the United States. 46 U.S.C. § 1300. The issue raised in the suit is whether the $500 package limitation in COGSA is applicable to this particular loss under the bill of lading issued by the carrier and the text of the tariff which the carrier has on file with the Federal Maritime Commission.

COGSA provides that the carrier must offer the shipper an opportunity to avoid the $500 per package limitation of liability. Shipper claims that the option was not offered in this case to comply with the COGSA requirement because the bill of lading and the tariff did not adequately inform shipper of optional freight rates applicable to shippers who did not wish to be limited by the $500 package limitation.

This case needs no extended discussion. It is controlled by our decision in Brown & Root, Inc. v. M/V PEISANDER, 648 F.2d 415 (5th Cir.1981). As we point out in that case, the key conclusion which we reach is that the published tariff of the carrier is law and is controlling. In that case the published tariff clearly gave the shipper a choice of valuations. In this case the tariff is in terms incorporated in the bill of lading. The tariff specifically "offers shippers a choice of freight rates dependent upon whether the shipment is made subject to Bill of Lading limit of value, or at a higher limit of value, ...." The tariff then states the rates and goes ahead to state a specific rate in case of a higher declared value. While the bill...