MARITIME & MOTOR CARRIER (CARRIAGE OF GOODS BY SEA ACT) Vessel operating ocean common carrier (i.e., NOT an NVOCC) that arranged inland freight moves by multiple motor carriers sues those motor carriers for state claims including fraud and conversion for diversion of freight from their intended inland destinations – held (among other holdings): Carriage of Goods by Sea Act (COGSA) did NOT apply because the parties’ did not expressly display an intent “to extend COGSA jurisdiction to Defendants’ [motor carriers’] inland transportation” in a “maritime contract”.

Mitsui O.S.K. Lines, Ltd. v. Evans Delivery Co., Civ. No. 12-7186 (DRD) (U.S. District Court for the District of New Jersey, June 10, 2013). Copy of court-issued opinion available here.

Underscores the “freedom of contract” given to parties in deciding whether or not they wish COGSA and its provisions to apply to an inland freight move connected with an ocean carriage. 

FREIGHT DAMAGE (CARMACK AMENDMENT & CARRIAGE OF GOODS BY SEA ACT / “COGSA”) / Two high-value shipments of aerospace parts from Italy to Southern California arrive at seaport unharmed but are damaged on motor carrier move to inland destination – Held: Cross-motions for summary judgment denied based on controverted facts.

HELD:

1. UPS-Supply Chain Services (3PL / logistics company) motion for summary judgment based on liability limitation contained in its “Master Services Agreement” with shipper denied – held: Activities triggering such limitation of UPS’ liability do not correspond to what UPS-Supply Chain Services is alleged to have performed in this case (“UPS-SCS’s position on this issue is a bit amorphous”).

2. Similar motion under a separate agreement between UPS-Supply Chain Services and shipper called “Customs Brokerage Services Agreement” by which UPS agreed to act as customs broker for shipper – held: Motion denied to the extent that controverted facts require trial to determine whether or not UPS acted solely as a customs broker in this case. Put another way, shipper argued that UPS had also acted “as a freight forwarder or motor carrier”.

3. Similar motion by inland motor carrier limiting damages under Carriage of Goods by Sea Act denied – held: Facts controverted as to whether or not UPS had in fact issued a “through” bill of lading for the sea voyage  between Italy and the Southern California seaport that protected such motor carrier as a third party beneficiary.

4. Similar motion by shipper to recover against inland motor carrier under Carmack due to controverted issue of facts as to whether or not a “through” bill of lading had been issued by UPS, thereby covering such motor carriage as third party beneficiary under the Carriage of Goods by Sea Act. 

My point: Much of such cases’ outcome depends upon drafting of agreements, including the bill of lading – but much also relates to managing the process so as to make clear who is issuing what bill of lading and what services in a liability limitation agreement are in fact going to be performed by the 3PL / logistics company.

Rohr, Inc. v. UPS-Supply Chain Solutions, Inc., Case No. 11cv617-GPC (WVG) Slip copy (U.S. District Court for the Southern District of California, April 8, 2013). Free copy available here.

FREIGHT DAMAGE STATUTE (CARRIAGE OF GOODS BY SEA ACT) / Lawsuit for damage to transformer on ocean voyage – held: (1) COGSA 1-year limitations period bars claim against stevedore company, (2) no prima facie showing of damage caused by stevedore company under bailee theory or negligence.

Memorandum and Opinion Entering Findings of Fact and Conclusions of Law following a 7-day trial. 

Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 2013 WL 441453 (U.S. District Court for the Southern District of Texas, February 5, 2013). No free copy available at time of posting.

FREIGHT LOSS / Held: (1) Named ship itself was liable in rem under pre-COGSA/pre-Harter maritime law for damage to freight here, and (2) named ship itself was liable as a “carrier” for damage to freight here as well. On this second point American courts differ – but same legal conclusion whether either (a) court applies bill of lading’s Clause Paramount that applies Hague-Visby Rules, or (b) court concludes that COGSA applies.

Man Ferrostaal, Inc. v. M/V Akili, 2012 WL 6050643 (U.S. Court of Appeals for the 2nd Circuit, December 6, 2012. Free copy available here.

Who is affected? Shippers and carriers of freight by ocean ship where the load is lost or damaged.   Continue reading

FREIGHT LOSS / Shipment of plasma from Baxter Healthcare in Kentucky to Vienna, Austria. Shipper/Baxter (through contractor) issued “sea waybill between Baxter and [ocean carrier] for shipment from Kentucky to Vienna, Austria. Freight destroyed in motor carrier accident en route to ocean port and ocean carrier in Port of Norfolk, Virginia for transit by sea. Held: COGSA, not Carmack, governed.

Royal & sun Alliance Insurance, PLC v. Service Transfer, Inc., 2012 WL 6028991 (U.S. District Court for the Southern District of New York, December 4, 2012. Free copy available here.

Who is affected? Shippers and carriers of freight by ocean ship where the load is lost or damaged during motor carrier leg to ocean port where bill of lading is a “through” one to foreign, trans-ocean destination. Continue reading