AGCS MARINE INSURANCE CO., Plaintiff,

v.

KOOL PAK LLC, Defendant.

Case No. 2:22-cv-02775-ODW (MARx)

Signed April 12, 2023

Attorneys and Law Firms

Philip A. Fant, Fant Law Office, Kentfield, CA, for Plaintiff.

James Attridge, Law Office of James Attridge, Littleton, CO, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [18]

OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

*1 Plaintiff AGCS Marine Insurance Company, as subrogee of its insured Ivar’s Inc., brings this interstate shipping action against Defendant Kool Pak LLC to recover for damage to a shipment of clam chowder. (See Compl. ¶¶ 1–6, ECF No. 1.) Kool Pak moves for summary judgment. (Mot. Summ. J. (“Mot.” or “Motion”), ECF No. 18.) The Motion is fully briefed. (Opp’n, ECF No. 22; Reply, ECF No. 26.) For the reasons discussed below, the Court DENIES the Motion.¹

II. BACKGROUND

Ivar’s Inc. is a Seattle-area restaurant chain and manufacturer of prepared foods for the retail market. (Mot. 2.) On March 26, 2020, Ivar’s tendered a consignment of 1,250 cases of packaged clam chowder to Kool Pak, a common interstate motor carrier, for transportation by road from Ivar’s in Mukilteo, Washington, to consignee Costco in Mira Loma, California. (Compl. ¶¶ 2–4; Mot. 3.) When Ivar’s tendered the chowder to Kool Pak, it was refrigerated at a temperature of 35.7°F and otherwise in good condition. (Compl. ¶ 3.) Kool Pak issued a bill of lading No. 41388, agreeing to transport the chowder in a refrigerated trailer at a temperature between 33°F and 40°F. (Consol. Statement Uncontroverted Facts (“CSUF”) 5, ECF No. 27; Compl. ¶ 4; Decl. James Attridge ISO Mot. (“Attridge Decl.”) Ex. C (“Bill of Lading”), ECF No. 18-2.)

On March 30, 2020, Kool Pak attempted to deliver the chowder to Costco at the destination. (Compl. ¶ 5.) Based on the activation of the time temperature indicator (“TTI”) and Kool Pak’s own temperature logs, the temperature within the refrigerated trailer that transported the chowder had exceeded 40°F for over four hours cumulative during the course of transport. (CSUF 6.) Kool Pak’s own trailer temperature log demonstrated that the chowder was subjected to temperatures exceeding 40°F for over ten hours cumulative. (CSUF 7.)² Costco found the increased temperatures had caused an unsanitary condition under FDA guidelines relating to the prevention of botulism, and accordingly rejected the chowder shipment based on the TTI and Kool Pak’s temperature logs. (Compl. ¶ 5.) Ivar’s provided Costco with replacement chowder from existing stock. (CSUF 4.)

Costco did not attempt to discern the internal temperature of the chowder before it was destroyed. (CSUF 2; see also Compl. ¶ 5; Decl. Philip Fant ISO Opp’n (“Fant Decl.”) Ex. 1 (“AGCS Resp. Interrogs.”) No. 2, ECF No. 25-1.) Ivar’s did not attempt to salvage the chowder in the United States or Mexico. (Attridge Decl. Ex. A (“AGCS Resp. RFAs”) No. 4, ECF No. 18-2.)

*2 AGCS as Ivar’s insurer indemnified Ivar’s for the market value of the lost clam chowder.³ (Compl. ¶ 6.) AGCS filed this action for cargo damage pursuant to the Carmack Amendment, seeking to recover the amount it paid to Ivar’s from Kool Pak. (See generally Compl.) Kool Pak moves for summary judgment on the Carmack Amendment claim, or for partial summary judgment regarding the proper measure of damages. (Mot. 3–7.)

III. LEGAL STANDARD

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986), and the court must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party, Scott v. Harris, 550 U.S. 372, 378 (2007).

Once the moving party satisfies its burden, the nonmoving party must go beyond the pleadings and cannot simply argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322–24; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Though the Court may not weigh conflicting evidence or make credibility determinations, there must be more than a mere scintilla of contradictory evidence to survive summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

“A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). Only genuine disputes—where the evidence is such that a reasonable jury could return a verdict for the nonmoving party—over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248. The court should grant summary judgment against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322.

IV. DISCUSSION

Kool Pak moves for summary judgment on the grounds that AGCS cannot meet its prima facie case to establish a Carmack claim and that Ivar’s did not mitigate its damages. (See Mot. 3–7.) Kool Pak also moves in the alternative for partial summary judgment that the measure of damages should be limited. (Id.)

A. Carmack Amendment

The Carmack Amendment, presently codified at 49 U.S.C. § 14706 et seq., is a part of the Interstate Commerce Act and “provides the exclusive cause of action for interstate shipping contract claims.” Pac. Indem. Co. v. Atlas Van Lines, Inc., 642 F.3d 702, 707 (9th Cir. 2011) (quoting White v. Mayflower Transit, L.L.C., 543 F.3d 581, 584 (9th Cir. 2008)). It limits a carrier’s liability under an interstate bill of lading to “the actual loss or injury to the property caused by” the carrier. Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 n.2 (9th Cir. 2007) (quoting 49 U.S.C. § 14706(a)). “[T]he statute codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage” was the result of an excepted cause.⁴ Mo. Pac. R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964).

*3 To establish a prima facie case of liability under the Carmack Amendment, a shipper must show “delivery in good condition, arrival in damaged condition, and the amount of damages.” Thousand Springs Trout Farms, Inc. v. IML Freight, Inc., 558 F.2d 539, 542 (9th Cir. 1977) (citing Mo. Pac. R. Co., 377 U.S. at 138). The burden then shifts to the carrier to show “both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Id. (quoting Mo. Pac. R. Co., 377 U.S. at 138).

Courts have recognized a number of ways in which a shipper may establish that goods arrived in damaged condition. These include, for instance, the nature of the damage, Project Hope v. M/V IBN SINA, 250 F.3d 67, 71 (2d Cir. 2001) (frozen diabetes medication); Great Am. Ins. Co. v. USF Holland Inc., 937 F. Supp. 2d 376, 386 (S.D.N.Y. 2013) (frozen vaccines); a diminution in the cargo’s value, Oshkosh Storage Co. v. Kraze Trucking LLC, 65 F. Supp. 3d 634, 637 (E.D. Wis. 2014) (unsealed cheese); and where cargo is rendered unfit for its intended use or perishable goods have spoiled, Contempo Metal Furniture Co. of Cal. v. E. Tex. Motor Freight Lines, Inc., 661 F.2d 761, 763–64 (9th Cir. 1981) (pitted steel tubing); Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 620, 623 (2d Cir. 1980) (spoiled fish). Generally, proof by statistical sampling has been deemed adequate evidence of damaged condition, provided the sample is sufficient to fairly indicate the damaged condition of the whole cargo. See Thousand Springs, 558 F.2d at 543; S.C. Johnson & Son v. Louisville & Nashville R.R. Co., 695 F.2d 253, 259 (7th Cir. 1982); Imperial Veal & Lamb Co. v. Caravan Refrigerated Cargo, Inc., 554 F. Supp. 499, 501 (S.D.N.Y. 1982).

Kool Pak contends AGCS cannot establish the second prima facie element, proof of arrival in damaged condition. (Mot. 5–6.) Kool Pak argues the temperature log is insufficient to establish the chowder was actually damaged. (Id. at 6.) Kool Pak urges the Court to reject AGCS’s reasoning, based on FDA guidance, that the elevated temperatures subjected the chowder to unsanitary conditions and rendered the chowder unmerchantable. (Id.; Compl. ¶ 5.) According to Kool Pak, Ivar’s was required to test the temperature of the chowder packages on arrival to prove they were actually damaged. (Mot. 6; Reply 3–4.)

In opposition, AGCS offers the trailer temperature logs and the opinion of its foodborne illness expert to establish that the chowder arrived in damaged condition. (See Opp’n 3–8; Fant Decl. Ex. 2 (“Temp. Logs”), ECF No. 25-2.)⁵ First, the temperature logs indicate the temperature in the trailer exceeded 40°F for more than ten hours cumulative over the forty-four-hour trip. (See Temp. Logs (“Supply Temp. (°F)”); Mot. 5 (“forty-four hour journey”).) Thus, the chowder was exposed to temperatures exceeding what was acceptable for more than 20% of the trip.

*4 AGCS also offers the declaration of its foodborne illness expert, Dr. Heidi Kassenborg, who describes why the FDA deems food adulterated and unfit for consumption under these circumstances. (See Decl. Heidi Kassenborg ISO Opp’n ¶¶ 5–13, ECF No. 23.) Dr. Kassenborg explains that seafood products are particularly susceptible to the toxin responsible for botulism; accordingly, the FDA has issued guidance for safe handling and transport which includes maintaining temperatures below 40°F. (Id. ¶¶ 6–8.) She explains that most bacteria, including the toxin that causes botulism, grow rapidly in temperatures exceeding 40°F, a range she refers to as the “danger zone,” and that four hours cumulative in the danger zone “is the common limit for ready to eat potentially hazardous food.” (Id. ¶ 8.) Dr. Kassenborg opines that, because the “shipment was subjected to temperatures exceeding 40°F cumulatively over [four] hours”—indeed, the logs reveal temperatures over 40°F for over ten hours—“Costco was justified, if not obligated, to reject the shipment.” (Id.) Viewing the temperature logs and Dr. Kassenborg’s expert opinion in the light favorable to AGCS, AGCS raises a triable issue as to whether the chowder arrived in damaged condition.

Kool Pak argues Ivar’s should have tested each chowder package’s internal temperature on arrival, to confirm they were all unmerchantable. (See Reply 4 (describing a methodology of testing chowder pouch temperatures, working from the edges of the trailer inward, to discern if any chowder was actually in the “danger zone”).) Such a temperature test in these circumstances would have been pointless and impractical. Anyone who has unknowingly purchased a stressed gallon of milk at a supermarket understands this—a prior indecisive shopper removed the milk from the refrigerator case, shopped the aisles, and then rejected the milk and returned it to the refrigerated case—the milk may be at an appropriate temperature by the time the next unwitting shopper selects it, but it has already started to spoil from its journey around the store. Here, the undisputed fact is that the chowder was subjected to temperatures in the danger zone for more than ten hours cumulative over a forty-four-hour period of transport. Thereafter, the temperature on arrival “was of no consequence.” See Sunset Motor Lines, Inc. v. Lu-Tex Packing Co., 256 F.2d 495, 499 (5th Cir. 1958) (finding lowered temperature on arrival “of no consequence” where meat cargo had been subjected to elevated temperatures during transport, causing bacterial growth in the meat).⁶

Kool Pak seemingly would have Costco accept the danger zone chowder, sell it to its customers, and then when those customers complained of their foodborne illness, that would be sufficient evidence of the chowder’s damaged condition. (See Mot. 6 & Reply 3 (both citing Thousand Springs, 558 F.2d at 543).) That is what happened in Thousand Springs, where thousands of pounds of trout were subjected to elevated temperatures during transport. 558 F.2d at 543. Upon delivery, employees were concerned about the elevated temperatures but visually inspected the fish and found no indication of damage. Id. So, they accepted the fish, immediately refrigerated it, and distributed it to various retail grocers. Id. As night follows day, the retail stores complained: the fish was spoiled. Id. Only then was the fish again inspected, and by that time, of course, there were visible and aromatic indications of decomposition. Id.

Here, rather than inflict spoiled chowder on its customers, Costco rejected the shipment based on concrete evidence that the chowder had been subjected to ten hours cumulative of unacceptably elevated temperatures. On arrival, the chowder would not likely have shown the visible or aromatic signs of damage like the trout in Thousand Springs eventually did, and even there, those signs appeared only after putting the public at risk of foodborne illness. A lack of visible signs of damage upon arrival is not dispositive. “Food distributors have a duty to ensure that the food they provide to the public is safe,” and the requirement that perishable goods be maintained at certain temperatures provides assurance that the shipment is safe for consumption. See Oshkosh Storage, 65 F. Supp. 3d at 638. “Given the risk to customers and a distributor’s own potential liability, it is not unreasonable for a company to adopt a policy of rejecting shipments of food products” that have been subjected to unsafe conditions, “as long as that policy has been clearly announced.” See id. Here, the bill of lading clearly stated that temperatures above 40°F were not acceptable. (See Bill of Lading (indicating acceptable range 33°F to 40°F).)

*5 The Court finds that the temperature logs and AGCS’s expert’s opinion sufficiently raise a triable issue of fact regarding whether the chowder arrived in damaged condition.⁷ Accordingly, Kool Pak is not entitled to summary judgment on this basis.

B. Mitigation

Kool Pak also argues it is entitled to summary judgment because Ivar’s did not mitigate its damages. (See Mot. 6.) Kool Pak asserts that Carmack requires a shipper to salvage any unadulterated portion of the shipment. (Id.) Essentially, Kool Pak contends Ivar’s should have sold some portion of the chowder to someone else.

“Under the Carmack Amendment, [Kool Pak] has the burden to prove that the plaintiff did not exercise reasonable diligence in mitigating its damages.” Project Hope, 250 F.3d at 78; Allied Tube & Conduit Corp. v. S. Pac. Transp. Co., 211 F.3d 367, 372 (7th Cir. 2000); Eastman Kodak Co. v. Westway Motor Freight, Inc., 949 F.2d 317, 319–20 (10th Cir. 1991). “The aggrieved party need only take reasonable steps under the circumstances of the particular case to mitigate its damages.” Eastman Kodak, 949 F.2d at 320.

The Court is not persuaded that Kool Pak has met its burden here and instead concludes, for all the reasons discussed above, that AGCS raises triable issues regarding what steps would have been reasonable for Ivar’s to take under the circumstances. Viewing the facts and evidence in the light most favorable to AGCS, a reasonable fact-finder could conclude that salvage or resale of any portion of the chowder shipment—which had been subjected to temperatures in the danger zone for bacteria growth for more than ten hours cumulative—would have been not only unreasonable, but also immoral.

Kool Pak is not entitled to summary judgment on this basis.

C. Measure of Damages

Lastly, Kool Pak argues it is entitled to partial summary judgment on the issue of damages. (Mot. 7.) Kool Pak contends that, because Ivar’s provided Costco with a replacement shipment of chowder from existing stock, AGCS’s damages should be limited, as a matter of law, to the cost of manufacture of the replacement chowder, plus transportation costs, if any. (Id.) According to Kool Pak, permitting AGCS to recover the invoice value of the damaged shipment would award it “a windfall in the form of a double profit.” (Id.)

“The general rule for determining the amount of damages is the difference between the market value of the property in the condition in which it should have arrived at its destination and its market value in the condition in which it did arrive.” Contempo Metal, 661 F.2d at 764 (first citing Gulf, Colo. & Santa Fe Ry. v. Tex. Packing Co., 244 U.S. 31, 37 (1917); and then citing F.J. McCarty Co. v. S. Pac. Co., 428 F.2d 690, 692 (9th Cir. 1970)). However, the rule is “not absolute” and will not be “applied in cases where it is demonstrated that another rule will better compute actual damages.” F.J. McCarty, 428 F.2d at 692; see also Ill. Cent. R.R. Co. v. Crail, 281 U.S. 57, 64–65 (1930) (holding that the market value measure “may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable”).

*6 Kool Pak relies on Oak Hall Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291 (4th Cir. 1990), for its argument that the measure of damages should be limited to the costs of manufacture. (See Mot. 7; Reply 7.) In Oak Hall, a shipment of specialty academic gowns was rendered worthless by smoke damage during transport. 899 F.2d at 292–94. The court found that the general rule—market value less salvage—was not the best measure of actual loss in that case because the evidence demonstrated “that Oak Hall secured substitute goods …, lost no sales, and had no opportunity for a sale with the[ ] damaged goods.” Id. at 296. Accordingly, the court found that Oak Hall’s actual loss was only “the cost of replacing the damaged merchandise.” Id.

Here, in contrast, as AGCS correctly notes, nothing in the record suggests that Ivar’s was ever paid for the original shipment, that the existing chowder stock would not have been otherwise sold, or that the cost of the existing chowder stock was any different than that for the production of the original shipment. (Opp’n 8.) Kool Pak does not “show that [Ivar’s] could not have sold and earned profit on two batches of unharmed product.” See Eastman, 949 F.2d at 319–20. Therefore, Kool Pak fails to establish the absence of a triable issue regarding the proper measure of damages and is not entitled to partial summary judgment on this issue.

V. CONCLUSION

For the reasons discussed above, the Court DENIES Defendant’s Motion for Summary Judgment. (ECF No. 18.)

IT IS SO ORDERED.

All Citations

Slip Copy, 2023 WL 2916552

Footnotes

1. Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.  
2. Kool Pak’s objection to this statement of fact is OVERRULED. (See CSUF 7.) The fact is relevant and the temperature log does not require an expert’s explanation to be understood. Additionally, Kool Pak did not file its objection in a separate document pursuant to Court rules. (See Scheduling and Case Management Order 8, ECF No. 16.) Thus, to the extent Kool Pak’s objection is directed to some other aspect of CSUF 7 or its supporting evidence, the objection is OVERRULED.  
3. The Complaint alleges the chowder had a “sound market value of $87,076.38” and that AGCS indemnified Ivar’s “for its loss in the amount of $82,076.38.” (Compl. ¶¶ 6–7.) This potential discrepancy is of no consequence to resolution of the Motion.  
4. The excepted causes are not at issue for the purposes of Kool Pak’s Motion.  
5. Both parties submit the temperature logs, titled “Reefer Temperature – Detail,” and do not object to the other party’s exhibit. (See Attridge Decl. Ex. D (“Def.’s Temp. Logs”), ECF No. 18-2.) The temperature logs appear substantively identical, with the exception that Kool Pak’s Exhibit D includes pages from another matter interspersed throughout the log pages. (See id.) Accordingly, for clarity, the Court cites only to AGCS’s Exhibit 2 as the Temperature Logs.  
6. Kool Pak’s selective quotation of Sunset Motor Lines does not serve it well. (Mot. 6.) Kool Pak quotes the general rule, that a shipper is ordinarily bound to accept goods in damaged condition and may not reject them altogether, but the Sunset court continues that this is a “rule[ ] of reason” and it must “give way in the face of reason.” Sunset Motor Lines, 256 F.2d at 498. Regardless, the court in Sunset was addressing the carrier’s arguments regarding the proper salvage value of the goods, not whether the evidence established the fact of damage. See id. at 496–98.  
7. To be clear, the Court is not treating perishable cargo differently than other types of cargo at issue in a Carmack claim; rather, the Court finds the temperature logs and expert’s opinion here sufficient to raise a material dispute over whether AGCS can prove the chowder arrived in damaged condition.  

© 2023 Thomson Reuters. No claim to original U.S. Government Works.  

End of Document

GULF ISLAND SHIPYARDS, LLC, Plaintiff,

v.

MEDITERRANEAN SHIPPING COMPANY (USA), INC., as agent for MSC Mediterranean Shipping Co. S.A., Geneva, Martin Bencher USA, LLC, and Martin Bencher (Scandinavia) A/S, Defendants.

MSC Mediterranean Shipping Co. S.A., Counter-Plaintiff,

v.

Gulf Island Shipyards, LLC, Counter-Defendant.

MSC Mediterranean Shipping Co. S.A., Cross-Plaintiff,

v.

Martin Bencher USA, LLC and Martin Bencher (Scaninanvia) A/S, Cross-Defendants.

1:22-cv-01018 (MKV)

Signed March 29, 2023

Attorneys and Law Firms

Etienne Balart, Sara Barry Kuebel, L. Etienne Balart, Sara Barry Kuebel, Jones Walker LLP, New Orleans, LA, for Plaintiff.

Etienne Balart, Sara Barry Kuebel, L. Etienne Balart, Jones Walker LLP, New Orleans, LA, for Counter-Defendant Gulf Island Shipyards, LLC.

Mark A. Beckman, Gordon & Rees, LLP, New York, NY, for Defendant/Counter-Plaintiff/Cross-Plaintiff Mediterranean Shipping Company (USA) Inc.

Michael Andrew Harowski, Wilson Elser, New Orleans, LA, Raymond Perez, Suma Thomas, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for Defendant/Cross-Defendant Martin Bencher USA, LLC.

Michael Andrew Harowski, Wilson Elser, New Orleans, LA, Suma Thomas, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY, for Defendant/Cross-Defendant Martin Bencher (Scandinavia) A/S.

OPINION AND ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

MARY KAY VYSKOCIL, United States District Judge:

*1 Gulf Island Shipyards, LLC (“Gulf Island”) brings this maritime action against Martin Bencher (Scandinavia) A/S, Martin Bencher USA, LLC (together, “Martin Bencher”),¹ and MSC Mediterranean Shipping Company S.A. (“MSC”)² for damage to a propeller shaft owned by Gulf Island incurred while the propeller shaft was being discharged from one of MSC’s cargo ships. Pending now is Martin Bencher’s motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim and, in the alternative, pursuant to Rule 12(b)(3) for improper venue. Also pending is MSC’s motion for partial summary judgment on the issue of whether any damages available to Gulf Island are limited to $500 per package by the United States Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701 (2006).

BACKGROUND³

Gulf Island is in the business of repairing, constructing, and maintaining marine vessels for private companies and for the United States government. AC ¶ 7. In November 2020, Gulf Island agreed to purchase a propeller shaft from Wärtsilä Defense, Inc. (“Wärtsilä”), which was to be used in connection with a construction project for the U.S. Navy. AC ¶ 8. Pursuant to this agreement, the propeller shaft and other cargo would be shipped from Italy to the United States. AC ¶¶ 9, 14. Wärtsilä was contractually obligated to obtain insurance for the cargo. AC ¶ 14.

Wärtsilä contracted with Martin Bencher to arrange for the shipping of the cargo. AC ¶ 10. Martin Bencher issued a Combined Transport Bill of Lading for the shipment, which identified Wärtsilä as the shipper and Gulf Island as the consignee. ECF No. 74 (“Bencher Br.”), Ex. A. Martin Bencher then contracted with MSC, a vessel operating common carrier, to carry the cargo from Italy to the United States. AC ¶ 10. MSC issued a Sea Waybill (the “MSC Waybill”) for the shipment, identifying Martin Bencher (Scandinavia) A/C as shipper and Martin Bencher USA, LLC as consignee. Bencher Br., Ex. B.⁴

*2 The vessel carrying the cargo arrived in the United States on February 3, 2021. AC ¶ 16. The propeller shaft was being discharged from the vessel that night when it was dropped and seriously damaged. AC ¶ 16. Upon inspection, Gulf Island determined that the propeller shaft could not be repaired and must be replaced. AC ¶ 17.

PROCEDURAL HISTORY

Gulf Island initiated this action by filing a complaint against MSC on August 16, 2021. [ECF No. 1] (“Compl.”).⁵ Gulf Island claimed that MSC was negligent in the care and delivery of cargo in violation of the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701,⁶ Compl. ¶ 17, or “[i]n the alternative,” in violation of the Harter Act, 46 U.S.C. § 30701, “should this Court hold that COGSA does not apply to cargo damaged during discharge from the Vessel.” Compl. ¶ 22. Gulf Island also claimed, “[s]trictly in the alternative,” that “should this Court hold that neither COGSA nor the Harter Act applies, Gulf Island also brings a cause of action for negligence.” Compl. ¶ 24.

On March 22, 2022, Gulf Island filed its Amended Complaint [ECF No. 29] (“AC”), which added the Martin Bencher entities as defendants. The Amended Complaint also added a breach of contract claim, contending “on information and belief,” that Martin Bencher was required to procure insurance for the cargo pursuant to its agreement with Wärtsilä, to which Gulf Island was a third-party beneficiary, but that Martin Bencher failed to do so. AC ¶¶ 35-37.

MSC answered the Amended Complaint. [ECF No. 31] (“Answer”). In so doing, MSC filed a counterclaim against Gulf Island and a crossclaim against Martin Bencher, alleging that after MSC delivered the cargo and the container carrying it to the port in the United States, Gulf Island and Martin Bencher breached the conditions of the MSC Waybill by failing to collect the cargo or return the container, forcing MSC to incur thousands in storage costs and thousands more in damages related to the unreturned container.

Martin Bencher answered the crossclaims [ECF Nos. 48, 65], and moved to dismiss the Amended Complaint [ECF No. 73].⁷ In support of its motion to dismiss, Martin Bencher argued that the Amended Complaint must be

dismissed for failure to state a claim upon which relief can

be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, Martin Bencher argued that the negligence-based claims (Counts I-III) are time-barred by the one-year statute of limitations set by COGSA, and that the breach of contract claim (Count IV) fails because Martin Bencher never had an obligation to insure the cargo. In the alternative, “and only if the court declines to dismiss the claims under Rule 12(b)(6),” Martin Bencher argued that the suit must be dismissed under Rule 12(b)(3) because the Combined Transport Bill of Lading provides that Denmark is the proper venue. Bencher Br. at 16. Gulf Island opposed the motion [ECF No. 80] (“MTD Opp.”),⁸ and Martin Bencher replied [ECF No. 82] (“Bencher Reply”).

*3 Meanwhile, MSC moved for partial summary judgment against Gulf Island. [ECF No. 69]. Specifically, MSC sought an order limiting its potentially liability to $1,500, pursuant to the provision in COGSA which provides a default cap on damages of $500 per package. Gulf Island filed an opposition [ECF No. 75] (“SJ Opp.”), and MSC replied [ECF No. 83] (“MSC Reply”).⁹

LEGAL STANDARDS

I. MOTION TO DISMISS

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). When determining the sufficiency of a claim under Rule 12(b)(6), the Court is normally required to consider only the allegations on the face of the pleading. However, “[d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

II. MOTION FOR SUMMARY JUDGMENT

Summary judgment should be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court “may not make credibility determinations or weigh the evidence.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). The court “must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party.” Id. If there is evidence in the record that supports a reasonable inference in favor of the opposing party, summary judgment is improper. See Brooklyn Ctr. For Indep. of the Disabled v. Metro. Transportation Auth., 11 F.4th 55, 64 (2d Cir. 2021).

DISCUSSION

I. MOTION TO DISMISS

Gulf Island has pled two categories of causes of action in this case. First, Gulf Island brought negligence-based claims which span three causes of action: one for violation of COGSA, one for violation of the Harter Act, and one for common law negligence. These causes of action are all brought in the alternative to one another and, as a result, will be considered in conjunction. Second, Gulf Island brought a cause of action for breach of contract. For the reasons that follow, the Court finds that each cause of action pled by Gulf Island fails to state a claim.¹⁰

A. Negligence-Based Claims

*4 The threshold question in this case is whether the parties’ rights and obligations are governed by either COGSA or the Harter Act or by common law. The Harter Act, enacted in 1893, applies to the carriage of goods to or from any port in the United States. 46 U.S.C. § 30702. COGSA, enacted in 1936, superseded the Harter Act with respect to “the period from the time when the goods are loaded on [to a ship] to the time when they are discharged from the ship,” COGSA § 30701(1)(e), the so-called “tackle-to-tackle” period.¹¹ The Harter Act thus governs where COGSA does not—that is, during the period “prior to loading and after discharge of cargo until proper delivery is made.” Allied Chem. Int’l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 482 (2d Cir. 1985). Thus, which law governs turns on the timing of the alleged damage to the propeller shaft.

Gulf Island argues that it is too early to determine the governing law, as “there is a disputed issue of fact as to when and how this cargo was damaged.” Gulf Opp. at 9-10. The Court disagrees. At the motion to dismiss stage, the Court must accept as true the facts alleged in the complaint. Here, the allegations regarding timing are clear: the damage occurred on February 3, 2021, “while … agents of MSC were discharging the propeller shaft from the Vessel.” AC ¶ 16 (emphasis added). As a result, Gulf Island asserted in the Amended Complaint that the Court should apply the Harter Act only if it holds “that COGSA does not apply to cargo damaged during discharge from the Vessel.” AC ¶ 29. But COGSA, by its express terms, applies to cargo damaged during discharge. It is only after discharge that the Harter Act kicks in. A plain reading of Gulf Island’s own pleadings thus makes clear that COGSA (rather than the Harter Act) governs this case. Importantly, COGSA also preempts the state common law claim brought by Gulf Island, “to the extent that [it] allow[s] for a longer limitations period or a greater recovery than COGSA permits.” Herod’s Stone Design v. Mediterranean Shipping Co. S.A., 434 F. Supp. 3d 142, 160 (S.D.N.Y. 2020).¹²

COGSA (unlike the Harter Act) has a one-year statute of limitations. Section 1303(6) of COGSA provides that “[t]he carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.” 46 U.S.C. § 1303(6). Whether a claim is barred by this statute-of-limitations provision is “[o]rdinarily … an affirmative defense that must be raised in the answer,” but the law is clear that “a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Thea v. Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015).

*5 In the Amended Complaint, Gulf Island alleges that the propeller shaft was damaged when it was delivered to the United States on February 3, 2021.¹³ AC ¶ 16. But Gulf Island did not name the Martin Bencher entities as defendants until the Amended Complaint was filed on March 22, 2022—over one year later. The COGSA claim asserted against Martin Bencher is therefore untimely unless the Amended Complaint relates back to the date of the original complaint. For this to happen, it must be the case that Martin Bencher, among other things, “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C). Because Gulf Island does not even attempt to argue that such a mistake occurred here, the Amended Complaint cannot relate back to the date of the original complaint. See Smith v. City of New York, No. 18-cv-33, 2020 WL 1689752, at *2 n.3 (S.D.N.Y. Apr. 6, 2020) (“It is the plaintiff’s burden to establish that an amended claim relates back to the date of the original complaint.”).

Gulf Island’s negligence-based claims are thus barred by the statute of limitations in COGSA, unless Martin Bencher is estopped from asserting that defense. Courts in this District have recognized that a carrier can be equitably estopped from asserting the statute of limitations as a defense under certain circumstances. Specifically, equitable estoppel has been found to apply “where a plaintiff can show that he was misled by the defendants into reasonably and justifiably believing that the statute of limitations would not be used as defense.” United Perfume Inc. v. Evergreen Marine Corp. (Taiwan), No. 15-cv-9296, 2017 WL 5015779, at *9 (S.D.N.Y. Aug. 7, 2017) (internal quotation marks omitted).

The Amended Complaint does not allege grounds for applying equitable estoppel here. Gulf Island argues for the first time in its opposition brief, however, that Martin Bencher is equitably estopped from asserting the statute of limitations because “[o]n March 9, 2021, Martin Bencher noted that Martin Bencher would ‘lodge [a claim] with [its] marine insurance carrier so that they can send out a surveyor as well’ and that it would ‘then submit a claim to MSC.’ ”¹⁴ MTD Opp. at 9 (quoting MTD Opp., Ex. A). According to Gulf Island, Martin Bencher clearly communicated through this message that it would be pursuing the damage claim on behalf of Gulf Island.

*6 Even assuming the Court can consider such extrinsic evidence at this stage, which is itself dubious, such evidence does not salvage Gulf Island’s claim. The proffered evidence does not establish that Martin Bencher misled Gulf Island into thinking that it would not invoke the statute of limitations or that the statute of limitations would be extended. Moreover, even if the evidence did establish that Gulf Island had been temporarily misled in such a way, there is no indication that the deception continued until the date when the statute of limitations expired. Accordingly, because Gulf Island did not file this suit within the limitations period provided by COGSA and because Martin Bencher is not estopped from asserting a statute of limitations defense, Gulf Island’s COGSA claim is dismissed without prejudice.

B. Breach of Contract

A claim for breach of a maritime contract is treated much like a claim for breach of any other contract. To succeed on such a claim, “a plaintiff must plead sufficient facts to establish: (1) the terms of the maritime contract; (2) that the contract was breached; and (3) the reasonable value of purported damages.” Dynamic Worldwide Logistics, Inc. v. Exclusive Expressions, LLC, 77 F. Supp. 3d 364, 375 (S.D.N.Y. 2015). Gulf Island falters at the first step.

Gulf Island alleged that Martin Bencher was required to procure insurance for the propeller shaft pursuant to its agreement with Wärtsilä, to which Gulf Island was a third-party beneficiary. AC ¶¶ 35-37. According to Gulf Island, the breach of contract occurred when Martin Bencher failed to obtain the requisite insurance. However, Gulf Island fails to identify any specific contract that contains such a requirement. Instead, Gulf Island merely prefaces its vague and conclusory allegation with the phrase “on information and belief.” AC ¶ 35.

But pleading on information and belief is appropriate only in certain circumstances. It can generally be done only where “[1] the facts are peculiarly within the possession and control of the defendant or [2] where the belief is based on factual information that makes the inference of culpability plausible.” Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010). Gulf Island does not even attempt to explain which of these two factors justify its use of this prefatory phrase. And despite the numerous agreements filed in connection with this motion, the Court still is unable to identify which (if any) of those agreements Gulf Island intended to reference with respect to this breach of contract allegation.

Based on the briefing, it appears that Gulf Island might have meant to reference the Combined Transport Bill of Lading. But this assumption does not change the analysis. Gulf Island fails to identify any provision in that agreement, attached to the motion to dismiss, which requires Martin Bencher to procure insurance for the cargo.¹⁵ Still, Gulf Island contends without support that there is a disputed issue of fact on this score and that, at this stage, the Court must accept its well-pleaded allegations as true. But there are no well-pleaded allegations on this issue. Gulf Island’s allegations are entirely conclusory, unsupported by any facts, and belied by the one document that might prove relevant. “More is required, even on a motion to dismiss.” Steed Fin. LDC v. Laser Advisers, Inc., 258 F. Supp. 2d 272, 284 n.9 (S.D.N.Y. 2003).

II. MOTION FOR SUMMARY JUDGMENT

*7 Under COGSA, “[n]either the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package.” COGSA § 4(5). This per package limit does not apply, however, “if the shipper does not have a fair opportunity to declare higher value and pay an excess charge for additional protection.” Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d 99, 101 (2d Cir. 1999). In its motion for partial summary judgment, MSC seeks to limit any potential liability to $1,500 on the ground that the cargo at issue, damaged propeller shafts, was identified as three packages in the MSC Waybill, subject to a $500 limitation per package.

In response, Gulf Island invokes the “fair opportunity” doctrine. Specifically, Gulf Island contends that the per package limit does not apply because it had no opportunity to declare a higher value for the packages prior to shipping. To that end, Gulf Island argues that the MSC Waybill failed to “explicitly incorporate COGSA’s provisions or refer in some way to the $500 per package limitation,” which would have “constitute[d] prima facie evidence of fair opportunity.” Royal Ins. Co. v. M.V. ACX Ruby, No. 97-cv-3710, 1998 WL 524899, at *3 (S.D.N.Y. Aug. 21, 1998). In support of this claim, Gulf Island points to the two page MSC Waybill that MSC filed along with its motion for summary judgment, which contains none of the relevant disclosures. Balart Decl., Ex. B.

In its reply brief, MSC directs the Court to Clause 7.3 of the MSC Waybill, which provides as follows:

The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods. Higher compensation than that provided for in this Sea Waybill may be claimed only when, with the written confirmation of the Carrier, the value of the Goods, declared by the Shipper upon delivery to the Carrier has been stated by the Carrier in the box marked Declared Value on the front of this Sea Waybill and ad valorem charges paid. In that case, the amount of the Declared Value shall be substituted for the limits provided in this Sea Waybill. Any partial loss or damage shall be adjusted pro rata on the basis of such Declared Value.

This clause, on its face, appears fatal to Gulf Island’s position. But there is a problem. The clause is nowhere to be found in the MSC Waybill that MSC filed with its motion for partial summary judgment. Rather, the clause appears only on the third and final page of the MSC Waybill that MSC filed with its reply brief.¹⁶ Marissen Decl., Ex. A. Not only was this third page not included in the version MSC initially filed, but the MSC Waybill relied upon in reply appears to differ in various other ways from the version initially filed. Compare ECF No 71-2, with ECF No. 84-1. There has been no explanation as to what accounts for these differences, leaving the Court, at this stage, entirely unable to determine what shipping documents were provided to what parties and when.¹⁷

*8 Because there is a genuine dispute of material fact regarding the contents of the relevant MSC Waybill, MSC’s motion for partial summary judgment is denied.

CONCLUSION

As set forth herein, the motion to dismiss filed by Martin Bencher is granted without prejudice, and the motion for partial summary judgment filed by MSC is denied.

SO ORDERED.

All Citations

Slip Copy, 2023 WL 2691566

Footnotes

1. The term “Martin Bencher” in this Opinion refers to Martin Bencher (Scandinavia) A/S and/or Martin Bencher USA, LLC, which is reflective not only of the fact that those two entities jointly moved to dismiss the action, but also of the way in which the allegations are presented in the Amended Complaint.  
2. MSC Mediterranean Shipping Company S.A. was erroneously sued as Mediterranean Shipping Company (USA), Inc., as agent for Mediterranean Shipping Co. S.A., Geneva.  
3. The following facts are drawn from the allegations in the Amended Complaint [ECF No. 29] (“AC”), which are presumed true for the purposes of the pending motion to dismiss, as well as from documents that are incorporated by reference in and integral to the Amended Complaint. While extrinsic documents which are neither incorporated by reference nor integral to the Amended Complaint may be considered in connection with the pending motion for partial summary judgment, no such documents are relevant to that motion.  
4. The precise terms of the MSC Waybill are not entirely clear, as the version filed in connection with the motion to dismiss differs from the version that MSC initially filed with its motion for partial summary judgment. Compare Bencher Br., Ex. B, with ECF No. 71-2. (The version filed in connection with the motion to dismiss appears to be the same as the version that MSC filed in connection with its reply brief; however, as discussed below, see infra at 13, MSC provided no explanation for the differing versions.)  
5. The case was initially brought in the Eastern District of Louisiana. [ECF No. 1]. However, MSC made a motion to transfer the venue to this District pursuant to the forum selection clause in the MSC Waybill. [ECF No. 8]. After the motion was granted on February 3, 2022 [ECF No. 16], the case was transferred to the Southern District of New York, where it was assigned a new case number (22-cv-01018).  
6. “In 2006, Congress recodified Title 46 of the U.S. Code, and COGSA was uncodified but reprinted at 46 U.S.C. § 30701, historical and statutory notes.” Caddell Constr. Co. (DE), LLC v. Danmar Liens Ltd., 2018 WL 6726549, at *2 n.1 (S.D.N.Y. Dec. 20, 2018) (citing Pub. L. No. 109-301; 120 Stat. 1485 (2006)). For simplicity’s sake, all further citations to COGSA in this Opinion will therefore be in the format COGSA § ___.”  
7. The motion to dismiss was accompanied by a Memorandum of Law in Support of the Motion to Dismiss [ECF No. 74] (“Bencher Br.”), which attached the following documents: the Combined Transport Bill of Lading [ECF No. 74-1], the MSC Waybill [ECF No. 74-2], the Wärtsilä Invoice [ECF No. 74-3], and the Martin Bencher Invoice [ECF No. 74-4]. There is no dispute between the parties that these documents may be considered by this Court as being either incorporated by reference in or integral to the Amended Complaint. The Court, however, has its doubts with respect to the latter two documents—i.e., the invoices. See infra at 12 n.15.  
8. An opposition brief was also filed by MSC, which responded solely to Martin Bencher’s alternative argument that the Amended Complaint should be dismissed for improper venue. [ECF No. 78]. While this unsolicited opposition is unusual, the Court need not consider the propriety of this filing because the venue issue is not ultimately decided.  
9. The motion for partial summary judgment was accompanied by the following documents: a Memorandum of Law in Support of the Motion for Partial Summary Judgment [ECF No. 70] (“MSC Br.”); the Declaration of Nicholas Hargreaves and attached exhibits [ECF No. 71] (“Hargreaves Decl.”), and a Local Rule 56.1 Statement [ECF No. 72] (“MSC Facts”). Gulf Island’s opposition was accompanied by the Declaration of Etienne Balart and attached exhibits [ECF No. 76] (“Balart Decl.”), and a Counter Local Rule 56.1 Statement [ECF No. 77]. MSC’s reply was filed along with the Declaration of James A. Marrisen [ECF No. 84] (“Marrisen Decl.”), which attached a version of the MSC Waybill [ECF No. 84-1].  
10. Because the Court dismisses the Amended Complaint on the merits, it declines to consider whether venue is proper. See In re SSA Bonds Antitrust Litig., No. 16-cv-3711, 2018 WL 4118979, at *4 (S.D.N.Y. Aug. 28, 2018) (“Because Plaintiffs fail to state a claim, … the Court declines to address personal jurisdiction and venue.”); cf. Chevron Corp. v. Naranjo, 667 F.3d 232, 247 (2d Cir. 2012) (explaining that the Court need not always decide personal jurisdiction if the case can be dismissed entirely on the merits).  
11. While the tackle-to-tackle period is the only time during which COGSA applies by its own force, it is “well settled that parties may extend the application of any provision of the statute beyond this period by contract.” Fireman’s Fund Ins. Co. v. AMC USA, Inc., No. 11-cv-7862, 2012 WL 3283440, at *3 (S.D.N.Y. Aug. 13, 2012). Martin Bencher contends that both the MSC Waybill and the Combined Transport Bill of Lading expressly incorporate COGSA as the governing law while the cargo remained in the custody of the carrier. See Bencher Br., Ex. A ¶ 8.3; Bencher Br., Ex. B ¶ 6. Gulf Island disputes, however, that it ever received the pages of these documents that contain the relevant language. The Court need not resolve this issue because the Amended Complaint alleges that the cargo was damaged during—not after—discharge. As a result, COGSA need not be extended by contract in order to apply.  
12. To the extent that discovery has revealed an inaccuracy in the Amended Complaint, Gulf Island is free to seek leave to amend the Amended Complaint.  
13. In its opposition brief, Gulf Island contends that “delivery” does not occur for statute of limitations purposes until there has been “a reasonable opportunity for the inspection or removal of the goods,” which, according to Gulf Island, did not occur in this case until March 11, 2021. See MTD Opp. at 6 (quoting Universal Ruma Co. v. Mediterranean Shopping Co. S.A., No. 99-cv-10880, 2000 WL 991393, at *3 (S.D.N.Y. July 19, 2000)). But Gulf Island alleged nothing in the Amended Complaint relating to when it first had the opportunity to inspect the cargo; and the Second Circuit has not yet adopted the interpretation of “delivery” that Gulf Island now offers. The Court need not resolve these issues, however, because, as Gulf Island concedes, the statute of limitations ran out before the filing of the Amended Complaint, even assuming the clock did not start to run until March 11, 2021.  
14. Gulf Island refers to its request as one for “equitable tolling.” MTD Opp. at 8. However, the question “is not whether the running of the statute was tolled by defendant’s action but rather whether, as a matter of equity, defendant is estopped from asserting the time bar in defense to this action.” Austin, Nichols & Co. v. Cunard S.S. Ltd., 367 F. Supp. 947, 948 (S.D.N.Y. 1973); see also Ellul v. Congregation of Christian Bros., 774 F.3d 791, 802 (2d Cir. 2014) (“Unlike equitable tolling, which is invoked in cases where the plaintiff is ignorant of his cause of action because of the defendant’s fraudulent concealment, equitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant’s conduct caused him to delay in bringing his suit.”). Relatedly, to the extent that Gulf Island suggests that the Court should toll the statute of limitations because the case was transferred from the Eastern District of Louisiana and because counsel for Gulf Island had to be admitted pro hac vice into this Court before filing its Amended Complaint, the Court finds those arguments unpersuasive.  
15. Martin Bencher contends that various invoices demonstrate that it had no duty to procure insurance. Bencher Br., Exs. C and D. Those invoices, however, do not appear to be integral to the complaint or incorporated by reference. In any event, the Court need not decide whether it is proper to consider those documents, as the breach of contract claim clearly fails even assuming the invoices cannot be considered.  
16. To be sure, the relevant clause was also included in the online terms and conditions of the MSC Waybill, which was attached as Exhibit C to the Hargreaves Declaration (filed with the initial motion for summary judgment). [ECF No. 71-3]. Gulf Island presents various arguments in its opposition for why the online terms and conditions failed to satisfy the fair opportunity doctrine. See SJ Opp. at 2-5. However, MSC did not respond to these arguments in its reply (opting instead to present the new version of the MSC Waybill), and thereby effectively conceded that the online terms did not satisfy the fair opportunity doctrine. See In re UBS AG Secs. Litig., No. 07-cv-11225, 2012 WL 4471265, at *11 (S.D.N.Y. Sept. 28, 2012) (recognizing that a party “concedes through silence” arguments made by its opponent that it fails to address).  
17. This problem also precludes the Court from determining whether the MSC Waybill (as MSC contends) contained a clause which extended the application of COGSA throughout the entire time the goods remained in the custody of the carrier. Such a clause might prove decisive in a separate dispute between the parties, pertaining to the threshold issue of whether the claims are governed by COGSA or by the Harter Act. (Such a dispute may have different considerations at the summary judgment stage than at the motion to dismiss stage. See supra at 7-8.)  

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