Filed: Mar. 20, 2012
Latest Update: Feb. 22, 2020
Summary: 11-1467 Edso Exporting LP v. Atlantic Container Line AB UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
Summary: 11-1467 Edso Exporting LP v. Atlantic Container Line AB UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE ..
More
11-1467
Edso Exporting LP v. Atlantic Container Line AB
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of March, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 EDSO EXPORTING LP,
14
15 Plaintiff-Appellee,
16
17 -v.- 11-1467
18
19 ATLANTIC CONTAINER LINE AB,
20
21 Defendant-Appellant,
22
23 M.V. ATLANTIC COMPASS, her engines, boilers, etc.,
24
25 Defendant.
26
27 - - - - - - - - - - - - - - - - - - - -X
1
1 FOR APPELLANT: Vincent M. DeOrchis
2 DeOrchis & Partners, LLP
3 New York, NY
4
5
6 FOR APPELLEE: James F. Sweeney, III, David E.
7 Sigmon
8 Nicoletti Hornig & Sweeney
9 New York, NY
10
11
12 Appeal from a judgment of the United States District
13 Court for the Southern District of New York (McMahon, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the district court’s judgment is reversed
17 and the case is remanded to the district court for entry of
18 partial summary judgment in favor of the defendant.
19
20 Defendant Atlantic Container Line AB (“ACL”) appeals
21 from the district court’s grant of partial summary judgment
22 in favor of plaintiff Edso Exporting LP (“Edso”) on the
23 issue of defendant’s liability for the damage to plaintiff’s
24 crane while in transit from Baltimore to Tripoli. We assume
25 the parties’ familiarity with the underlying facts, the
26 procedural history, and the issues presented for review.
27
28 The Carriage of Goods by Sea Act, Pub. L. No. 521,
29 § 4(5), 49 Stat. 1207 (1936), reprinted in note following 46
30 U.S.C. § 30701 (“COGSA”), limits a carrier’s liability for
31 damage in connection with the transportation of goods to
32 $500 per package, “or in case of goods not shipped in
33 packages, per customary freight unit . . . unless the nature
34 and value of such goods have been declared by the shipper
35 before shipment and inserted in the bill of lading.” It is
36 undisputed both that the crane was unpackaged and that Edso
37 failed to declare its value in the bill of lading. Edso’s
38 damages are therefore limited under COGSA to $500 “per
39 customary freight unit.” The district court concluded that
40 the customary freight unit was each cubic meter of the
41 crane. On appeal, ACL argues that the customary freight
42 unit was each item shipped.
43
44
2
1 “While some courts have held that the customary freight
2 unit is the measurement customarily used to calculate the
3 rate to be charged,” in this Circuit “the customary freight
4 unit is not the standard unit of measure used in the
5 industry, but the actual freight unit used by the parties to
6 calculate freight for the shipment at issue.” FMC Corp. v.
7 S.S. Marjorie Lykes, 851 F.2d 78, 80 (2d Cir. 1988)
8 (internal quotation marks omitted). “To determine the
9 customary freight unit for a particular shipment, the
10 district court should examine the bill of lading, which
11 expresses the contractual relationship in which the intent
12 of the parties is the overarching standard. A district
13 court may also consider the tariff required to be filed with
14 the Federal Maritime Commission, which also sets forth the
15 freight rate.”
Id. (internal quotation marks and citation
16 omitted). Where the bill of lading and the filed tariff are
17 unambiguous as to the freight unit used to calculate freight
18 for the shipment at issue, “the inquiry is ended” and a
19 court may not consider extrinsic evidence of the parties’
20 intent, including negotiations.
Id. at 80-81. In
21 particular, if the bill of lading and tariff unambiguously
22 establish that freight is charged on a lump sum basis, or
23 based on the number of items shipped, it is irrelevant that
24 the parties may, as a practical matter, have calculated
25 freight based on the weight or volume measurements of the
26 goods. See Vigilant Ins. Co. v. M/T “Clipper Legacy”, 656
27 F. Supp. 2d 352, 359 (S.D.N.Y. 2009); Ulrich Ammann Bldg.
28 Equip. Ltd. v. M/V Monsun,
609 F. Supp. 87, 91 (S.D.N.Y.
29 1985).
30
31 On the facts before us, we conclude that the bill of
32 lading and tariff, when read together, unambiguously
33 establish that freight was charged on a per-item, rather
34 than per-cubic meter, basis. The bill of lading does not on
35 its face state that freight is calculated based on the cubic
36 volume of the crane; instead, it describes the basis of the
37 $7,320 freight charge as “AA”, or “As Agreed.” Any
38 ambiguity as to the meaning of this phrase is resolved by
39 the tariff, which is expressly incorporated by reference in
40 the bill of lading. The tariff identifies a Base Freight of
41 $7,320 and the Basis as “Each (EA).” In the context of the
42 $7,320 figure immediately above, “Each (EA)” can only refer
43 to each crane.
44
3
1 Because the bill of lading, as supplemented by the
2 tariff, unambiguously establishes that the customary freight
3 unit in this case was each crane shipped, the district court
4 erred by considering extrinsic evidence as to how the
5 parties calculated the $7,320 figure. Edso argues that the
6 quote confirmation, which indicates that the crane was
7 “Rated at $60w/m,” was incorporated in the bill of lading.
8 But the bill of lading merely references the confirmation,
9 without any elaboration. By contrast, it expressly
10 incorporates by reference the tariff. If the parties had
11 intended to also incorporate the terms of the quote
12 confirmation, they would have done so explicitly.
13
14 Since we find no ambiguity in the governing documents
15 concerning the basis on which freight was charged, ACL was
16 entitled to partial summary judgment limiting its damages to
17 $500. See, e.g., Nowak v. Ironworkers Local 6 Pension Fund,
18 81 F.3d 1182, 1192 (2d Cir. 1996).
19
20 We have considered Edso’s remaining arguments and find
21 them to be without merit. For the foregoing reasons, the
22 judgment of the district court is hereby reversed.
23
24
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
4
