JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE.
This subrogation suit arises out of the theft of a forty-foot shipping container as it was being transported by truck to a port where it was to be loaded onto a vessel destined for the United States. According to three bills of lading dated November 15, 2017, Defendant Seaboard Marine contracted with non-party Darik Enterprises, Inc. ("the seafood owner") to transport thousands of cases of frozen seafood from "place of receipt" Rama, Nicaragua to "port of loading" Puerto Limon, Costa Rica; then via vessel "Angelina 24" to "port of discharge" Brooklyn, NY; and finally to "place of delivery" Elizabeth, New Jersey (see D.E. 16-2, at 6-9).
It is undisputed that on November 16, 2017, container No. CXRU 155737 8 was transported by Defendant Seaboard Marine by truck from Central American Fisheries to the Costa Rican border, and on November 17, 2017 it was transported to Defendant's container yard "located a few miles outside Puerto Limon, Costa Rica" (D.E. 16, at 3, ¶¶ 7-8). Then, on November 20, 2017 at 12:48 a.m., the container departed Defendant's container yard for the port "where it was to be loaded onto the ship Angelina, which was scheduled to depart that day" (D.E. 16, at 4, ¶ 9). It is undisputed the container was lost in the area between the container yard and the port, which is known as the "carousel" (D.E. 16, at 2).
Summary judgment is appropriate where there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if a reasonable fact finder could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). A fact is material if it may affect the outcome of the case under the applicable substantive law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). If a reasonable fact finder could draw more than one inference from the facts, creating a genuine issue of material fact, summary judgment should not be granted. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). The moving party has the burden of establishing both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Defendant Seaboard Marine argues that it is not liable for the loss at issue because Clause 4(b) of its Bill of Lading Terms and Conditions is "an enforceable provision ... reflecting the parties' agreement to allocate risk in the event of a hijacking" (D.E. 16, at 8). The provision states:
(D.E. 16-1, at 2-3). Subdivision (a) of that Clause defines the applicable time as "during the entire time the Carrier is responsible for the goods."
Plaintiff counters that the Harter Act applies to this action (D.E. 18, at 4-11). The Harter Act states that a "carrier engaged in the carriage of goods to or from any port in the United States," 46 U.S.C. § 30702(a), "may not insert in a bill of lading or shipping document a provision avoiding its liability for loss or damage arising from negligence or fault in ...
Here, Defendant itself asserts that the forty-foot shipping container departed its own container yard at 12:48 a.m. "for carriage in the carousel to the port terminal, where it was to be loaded onto the ship Angelina, which was scheduled to depart that day" (D.E. 16, at 4, ¶ 9). Defendant cites to the affidavit of its own Director of Compliance, Dan O'Neill, for this fact (id.; see also D.E. 16-2, at 4, ¶ 18), and it is the position of both parties that the cargo was lost "[a]fter departing from the container yard" (D.E. 16, at 4, ¶ 11; D.E. 19, ¶ 11). Therefore, the Court concludes that the "carousel" area where the cargo was lost is certainly part of the preloading phase governed by the Harter Act in this Circuit. See Allstate Ins. Co., 703 F.2d at 498.
In its Reply, Defendant cites a string of cases from around the federal judiciary for the position that "the Harter Act does not apply to a [loss] occurring during the inland phase of a multimodal carriage" (D.E. 34, at 4), even when in the custody of the carrier (id. at 5). In the first case in this line, Jagenberg, Inc. v. Georgia Ports Authority, 882 F.Supp. 1065 (S.D. Ga. 1995), the court found "it advisable to keep sea carriers to the standards imposed by the Harter Act until goods are in the hands of land carriers and actually leaving the maritime arena." Id. at 1078. In Jagenberg, cargo was turned over to a separate entity at a port in Savannah, Georgia for storage, and was damaged while being retrieved from the storage area by an "inland trucker hired by [the sea carrier] to take it to Macon." Id. at 1069. Defendant cites other cases applying the same reasoning as in Jagenberg, all from outside the Eleventh Circuit and all involving cargo lost after it was unloaded from a vessel (id. at 4-5).
"[W]hen Gulf Caribbean accepted custody of the extrusions it undertook all obligations imposed upon a carrier by the Harter Act." Allstate Ins. Co., 703 F.2d at 499. The Court holds that the same is true here: when Seaboard Marine accepted custody of the seafood container, it undertook all obligations imposed on it by the Harter Act, under which Clause 4(b) of its Terms and Conditions is void.
Under federal law that governs the carriage of goods to and from ports of the United States, Clause 4(b) in Defendant carrier's Bill of Lading Terms and Conditions is void and does not exculpate Defendant carrier from liability for loss of cargo in its possession prior to loading the cargo onto a vessel. Accordingly, it is
(D.E. 16-1, at 2).