Opinion
02 Civ. 8779 (LAP).
March 17, 2005
OPINION AND ORDER
The present dispute arises out of the transit-related loss of a shipment of pharmaceuticals en route from Jacksonville, Florida to Memphis, Tennessee. Plaintiff, American Home Assurance ("AHA"), as a subrogee of Pfizer, Inc., seeks to recover from defendant shipping company, CSX Lines, Inc., ("CSX") damages in the amount of $1,381,632.48 for an alleged breach of contract. CSX filed a Third-Party Complaint against Wall Street Systems, Inc., ("Wall Street"), a regional ground carrier, alleging that Wall Street is responsible for any damages arising out of Plaintiff's claim. AHA and CSX currently cross-move for summary judgment on the issue of a contractual limitation on Defendants' liability.
AHA pairs its summary judgment motion with a motion under Fed.R.Civ.P. 12(f) to strike certain affirmative defenses. However, because the summary judgment motion and Rule 12(f) motion implicate the same issues, facts and case law, a ruling on one will necessarily decide the other.
I. Background
In May 2001, Pfizer hired CSX to transport a shipment of the drug, Zithromax, from Barceloneta, Puerto Rico, to Memphis, Tennessee. Pfizer packed 2,156 cartons of Zithromax onto 44 pallets, or skids, and loaded the skids into a sealed container. CSX received the sealed container at San Juan, Puerto Rico and delivered it on board one of its vessels to the port of Jacksonville, Florida. At Jacksonville, the container was picked up by Wall Street, a trucking company hired by CSX to transport the container from Jacksonville to the final destination, Memphis, Tennessee.
Sometime between May 18 and May 20, 2001, the cargo was stolen in and around the Williams Travel Plaza in Kingsland, Georgia. While police authorities were able to recover the cargo only days later, Pfizer destroyed the cargo without any attempt to seek salvage on the secondary market, citing quality control concerns. AHA, as Pfizer's insurer for the shipment in question, paid $1,381,632.48 to Pfizer for the loss.
The present lawsuit followed when AHA, as the subrogee of Pfizer, filed its Complaint against CSX, Wall Street and others, on November 4, 2002. AHA primarily alleges that CSX and Wall Street should be held jointly and severally liable for a breaching CSX Lines of Puerto Rico, Inc. Confidential Agreement No. 9899-00-0130 (the "Service Agreement"). Specifically, AHA believes that CSX breached the "Policies and Procedures for Pfizer, Inc." section of the Service Agreement, which reads:
The Complaint asserts eight causes of action: (1) breach of contract; (2) breach of bailment; (3) material breach of contract; (4) negligence; (5) gross negligence; (6) fradulent misrepresentation; (7) negligent misrepresentation; (8) breach of warranty.
HOW DOES THE CARRIER PREVENT TRUCKER FROM PARKING CONTAINER [IN] UNSECURED AREAS
With respect to Pfizer's loads the motor carrier will be instructed to stay hooked to the load until the driver reaches a secured container yard or the customer's facility.
(Complaint, Ex. A) AHA contends that Wall Street, and CSX by selecting Wall Street as its land carrier, violated the above provision by leaving Pfizer's cargo unattended in an unsecured facility, where it was in fact stolen.
CSX asserts an affirmative defense in response to AHA's claims: that the Service Agreement between the parties provides a limitation on liability that potentially caps CSX's and Wall Street's damages well below the requested $1.3 million dollar figure. The liability limitation provision is contained on CSX's bill of lading and reads as follows:
VALUATION . . . When the U.S. Carriage of Goods by Sea Act does not apply of its own force, the $1,000 limitation shall apply to each shipping or customary freight unit or piece provided always that any compulsorily applicable limitation which is greater than the $1,000 limitation shall apply in place of the $1,000 limitation.
(R. 56.1 Stmt., Ex. B) CSX argues that the bill of lading, and consequently the liability limitation, is incorporated by reference into the Service Agreement between CSX and Pfizer. AHA disagrees. The parties presently file cross-motions for summary judgment to determine the applicability and scope of the liability limitation provision.
Reference is to the Joint Local Rule 56.1 Statement of Undisputed Material Facts.
II. The Standard for Summary Judgment
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be rendered forthwith if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that 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); see Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1982)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, and the non-moving party may not "rest upon . . . mere allegations or denials," St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). However, only when it is apparent than no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).
III. Discussion
The parties' summary judgment motions raise the following questions with respect to the liability limitation: (1) is the bill of lading incorporated by reference in the Service Agreement between CSX and Pfizer; (2) if so, to what denomination of cargo does the $1,000 liability limitation apply; and (3) does CSX's liability limitation extend to Wall Street as CSX's ground carrier?
A. Is CSX's Bill of Lading Incorporated into the Service Agreement Between CSX and Pfizer?
Determining whether CSX's bill of lading is incorporated by reference into the Security Agreement between CSX and Pfizer is a question of contract interpretation. In a contract dispute, a motion for summary judgment may be granted only where the agreement's language is unambiguous and conveys a definite meaning. See Sayers v. The Rochester Telephone Corp. Supp. Mgmt. Pension Plan, 7 F.3d 1091, 1094 (2d Cir. 1993); Seiden Associates, Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir 1992). "Contractual language is unambiguous when it has a definite and precise meaning, unattended by any danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion." John Hancock Mutual Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 461 (2d Cir. 1994).
The bill of lading is specifically mentioned at several points in the Service Agreement:
III. CARGO, PAYMENT AND SERVICE COMMITTMENTS
C. Except as otherwise expressly set forth herein, all Contract cargo transported pursuant to this Contract shall be subject to all charges, surcharges, arbitraries, assessorials, and rules, including the terms of Carrier's bill of lading, published in Carrier's Tariff 414, or successor tariffs, which tariff is incorporated herein by reference and may be amended by Carrier from time to time (hereafter referred to as "Tariff 414"), except as otherwise noted in Attachment A.
D. The terms and conditions of Carrier's bill of lading, covering individual shipments under this Contract shall apply to shipments hereunder and is incorporated herein by reference. In the event of a conflict among or between the terms of this Contract, Tariff 414, or any of them, the terms of the Carrier's bill of lading shall prevail over the other two, and the terms of this Contract shall prevail over Tariff 414.
(R. 56.1 Stmt., Ex. A) The plain language of these contract provisions is clear. Pursuant to Article III, Section C, all cargo moving under the contract is subject to the terms contained in CSX's bill of lading — including the $1,000 liability limitation. Article III, Section D of the contract reinforces this notion, by specifically incorporating the terms and conditions of CSX's bill of lading by reference.
AHA points to Section F in Article III of the contract, which states that: "All cargo moving under this Contract shall move on a non-negotiable bill of lading." (R. 56.1 Stmt., Ex. A) Using this language, AHA argues that every shipment must be accompanied by a CSX-issued bill of lading and that any shipment not so accompanied cannot be subject to the terms contained on the bill of lading. While CSX stipulates that the shipment of Zithromax at the center of this action did not move on a CSX-issued bill of lading (R. 56.1 Stmt., ¶ 4-8), it does not automatically follow that the cargo was not subject to the terms contained on the bill of lading.
This can initially be shown from a plain reading of Sections C, D and F alongside one another. While it might have been the intention of the parties to move each individual cargo shipment on a CSX-issued bill of lading, the direction to do so in Section F removes no force from Sections C or D applying the terms of the bill of lading to all cargo moving under the contract. Had Section F contained additional language instructing, perhaps, that the terms of the bill of lading would not apply to any shipment moving without a CSX-issued bill of lading, my reading of the contract would naturally change. However, in the absence of such a clause, I see no reason to invalidate the straightforward incorporation of CSX's bill of lading contained in Sections C and D of the Security Agreement. Thus, the clear and unambiguous words of Article III, Sections C and D apply the terms of the CSX bill of lading, with its limitation of liability, to all cargo moving under the contract, including the Zithromax at issue.
While I independently rely on the plain reading of the contract for this finding, incorporation of the bill of lading also fits squarely with two external factors: the parties' course of dealing and Pfizer's decision to insure independently with AHA. Mike Pletschett, the manager of CSX's cargo claims department, speaks to the parties' course of dealing:
It is not CSX's practice to issue a bill of lading in the Puerto Rico/U.S. mainland trade. There is no need for a physical bill of lading in this trade as a majority of the cargo carried by CSX is subject to Service Agreements and usually involves an inter-company shipment like the one at issue in this case which was a shipment from Pfizer to Pfizer. I have been advised by the documentation people at CSX lines that this is the way that shipments under the CSX/Pfizer Service Agreement have been handled, both before and after the suit.
(Statement of Mike Pletschett, signed January 29, 2004, ¶ 2) AHA has offered no description of the course of dealing between CSX and Pfizer that contradicts Mr. Pletschett's account. Thus, in discerning CSX and Pfizer's original contractual intent, on the record before me I can only conclude that the parties commonly completed shipments for which CSX bills of lading were not issued — and this practice strongly undercuts AHA's reading of the Security Agreement. If bills of lading went routinely unissued, and therefore the terms on the bill of lading could not apply, Sections C and D of the contract would be rendered meaningless — not a favored result in contract interpretation. See, e.g., Shepley v. New Coleman Holdings, Inc., 174 F.3d 65, 72 (2d Cir. 1999).
A second external factor supporting inclusion of the terms of the bill of lading in the Security Agreement is Pfizer's decision to insure independently its cargo shipments with AHA. It cannot be overlooked that if Pfizer truly objected to the $1,000 liability limitation contained in the bill of lading, it had the opportunity either to negotiate a different limitation as part of the Service Agreement or to declare the value of the cargo to CSX to secure full value coverage. See General Elec. Co. v. M/V Nedlloyd, 817 F.2d 1022, 1028 (2d Cir 1987), cert. denied, 484 U.S. 1011 (1988) (opportunity to declare a higher value can be established by language contained in the contract of carriage). However, rather than renegotiating the terms of the Service Agreement or paying CSX to insure the cargo, Pfizer purchased separate cargo insurance from AHA. See Travelers Indemnity Co. v. Sam Houston, 26 F.3d 895, 900 (9th Cir. 1994) (shipper who chooses to insure its cargo through an independent insurance company has made a conscious decision not to opt out of COGSA's liability limitation); Rosenbruch v. American Export Isbrandtsen Lines, 357 F.Supp. 982, 985 (S.D.N.Y. 1973) (the choice is between requiring the carrier to increase its coverage and pass on the costs of the same to all shippers . . . and granting the option to the shipper to obtain the coverage that he desires). Pfizer's decision to insure independently its cargo with AHA can only be viewed as a tacit acceptance of the bill of lading's liability limitation and recognition that the terms of the bill of lading were in fact included in the Service Agreement.
AHA argues that the Travelers and Rosenbruch opinions are irrelevant because the cases were decided under COGSA (United States Carriage of Goods by Sea Act, 46 U.S.C. § 1300, et seq.), while the present case falls outside of COGSA's purview. However, the differences between a COGSA and this case are not sufficient to make COGSA cases irrelevant to the present matter.
COGSA governs cargo shipments between foreign ports and domestic United States ports. See Colgate Palmolive Co. v. s/s Dart Canada, 724 F.2d 313 (2d Cir. 1983). COGSA also features a standard $500 liability limitation. 46 U.S.C. § 1300. It would be incorrect to treat a large number of relevant cases as inapplicable simply because the cargo in this case moved from Puerto Rico to Florida, two domestic ports, and because CSX's liability limitation is $1,000 as opposed to $500. AHA's blanket objection to any cases arising under COGSA is overbroad.
Given the parties' practice of not shipping under a bill of lading and Pfizer's decision to purchase independently AHA insurance, AHA's reading of the contract — that the terms of the bill of lading should only apply to shipments moving under a CSX — issued bill of lading — would render Sections C and D completely meaningless. Consequently, I find that Sections C, D and F in the Service Agreement are "definite and precise" in their meaning, John Hancock, 22 F.3d at 461, and incorporate into the agreement the terms contained in CSX's bill of lading.
B. To What Denomination of Cargo Does the Liability Limitation Apply?
Unfortunately, the liability limitation contained in CSX's bill of lading is considerably less clear than the Service Agreement. The relevant provision in the bill of lading reads:
When the U.S. Carriage of Goods by Sea Act does not apply of its own force, the $1,000 limitation shall apply to each shipping or customary freight unit or piece provided always that any compulsorily applicable limitation which is greater than the $1,000 limitation shall apply in place of the $1,000 limitation.
(R. 56.1 Stmt., Ex. B) The provision offers three distinct denominations to which the $1,000 limitation may apply. The limitation could apply to each: (1) shipping unit; (2) customary freight unit; or (3) piece. In more practical terms, the "shipping unit" refers to a pallet, or skid, of which there were 44, the "customary freight unit" likely refers to the entire sealed container, while "piece" refers to a single case of Zithromax, of which there were 2,156 in the container.
For purposes of deciding the present summary judgment motions, the case law is not sufficiently clear to clearly hold either the shipping unit or the customary freight unit to be the appropriate denomination. However, I do find that the piece count — the 2,156 figure that AHA advocates as the correct number — is not the appropriate denomination.
In reaching its conclusion that the $1,000 limitation must apply to the greater piece count, AHA relies primarily on the testimony of CSX's documentation manager, Carol Foster. Ms. Foster testified:
Q. Under "Item" it says "2,156 case," then "Description" is "Drugs or Medicine"; do you see that there?
A. Yes, I do.
Q. What does that information mean to you?
A. What does this information — the 2,156?
Q. Yes.
A. That is the piece count.
Q. Where does your office get that information from?
A. From the shipping instructions.
Q. Okay. By that you mean Foster Exhibit No. 6?
A. Yes.
Q. Looking at Foster Exhibit 6, the description of the cargo is slightly different, correct?
A. Yes, it is.
Q. It says, "44 skids containing 2,156 cases," correct?
A. Yes, it does.
Q. How come the invoice doesn't make any reference to the number of skids?
A. At the time this invoice was created it was our practice to use the larger piece count.
Q. Why was that?
A. That is how we are trained to do it.
Q. Is that the practice today?
A. No it is not.
(Dep. of Carol Foster, sworn to on June 25, 2003, 19-47) Clearly, Ms. Foster describes CSX's own internal documentation procedure as recording the larger piece count for a given shipment. However, AHA then concludes that because CSX internally records the larger piece count, the $1,000 limitation must also apply to the larger piece count. Such a conclusion is not warranted.
Initially, AHA offers no case law to support the proposition that a shipper's internal documentation plays a dispositive role in contract interpretation. However, several additional factors argue against using the piece count, the most important of which is the basic dollar amounts that would be implicated. Applying the $1,000 liability limitation to the 2,156 piece count would mean that CSX was insuring Pfizer's Zithromax shipment for up to $2,156,000, approximately $700,000 more than the $1,381,632.48 actual value of the cargo that AHA seeks to recover here. As CSX carried the entire shipment for only $1,620, this result was clearly unintended.
An additional argument weighing against application of the limitation to the larger piece count is that Pfizer shipped and sealed the container in Puerto Rico before delivering the container to CSX in San Juan. (R. 56.1 Stmt., ¶ 7-10) Further, the container would not be unsealed and unloaded until it reached Pfizer's facility in Memphis, Tennessee.
CSX's only knowledge of the contents of the container came from the numbers prepared on Pfizer's invoice: 44 skids containing 2,156 cases. CSX could not verify the contents of the container by any other means. It seems highly unlikely that CSX would agree to insure over two thousand individual cases of Zithromax for $1,000 each without ever actually seeing, much less counting, the cargo itself. See, e.g., Poliskie Line Oceaniczne v. Hooker Chemical Corp., 499 F.Supp. 94, 99 (S.D.N.Y. 1980) (carrier not obliged to open a container sealed by a shipper so as to verify its contents).
AHA counters, arguing that to ignore the 2,156 count would be to remove all meaning from the term "piece" in the limitation provision. See Allendale Mut. Ins. Co. v. Excess Ins. Co., 992 F.Supp. 271, 274 (S.D.N.Y. 1997) (holding that a contract must be construed to give consistent effect, if possible, to all its terms). However, to read "piece" as the definitive term in the limitation provision would remove meaning from the "shipping" and "freight unit" terms. AHA's argument is therefore unpersuasive as it equally affects both parties.
While it is clear that application of the $1,000 limitation to the 2,156 count would be incorrect, I cannot say for the purposes of these two summary judgment motions whether the $1,000 limitation should apply to the shipping unit count, 44 skids, or the customary freight unit count, the sealed container.
Some cases reason that, under COGSA, the liability limitation is based on the customary freight unit or container. See Union Carbide Corp. v. m/v MICHELE, et al., 764 F.Supp. 783, 786 (S.D.N.Y. 1990) (20-foot tank container held to be customary freight unit); Classic Fashions v. Navieras N.P.R., Inc., 68 F.Supp.2d 1312, 1314 (S.D. Fla. 1999) (sealed container loaded with clothing held to be customary freight unit).
Several cases also find a skid or pallet to be the shipping unit for COGSA limitation purposes. See DCI Management Group, Inc. v. m/v MIDEN AGAN, No. 03 Civ. 448, slip op. at 1 (S.D.N.Y. May 14, 2004) (finding eight pallets to be a shipment of eight packages for limitation purposes); Standard Electrica v. Hamburg Sudamerikanische, 375 F.2d 943, 946 (2d Cir. 1967) ("Each pallet had the physical characteristics of a package and was clearly a bundle put up for transportation."); Groupe Chegaray/V. De Chalus v. PO Containers, 251 F.3d 1359, 1367-68 (11th Cir. 2001) (finding 42 pallets and not 2,270 cartons to be the applicable package for limitation purposes).
Because of the imprecise nature of the language used in the liability limitation itself, and the substantial case law that supports readings for both the sealed container and the 44 pallets, I am unable at this juncture to say whether the parties originally intended the $1,000 limitation to apply to the "shipping unit" or the "customary freight unit." I do find, however, that the liability limitation applies to either the sealed container or the 44 pallets, limiting liability to either $1,000 or $44,000.
C. Does CSX's Liability Limitation apply to Wall Street?
AHA also briefly argues that Wall Street is not entitled to any protection granted by the liability limitation contained in CSX's bill of lading. The relevant provision covering other parties, also known as a "Himalaya" clause, appears in the bill of lading:
PARTIES COVERED. If the vessel or other craft in use is not owned by or chartered by demise to Carrier [CSX], this bill of lading shall take effect for purposes of limitation of liability only as a contract with the owner or demise charterer as the case may be. If it shall be adjudged that any person other than the owner or demise charterer (including the master, timer charterer, agents, stevedores, lashers, watchmen and other independent contractors) is the carrier or bailee of the goods, or is otherwise liable in contract or in tort, all rights, exemptions and limitations of liability provided by law and by the terms of this bill of lading shall be available to such other persons.
(R. 56.1 Stmt., Ex. B) AHA argues that Himalaya clauses are viewed as contracts of adhesion and should therefore be strictly construed against a carrier. See Allied Chemical v. Companhia de Navegacao, 775 F.2d 476, 482 (2d Cir. 1985); Lucky-Goldstar v. S.S. California Mercury, 750 F.Supp. 141, 145 (S.D.N.Y. 1990). AHA therefore reasons that "master, time charterer, agents, stevedores, lashers, watchment and other independent contractors" cannot be read to include Wall Street, leaving it unprotected by the $1,000 limitation in the bill of lading.
A plain reading of the Himalaya clause proves AHA's argument incorrect. Initially, AHA ignores the fact that the "master, time charterer . . . independent contractor" language in the clause appears as a parenthetical, bounded by the phrase, "If it shall be adjudged that any person other than the owner or demise charterer . . . is the carrier or the bailee of the goods . . . [the] limitations of liability provided by law and by the terms of this bill of lading shall be available to such other persons." As CSX is strictly an ocean carrier, both parties to the contract knew that land portions of carriage would be undertaken by an independent shipper. Given that the bill of lading clause comprehensively covers "any" person performing such services, it necessarily covers Wall Street. See Wemhoener Pressen v. Ceres Marine Terminals, 5 F.3d 734, 743 (4th Cir. 1993) (finding subcontractor protected by bill of lading clause covering "any person whomsoever by whom the Carriage of any portion of the Carriage is performed or undertaken."); Generali v. D'Amico, 766 F.2d 485, 490 (11th Cir. 1985) ("It is sufficient that the terms express a clear intent to extend benefits to . . . persons engaged by the carrier to perform the functions and duties of the carrier within the scope of the carriage contract.")
IV. Conclusion
Accordingly, Plaintiff's motion for partial summary judgment and motion to strike certain affirmative defenses pursuant to Fed.R.Civ.P. 12(f) (Docket No. 20) is denied. Defendants' motion for partial summary judgment (Docket No. 24) is granted.
Counsel shall confer and inform the Court by letter no later than April 1, 2005, how they would like to proceed.
SO ORDERED