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TIMCO ENGG., INC. v. REX & CO.

February 25, 1985

TIMCO ENGINEERING, INC. and TIMCO (HK), LTD.
v.
REX & COMPANY, INC., DECORA INDUSTRIES, INC., DATA DISPLAY, FEOSO EXPRESS, LTD., FLYING TIGER AIRLINES, JAPAN AIRLINES, INC., MAERSK LINES (HONG KONG) LTD., R.G. HOBELMANN & COMPANY, INC., DELTA AIRLINES, PHILADELPHIA NATIONAL BANK, AMERICAN PRESIDENT LAKES, LTD., I.T.O. CORPORATION OF AMERIPORT, ELECTRO-CIRCUITS, INC.



The opinion of the court was delivered by: LUONGO

 In this lawsuit, Timco Engineering, Inc. and Timco (HK) Ltd. (Timco) seek recovery of the price of several shipments of goods sold to Decora Industries, Inc. (Decora) and Data Display. Named as defendants are Decora, Data Display, and several corporations variously involved with the transportation of the goods or the transmittal of relevant documentation. Now before me are the motions of defendant I.T.O. Corporation of Ameriport (I.T.O.) for summary judgment or partial summary judgment, and of defendant R. G. Hobelmann & Company, Inc. (Hobelmann) for summary judgment. For the reasons that follow, I will grant the motions of I.T.O. and Hobelmann for summary judgment.

 As recounted in Timco's complaint, this case arises from purchases by Decora and Data Display of five parcels of goods from Timco's Hong Kong offices. The purchases were independently concluded and their delivery separately arranged. For purposes of this opinion, I will adopt the parties' reference to the transactions as "Goods I, II, III, IV, and V."

 I. Timco v. I.T.O.

 A. Background

 Timco's claim against I.T.O. stems from I.T.O.'s involvement with Goods IV. Goods IV were shipped by sea to Philadelphia via Maersk Lines (Hong Kong) Ltd. At the port of Philadelphia, Maersk engaged I.T.O., a stevedore, to unload cargo which included Timco's parcel.

 Timco alleges that both Maersk and I.T.O. contracted to deliver the goods to the Philadelphia National Bank. On or about June 21, 1980, however, I.T.O. delivered the goods to an unnamed trucking company that delivered the goods to Decora and Data Display rather than to the bank. Claiming that Maersk and I.T.O. breached or negligently performed their contracts, Timco seeks recovery of the price of Goods IV and other relief from I.T.O. and Maersk, jointly and severally.

 I.T.O.'s motion for summary judgment attacks Timco's claim as time-barred under statutory and contractual provisions. This suit was filed on April 21, 1983, almost three years after the delivery of Goods IV. I.T.O. argues that the applicable bill of lading extends the one year statute of limitations in the Carriage of Goods by Sea Act (COGSA) to a stevedore acting under contract with the shipper. Alternatively, I.T.O. argues that the bill of lading itself establishes a one year limitations period for suits due to loss or damage of goods. *fn1"

 Timco's response to the motion is twofold: Timco argues that neither the COGSA limitations period nor the contractual time-bar apply in a case of alleged misdelivery. Alternatively, Timco contends that the bill of lading did not extend the one year limitations period to stevedores with sufficient clarity.

 B. Discussion

 I.T.O. concedes, as it must, that COGSA does not, by its own terms, impose a one year statute of limitations on suits against stevedores. This much is made clear by the Supreme Court's decision in Robert C. Herd & Co., Inc. v. Krawill Machinery Corp., 359 U.S. 297, 3 L. Ed. 2d 820, 79 S. Ct. 766 (1959), a case in which the Court rejected a stevedore's assertion of COGSA's $500 per package limitation of liability. I.T.O.'s claim that a one year limitations period applies, therefore, depends on whether the bill of lading incorporates with respect to stevedores either the COGSA limitations period or an independent limitation on time for suit.

 After careful consideration of the applicable bill of lading, I conclude that I.T.O. is entitled to invoke a one year limitations period. Primarily, the bill of lading expressly makes applicable the provisions of COGSA, *fn2" and it expressly extends to stevedores those statutory and contractual limitations and exonerations from liability that would be available to the carrier. *fn3" Indeed, the bill of lading includes a time for suit clause virtually identical to that provided by COGSA. *fn4"

 I recognize that the courts have required a clear expression of intent to extend COGSA's protections to stevedores. Robert C. Herd & Co., Inc., supra; PPG Industries, Inc. v. Ashland Oil Company - Thomas Petroleum Transit Division, 527 F.2d 502 (3d Cir. 1975); DeLaval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir. 1974). But where, as here, a Himalaya clause, *fn5" plainly grants stevedores those protections accorded carriers, the courts will uphold such a clause. See, e.g., B. Elliott (Canada) Ltd. v. John T. Clark & Son of Maryland, Inc., 704 F.2d 1305 (4th Cir. 1983); Tessler Brothers ( B.C. Ltd. v. Italpacific Line, 494 F.2d 438 (9th Cir. 1974) (limitation of liability to $500 per package).

 Alternatively, I conclude that the bill of lading independently imposes a one year time bar on suits against the stevedore. I.T.O. did not have an independent contract with Timco, thus whatever contractual liability I.T.O. owes to Timco arose from Timco's contract with Maersk. As noted above, *fn6" the bill of lading includes a time for suit provision nearly identical to COGSA's. Given the bill of lading's express extension of ...


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