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SELARAS v. M/V CARTAGENA DE INDIAS

October 17, 1996

PT. KERATON SELARAS; QQ PT. CITRAMARGA NUSAPHALA PERSADA; QQ KONSORSIUM HUTAMA YALA; and QQ PT. CITRAMARGA NUSAPHALA PERSADA
v.
M/V CARTAGENA DE INDIAS, her engines, machinery, tackle, apparel, etc.; INDUSTRIAL MARITIME CARRIERS (BAHAMAS), INC.; and FLOTA MERCANTE GRANCOLOMBIANA, S.A.



The opinion of the court was delivered by: PADOVA

MEMORANDUM

 Padova, J.

 October 17, 1996

 Plaintiff, an Indonesian importer of construction equipment, hired Defendants, overseas carriers, to transport a mobile truck crane from Philadelphia, Pennsylvania to Jakarta Pusat, Indonesia. After the crane sustained damage while in transit, Plaintiff brought this action pursuant to the Carriage of Goods by Sea Act, 46 U.S.C.A.App. §§ 1300-1315 (West 1975) ("COGSA"). Both Plaintiff and Defendants currently submit cross-motions for summary judgment for the Court's consideration. For the following reasons, the Court will grant Defendants' Motions for Summary Judgment and deny Plaintiff's Motion for Summary Judgment.

 I. Introduction

 A. The Parties

 Plaintiff, P.T. Keraton Selaras ("Keraton"), is a corporation organized and existing under the laws of Indonesia, with its principal place of business in Jakarta Pusat, Indonesia. Keraton imports and operates heavy machinery and construction equipment in Indonesia. Defendant M/V Cartagena De Indias ("Vessel") is the ship on which the truck crane was transported from the United States to Indonesia. Keraton named the Vessel, her engines, machinery, tackle, apparel, etc. as a Defendant in this action. Defendant Flota Mercante Grancolombiana, S.A. ("FMC"), a Columbian company, owns, charters, manages, and operates the Vessel.

 In making transportation arrangements for the mobile truck crane, Keraton contacted Global Transport Services, Inc. ("Global") to act as its agent and freight forwarder. Global, not a party to this litigation, entered into a contract of carriage with Defendant Industrial Maritime Carriers (Bahamas), Inc. ("IMC") to transport the cargo. *fn1" IMC chartered the Vessel from FMC. In short, Keraton approached Global to arrange transport; Global contracted with IMC; and IMC chartered the Vessel from FMC.

 B. The Documents

 On May 16, 1994, when Keraton purchased the mobile truck crane for $ 275,000, the bill of sale listed that item as:

 " UNIT P/H CRANE CN 9125 T.C. 140 TON CRAN 1979 S/N (10 PCS)." Def. IMC's Mem. Supp. Mot. Summ. J. Ex. 15 ("IMC Mem."). In an effort to transport the crane from the United States to Indonesia, Keraton engaged Global to assist in making the shipping arrangements. *fn2" Keraton dealt with Ms. Charlsie Brown, vice president of Global. Global arranged to transport the truck crane aboard a ship chartered by IMC and obtained marine insurance. The mobile truck crane was dismantled into ten pieces for shipping purposes. A document styled "Packing Specification" describes the dismantled equipment:

 S STC: 1 UNIT P/H CRANE CN 9125 T.C. 140 TON CRANE 1979 S/N 47850 . . .

 
WEIGHT KILOS 87167 KGS
 
MEASUREMENT 399.79 CBM

 Pl.'s Mem. Supp. Mot. Summ. J. Ex. C ("Pl.'s Mem.").

 Under the COGSA, the term "contract of carriage" applies to

 
contracts of carriage covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and holder of the same.

 46 U.S.C.A.App. § 1301(b). In the instant case, the relationship between the parties was governed by a "booking note" and a "bill of lading." *fn3" Specifically, IMC issued a document styled "'Conline Booking' Liner Booking Note" ("Conline Booking Note"). Through the Conline Booking Note, IMC agreed to ship the truck crane for Keraton. That document lists Keraton as "Merchant," IMC as "Carrier," and Global as "Merchant's representatives at loading port." IMC Mem. Ex. 3.

 The Conline Booking Note contains, on the reverse side, a "General Paramount Clause" stating:

 
The Hague Rule contained in the International Convention for the Unification of certain rules relating to Bills of Lading dated Brussels the 25th shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments to which no such enactments are compulsorily applicable, the terms of the said Convention shall apply. Trades where Hague-Visby Rules Apply. In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on February 23, 1968 -The Hague-Visby Rules -- apply compulsorily, the provisions of the respective legislation shall be considered incorporated in this Bill of Lading. The Carrier takes all reservations possible under such applicable legislation, relating to the period before loading and after, discharging, and while the goods are in the charge of another carrier, and to deck cargo and lie animals.

 Id. In addition, the Conline Booking Note contains a paragraph titled "U.S. Trade. Period of Responsibility" which provides: "in case the Contract evidenced by this Bill of Lading is subject to the U.S. Carriage of Goods by Sea Act, then the provisions stated in said Act shall govern before loading and after discharge and throughout the entire time the goods are in the Carrier's custody." Id. IMC also issued a "Bill of Lading" which lists Global as the "Forwarding Agent," Keraton as the "Notify Party," and the Vessel as "Cartagena." The Bill of Lading describes the truck crane as follows: Particulars Furnished By Shipper No. of Pkgs Description of Packages and Goods Gross Weight Measure -10- PCS: "1 UNIT P/H CRANE CN 9125 TC 87167 KGS 399.79 CBM 140 TON CRANE 1979 S/N 47850

 IMC Mem. Ex. 5. The reverse side of the Bill of Lading contains various provisions governing the contractual relationship between IMC and other parties, sharing the "General Paramount" and "Trade Period of Responsibility" paragraphs found in the Conline Booking Note.

 The ten specific pieces of the mobile truck crane covered by the Bill of Lading issued by IMC included a counterweight, rolling crane house, 10 foot jib, inner boom, center boom, tip boom, boom insert, boom jib, block insert, and an additional counterweight. Pl.'s Mem. Ex. C. A document titled "Global Transport Services, Inc. Invoice No. 602112A" ("Global Invoice") imposes port charges and handling/forwarding fees. On the reverse side of that document, Global furnishes a disclaimer:

 
2. Liability Limitation of Third Parties. The company is authorized to select and engage carriers . . . to transport, store, deal with and deliver the goods, all of whom should be considered as the agents of the Customers, and the goods may be entrusted to such agencies subject to all conditions as to limitation of liability for loss, damage, expense or delay and to all rules, regulations, forwarders, custom brokers, agents, warehousemen, and others.
 
* * *

 6. Declaring Higher Valuation. Inasmuch as truckers, carriers . . . and others to whom the goods are entrusted usually limit their liability for loss damage unless a higher value is declared and a charge based on such higher value is agreed to by said truckers, etc., the Company must receive specific written instructions from the Customer to pay such higher charge based on valuation and the trucker, etc., must accept such higher declared value, otherwise the valuation limitation of liability set forth herein in paragraph 8 [limiting liability to $ 50.00 per shipment] with respect to any claim against the Company and subject to the provisions of paragraph 2 above.

 
7. Insurance. The Company will make reasonable efforts to effect marine, fire, theft, and other insurance upon the goods . . . .

 IMC. Mem. Ex. 4.

 IMC filed a "Tariff" with the Federal Maritime Commission articulating its policies. It provides, with respect to rates, in pertinent part, "wherever freight charges are assessed on weight or measurement basis, the freight will be computed on the measurement basis, the freight will be computed on the weight or measurement of the individual package, whichever produces the greater revenue." Pl.'s Mem. Ex. J. With regard to rate selection, the Tariff provides:

 
Rule 2-C Choice of Rates.
 
1. This tariff offers shippers a choice of freight rates dependent upon whether the shipment is made subject to the bill of lading limit of value or a higher limit of value.
 
2. If the shipper elects to ship at a value in excess of the bill of lading limit of value, he shall declare the value in writing before delivery. The shipment is then subject to the provisions of Rule 12.
 
3. Should the shipper fail to declare valuation in excess of the bill of lading limit of value, in writing before delivery, such non-declaration shall constitute an election by the shipper to ship on the basis of the bill of lading limit of value and any liability of the carrier shall be computed on ...

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