handling instructions, or increased in size or weight. The marks placed on the cargo, argues Keraton, are nothing more than inscriptions designed to allow identification. Keraton describes the damaged cargo as "freestanding" and therefore incapable of constituting a packing under the COGSA.
C. Genuine Issues of Material Fact Exist
The Court concludes that it erred in granting partial summary judgment in favor of Defendants in the face of genuine issues of material fact concerning whether the rolling crane house constitutes a package. The Court's prior decision noted the presence of factual inconsistencies, but erroneously ignored them. See Pt. Keraton Selaras v. M/V Cartagena De Indias, 951 F. Supp. 1196, 1996 WL 596107, at *13 (E.D. Pa. 1996) (stating "the Court notes, however, that the record is not without factual inconsistencies . . . . Irrespective of these inconsistencies, the Court finds that the documents presented by both parties reveal extensive pre-shipment packaging activity").
Despite this earlier conclusion, the Court finds contradicting versions of whether pre-shipment packaging activity occurred. Several submissions support the theory that the rolling crane house was packaged. The Conline Booking Note states: "cargo to be fitted with suitable lifting lugs or other adequate means of lifting and center of gravity to be clearly indicated. Any specially required lifting frames not already on board the vessel shall be supplied by the shipper." (IMC Mem. Supp. Mot. Summ. J. Ex. 3). The original seller of the crane, "MiJack," sent Global a letter instructing that the cargo was to be marked. (See id. Ex. 16). A letter from Charlsie Brown, vice president of Global, on Global stationery, corroborates her deposition testimony that the cranes were sprayed with a rust inhibitor prior to loading. (See id. Ex. 23). At her deposition, Brown revealed the following activity: the application of a rust inhibitor, skidding, marking, and special handling instructions for the shipment of cranes. (Pl.'s Mem. Opp. Def.'s Mot. Summ. J. Ex. F at 79-80). An organization named "Shipside, Inc.," located in Philadelphia, billed Global for "labor, material & equipment to skid one crane . . . [and] services to apply rust inhibitor to various pieces of crane, truck, construction equipment." (IMC Mem. Supp. Mot. Summ. J. Ex. 26).
The record also contains measurement discrepancies. On May 20, 1994, the Global Invoice that billed Keraton for shipping the rolling crane house measured the cargo at 1224.56 CBM. The cargo covered under Bills of Lading dated May 26, 1994, however, totals 1,383.33 CBM. (See id. Exs. 4, 5, 6, 7). At some point between May 20, 1994 and May 26, 1994, the size of the cargo increased by roughly 158 CBM, from 1224 CBM to 1,383 CBM. Similarly, the Shipper's Export Declaration, dated May 23, 1994, measures the cargo at 349.98 CBM while the Packaging Specification and the Bill of Lading declare a measurement of 399.79 CBM. (See id. Ex. 13).
Keraton furnishes contradictory submissions, maintaining that the record contains no Rule 56(c) evidence revealing packaging. Keraton's Motion for Reconsideration contains the affidavit of Delores Cornell, president of the company which disassembled the crane for shipment. Cornell avers that the crane was in no way prepared for transport, specifically stating that the crane was neither "skidded, palletized, wrapped, [nor] in any way packaged or concealed for shipment. The rolling crane house, in particular, was not skidded, placed on pallets, wrapped or in any way packaged for transport. No preparation was done to facilitate handling. The rolling crane house sat on its own treads." (Pl.'s Mem. Supp. Mot. Recons. Ex. 4). James Leonard, the IMC employee who handles vessel operations, testified at his deposition that he was unsure whether the truck crane was wrapped or prepared for transportation in any way and guessed that the only preparation performed involved skidding. (Pl.'s Mem. Opp. Def.'s Mot. Summ. J. Ex. E at 34).
Brown submitted an affidavit in conjunction with Keraton's Motion for Reconsideration ("Brown's Reconsideration Affidavit") in which she states that she arranged for Shipside to spray the machinery with rust protectant, but that the application was not designed to facilitate the handling of the cargo in any way. According to Brown, only one piece of equipment was skidded, and it was not the damaged rolling crane house. Brown also states that the "marks which are typically placed on goods in ocean transit are for identification purposes only. They do not facilitate handling." (Pl.'s Mem. Supp. Mot. Recons. Ex. 1). The Project Cargo Checker's Tally Sheet from Penn Terminals reveals that "no markings" were made to the rolling crane house. (Id. Ex. 2).
The rolling crane house, maintains Keraton, did not increase in size. Upon arrival at Penn Terminals on May 20, 1994, the crane measured 410"l X 150"w X 163"h. The Mate's Receipt states that the rolling crane house contained identical measurements when it was loaded onto the ship. (See id. Exs. 2, 3). Brown's Reconsideration Affidavit reveals that when she prepared the Bill of Lading, she initially listed the cubic measure of the rolling crane house at 349.98 CBM. Brown was later advised "by Intermarine that after measurement at the pier, the size of the crane was different than originally stated by MiJack [the original retailer of the crane]. Accordingly, Intermarine changed the Bill of Lading to represent the actual cubic measure of the crane, 399.79 CBM." (Id. Ex. 1). Brown concludes "the increase of the cubic measure of the crane, as listed on the shipping documents, from 349.98 to 399.79, was not because of the addition of packaging material to the rolling crane house." (Id.) Brown reaches the same conclusion regarding the increase in the measurement of all cargo listed in the documents from 1224.56 CBM to 1383.33 CBM.
Accordingly, the Court faces a genuine issue of material fact as to whether the damaged rolling crane house constitutes a package for purposes of the COGSA, precluding the possibility of deciding whether the liability limitation applies per package or per customary freight unit. In light of these factual issues, the Court is compelled to grant Keraton's Motion for Reconsideration, vacate the October 21, 1996 Order, and deny the Cross-Motions for Partial Summary Judgment. In reaching this decision, the Court does not disturb its prior interpretation of the parties' intent relating to the number of packages as contained in the Number of Packages column. The Court holds only that a genuine issue of material fact exists regarding whether the rolling crane house constitutes a package. The parties understanding with respect to the quantity of cargo damaged -- as evidenced in the Number of Packages column -- means nothing if the cargo shipped, the rolling crane house, is not a package. See Seguros Illiman S.A. v. M/V Popi P, 929 F.2d 89, 95 (2d Cir. 1991) (stating "we therefore agree with the shippers that the numbers in the 'NO. OF PKGS' column reflect the parties understanding as to the number of packages, and we would apply those numbers in determining the aggregate COGSA per-package limitation if the item to which the numbers referred to could fairly be considered a 'package'").
An appropriate Order follows.
O R D E R
AND NOW, this 3rd day of April, 1997, upon consideration of Plaintiff's Motion for Reconsideration (Doc. Nos. 38, 39, 45), Defendants' Responses thereto (Doc. Nos. 41, 42, 46, 47), and an oral argument held on January 2, 1997 (see Doc. No. 43), IT IS HEREBY ORDERED THAT :
1. Plaintiff's Motion is GRANTED.
2. The Court's Order accompanying Pt. Keraton Selaras v. M/V Cartagena De Indias, 951 F. Supp. 1196, 1996 WL 596107 (E.D. Pa. 1996) (granting Defendants' Motions for Partial Summary Judgment and denying Plaintiff's Cross-Motion), is VACATED.