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ACCIAI SPECIALI TERNI USA, INC. v. M/V BERANE
February 5, 2002
ACCIAI SPECIALI TERNI USA, INC., PLAINTIFF,
M/V BERANE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Frederic N. Smalkin, Chief United States District Judge.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on a motion for partial summary
judgment, filed by the plaintiff Acciai Speciali Terni USA, Inc.
("AST"), which seeks a declaration that the Hague-Visby Rules of Italy,
rather than the U.S. Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C.
App. §§ 1300-1315, set the limit to the potential liability of
defendants Oktoih Overseas Shipping Ltd. ("Oktoih") and Trans Sea
Transport N.V. ("Trans Sea"). AST is seeking relief for cargo damage
allegedly caused by Oktoih, the carrier, and Trans Sea, the charterer of
the carrying vessel, through negligence and breach of contract. The
issues have been well briefed by AST and Trans Sea, and no oral hearing
is necessary.*fn1 Local Rule 105.6 (D.Md.).
The general facts of this case are not in dispute. Acciai Speciali
Terni, S.p.A., engaged the carrier Oktoih to make a shipment of steel
sheets and coils from the port of Civitavecchia, Italy, to Baltimore,
Maryland, on board the M/V Berane. Oktoih in turn entered into a charter
party with Trans Sea, which agreed to perform the actual carriage. The
vessel departed Civitavecchia on April 18, 2000, and arrived in Baltimore
on May 10, 2000. Trans Sea carried the steel under a bill of lading,
whose contractual provisions govern the rights and obligations both of
Trans Sea and of AST. See Wemhoener Pressen v. Ceres Marine Terminals,
Inc., 5 F.3d 734, 738 (4th Cir. 1993). AST alleges that Trans Sea
received the steel cargo in good condition but delivered it damaged at
the port of destination.*fn2 This admiralty
Clause 2 of the bill of lading, the General Paramount Clause,
The Hague Rules contained in the International
Convention for the Unification of certain rules
relating to Bills of Lading . . . as enacted in the
country of shipment 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
Trades where Hague-Visby Rules apply.
In trades where . . . 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 charge of another Carrier, and
to deck cargo . . . .
The bill of lading also contains Additional Clause B, entitled "U.S.
Trade [and] Period of Responsibility," which states:
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.
SUMMARY JUDGMENT STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when there is no genuine issue as to any material
fact, and the moving party is entitled to summary judgment as a matter of
law. In Anderson, the Supreme Court explained that, in considering a
motion for summary judgment, "the judge's function is not himself to
weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." 477 U.S. at 249. A dispute
about a material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id. at
248. Thus, "the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the [nonmoving party] on the
evidence presented." Id. at 252. In undertaking this inquiry, a court
must view the facts and the reasonable inferences drawn therefrom "in the
light most favorable to the party opposing the motion," Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), but the
opponent must bring forth evidence upon which a reasonable fact finder
could rely, Celotex Corp., 477 U.S. at 324. The mere existence of a
"scintilla" of evidence in support of the nonmoving party's case is not
sufficient to preclude an order granting summary judgment. Anderson, 477
U.S. at 252. Here, there is no factual dispute, but only a question of
law presented, which is amenable to resolution on summary judgment.
COGSA, the American version of the Hague Rules, applies ex proprio
vigore "to all contracts for carriage of goods by sea to or from ports of
the United States in foreign trade." 46 U.S.C. App. § 1312; see also
id. § 1300; Rockwell Int'l Corp. v. S/S Koeln Express, 1987 A.M.C.
2537, 2539 (D.Md. 1987). It applies likewise to charter parties, so long
as bills of lading are
issued under them. 46 U.S.C. § 1301(b),
1305. The Hague-Visby Rules, which the United States has not adopted,
operate such like COGSA for shipments outbound from a signatory nation.
They apply ex proprio vigore whenever bills of lading are issued in a
signatory nation or carriage is from a port in a signatory nation. See
Protocol to Amend the International Convention for the Unification of
Certain Rules of Law Relating to Bills of Lading, Feb. 23, 1968, 1977
Gr. Brit. T.S. No. 83 (Cmnd. 6944) (entered into force June 23, 1977)
(hereinafter the "Visby Amendments"), art. 5, reprinted in 3 Thomas J.
Schoenbaum, Admiralty and Maritime Law 755-56 (3d ed. 2001). Unlike
COGSA, however, the Hague-Visby Rules do not apply compulsorily to
shipments inbound to a signatory nation.*fn3 Thus, for shipments to the
United States from a nation that has enacted the Hague-Visby Rules, two
statutory regimes apply compulsorily: the Hague-Visby Rules and COGSA.
And so a legal Gordian knot has been tied. Congress, however, per
proprium vigorem maiorem, has cut it effortlessly and with aplomb ...
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