OPINION OF THE COURT
Murphy, P. J.The operative facts are fairly stated in the opinion at Special Term (103 Misc 2d 208). It should also be noted *298that clause 13 of the bill of lading is substantially the same as the controlling provision in the Carriage of Goods by Sea Act (COGSA) (US Code, tit 46, § 1304, subd [5]). Special Term decided this dispute under COGSA rather than under the bill of lading.
As a general rule, this court must decide a case on the law as it exists at the time of its decision (Matter of Temkin v Karagheuzoff, 34 NY2d 324, 329). In this area regulated by COGSA and the Harter Act (US Code, tit 46, § 190 et seq.), this court must follow Federal law. Particular deference must be taken of the pursuasive authority of the Second Circuit cases in this area. (See M. & T. Trust Co. v Export S. S. Corp., 262 NY 92.) In a recent opinion (Mitsui & Co. v American Export Lines, 636 F2d 807) that postdated Special Term’s decision, the Second Circuit Court of Appeals reached conclusions that were virtually identical with those of Special Term. The Second Circuit in Mitsui abandoned the “functional economics” test that it had propounded in Royal Typewriter Co., Div. Litton Business Systems v M/V Kulmerland (483 F2d 645, 648, 649). Instead, it chose to follow the approach taken in Leather’s Best v S.S. Mormaclynx (451 F2d 800) that normally a container supplied by a carrier is not a COGSA “package” if its contents and the number of units are disclosed. As a corollary, it may be said that the Second Circuit will now treat the packaged units, declared in a bill of lading, to be the “packages” under COGSA.
Carmen, the shipper, disclosed to Moore-McCormack, the carrier, that the subject container had been filled with 2,555 cartons of curlers. Under the approach advanced in Mitsui (supra), the cartons must be considered the “packages” for COGSA purposes. It should be emphasized, however, that COGSA does not control in this proceeding because the cartons disappeared after they were discharged from the vessel (US Code, tit 46, § 1301, subd [e]). Nonetheless, the contract of carriage continued to govern the parties’ relationship after discharge but before delivery (Leather’s Best v S.S. Mormaclynx, supra, at p 807). Under clause 13 of that contract, Moore-McCormack must be held liable as a bailee for the loss of these “packages”. Its *299liability may be upheld under a theory of breach of contract or negligence.
In passing, two other observations should be made. First, the general maritime law, rather than New York law, governs the bailment issue raised in this proceeding (David Crystal, Inc. v Cunard S.S. Co., 223 F Supp 273, 284, affd 339 F2d 295, 298, cert den 380 US 976). At this point in time, the Federal courts have not yet adopted the reasoning in I.C.C. Metals v Municipal Warehouse Co. (50 NY2d 657) that a bailor is entitled to summary judgment against a bailee on the theory of conversion if the bailee cannot satisfactorily explain the disappearance of goods from a warehouse or terminal. In the future, the Federal courts may be unwilling to find that a bailee should be held responsible for conversion in this situation absent proof that the bailee, rather than a third person, actually converted the property. Until the Federal courts have addressed themselves to this question, it would be premature for the court to conclude that I.C.C. Metals forms a part of general maritime law.
Second, had the “functional economics” test been reached upon this appeal, a finding would have been made that the metal container was the “package”. Even if the affidavit of Moore-McCormack’s expert, Allen, is discounted, the depositions of Daddio, Otto and Nohr overwhelmingly indicate that it was not feasible to ship the curlers in a “break bulk” fashion on an ocean-going vessel. Given a choice, both Clairol and Carmen had always shipped the cartons of curlers in containers rather than in a “break bulk” manner. While there is some indication that, in limited instances, the cartons had been shipped “break bulk”, it is evident from the testimony that this was a matter of necessity rather than of choice. The shipment of the cartons on pallets, when an airplane was used, only reinforces the conclusion that it was not feasible to ship the cartons as “break bulk” cargo. Although Clairol distributed the cartons by trailer in the United States, that mode of transportation presented risks that were clearly less severe than those occasioned on an ocean-going vessel. Theoretically, any product could be shipped “break bulk” in a vessel if extreme safety measures were taken by the crew and the longshoremen. However, as a practical matter, many *300products, such as these curlers, could not withstand the ordinary handling and hazards of “break bulk” shipment upon an ocean-going vessel.
Accordingly, the order of the Supreme Court, New York County (Shapiro, J.), entered February 19, 1980, which, inter alia, (i) granted Clairol’s motion for summary judgment against Moore-McCormack, (ii) directed an assessment of damages, and (iii) denied Moore-McCormack’s motion for partial summary judgment limiting its liability to $500, should be affirmed, with costs.