United States Court of Appeals,
Eleventh Circuit.
No. 95-4556.
PLASTIQUE TAGS, INC., Plaintiff-Appellant,
v.
ASIA TRANS LINE, INC., Cho Yang Line and DSR Senator Lines,
Defendants-Appellees.
May 28, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-2236-CIV-LCN), Lenore Carrero Nesbitt,
Judge.
Before EDMONDSON, Circuit Judge, and FAY and GIBSON*, Senior
Circuit Judges.
FAY, Senior Circuit Judge:
This appeal arises from the District Court's order of summary
judgment in favor of the defendants. The plaintiff, Plastique
Tags, Inc., brought suit under the Carriage of Goods by Sea Act
(COGSA), alleging that the defendant carriers were liable for the
shortfall in a shipment of goods ordered by Plastique and
transported by the defendants. Because Plastique's evidence is
insufficient as a matter of law, we affirm.
I. BACKGROUND
In October, 1992, Defendant Asia Trans Line, Inc. contracted
to transport one sealed container from Inter-Korea Corporation in
Korea to Plastique in New York. Inter-Korea represented that the
container held 4,437,500 plastic bags. Asia Trans then issued a
bill of lading for the cargo, which stated: " "SHIPPER'S LOAD &
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
COUNT' SAID TO CONTAIN: 5,600 boxes/4,437,500 ... plastic bags."
Asia then contracted with DSR Senator Lines to ship the
container aboard the M/V Cho Yang World. Inter-Korea delivered the
sealed container directly to Senator. Senator then issued another
bill of lading, identical in all material terms to the Asia Trans
bill of lading.
The M/V Cho Yang World delivered the container to New York,
and Senator released the container with its seal intact to a
trucking company. The trucking company transported the container
to Gift Box Corporation of America, Plastique's client. Gift Box
broke the seal, inventoried the container, and found 2,618,500 bags
missing. Gift Box refused to pay Plastique for the shipment.
Approximately one year later, in October of 1993, Plastique sent
notice of the missing bags to an agent of Cho Yang.
Plastique subsequently brought suit against the carriers (but
not Inter-Korea, the shipper). The District Court granted summary
judgment for all the defendants, ruling as a matter of law that
Plastique could not establish a claim under COGSA.
II. STANDARD OF REVIEW
Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the
light most favorable to the non-moving party. Augusta Iron and
Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,
856 (11th Cir.1988).
III. ANALYSIS
To hold a carrier liable for missing or damaged goods under
COGSA, a shipper must prove that the goods were damaged or lost
while in the carrier's custody. See Sony Magnetic Products Inc. v.
Merivienti O/Y, 863 F.2d 1537, 1539 (11th Cir.1989). The shipper
can meet this burden by showing: 1) full delivery of the goods in
good condition to the carrier, and 2) outturn by the carrier of the
cargo with damaged or missing goods. Id.
Under COGSA, "a bill of lading shall be prima facie evidence
of the receipt by the carrier of the goods as therein described
..." 46 U.S.C.App. § 1303(4) (1994). COGSA reflects the reality in
international commerce that a buyer must often pay for goods sight
unseen, relying only on the carrier's bill of lading. A clean bill
of lading:
is a fundamental and vital pillar of international trade and
commerce, indispensable to the conduct and financing of
business involving the sale and transportation of goods
between parties located at a distance from one another. It
constitutes an acknowledgment by a carrier that it has
received the described goods for shipment.
Berisford Metals Corp. v. S/S Salvador, 779 F.2d 841, 845 (2d
Cir.1985), cert. denied, 476 U.S. 1188, 106 S.Ct. 2928, 91 L.Ed.2d
556 (1986). As far back as 1895, the First Circuit recognized that
the bill of lading had
become so universal and necessary a factor in mercantile
credits that the law should make good what the bill of lading
thus holds out.
Pollard v. Reardon, 65 F. 848, 852 (1st Cir.1895).
Thus Plastique argues that the bills of lading issued in this
case constitute prima facie proof that the defendants received full
delivery of the goods, and that any other result would not only
violate COGSA but also threaten the stability of international
commerce. However, we must conclude that under the facts of this
case, the bills of lading at issue are not clean.1 In order for a
bill of lading to constitute prima facie proof that the carrier
received cargo consistent with the terms of the bill, it must
either be without limiting language such as "shipper's load and
count" or it must contain terms that the carrier can verify.
If a bill of lading contains no limiting language such as
"shipper's load and count" then the bill of lading constitutes
prima facie proof for each term. See Nitram, Inc. v. Cretan Life,
599 F.2d 1359 (5th Cir.1979) (though it was not possible for the
carrier to actually count the goods loaded because of the rapidity
of the loading process, where the carrier issued a bill of lading
with no limiting language, the carrier was liable for a shortfall).
If the bill of lading does contain limiting language, but the
terms at issue in the bill of lading are verifiable by the carrier,
then the bill of lading may constitute prima facie proof for those
terms. Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30 (2d
Cir.1982) (the weight of a sealed container is verifiable by a
carrier and so the bill of lading constituted prima facie proof of
the weight at delivery to the carrier, despite limiting language in
the bill of lading).
1
The growth in shipping through the use of sealed containers
has highlighted the importance of clarifying the difference
between a clean bill of lading and a conditional or restricted
bill of lading. When sealed containers are used it is normally
impossible for the carrier to verify the stated contents. In
this case, the parties have stipulated that the container was
sealed when delivered to the carrier, and that the seal was
intact when the container was delivered to Gift Box.
However, we agree with the conclusion of the Third Circuit
that if the bill of lading contains limiting language, it does not
constitute prima facie proof of terms not verifiable by the
carrier. See Bally, Inc. v. M.V. Zim America, 22 F.3d 65 (2d
Cir.1994) (while a bill of lading with limiting language
constituted prima facie proof of the weight of a sealed container,
it did not constitute prima facie proof of the number of items
inside the sealed container).
These distinctions are based on COGSA. COGSA expressly
states that a carrier shall not be bound to include in the bill of
lading a term which he has no reasonable means of checking. 46
U.S.C.App. § 1303(3)(c) (1994). If the carrier includes such a
term without limiting language, he is bound by the bill of lading
whether or not he can verify the term. See Nitram, 599 F.2d at
1369-71 & n. 27. However, if the bill of lading does contain
limiting language stating that a term was supplied by the shipper
and not checked by the carrier, then the carrier is generally not
bound. See Bally, 22 F.3d at 69. The only exception to this
second rule is when the term is easily verifiable by the carrier;
in that case he cannot avoid liability by simply including limiting
language. See Westway, 675 F.2d at 32. This exception is
necessary to prevent carriers from loading obviously empty
containers or obviously inferior goods and avoiding liability by
merely including limiting language.
In the instant case, 1) the bills of lading contained
limiting language and 2) the amount of goods in the sealed
container was not verifiable by the carrier. Thus the bills of
lading do not constitute prima facie proof of delivery to the
carrier of the full amount. Because Plastique presents no other
proof of good delivery, it cannot show that the loss occurred while
the cargo was in the carrier's custody, and its claim must fail.
IV. CONCLUSION
Because Plastique's proof is insufficient as a matter of law,
the judgment of the District Court is hereby AFFIRMED.