This was an action for cargo damage brought by the plaintiff against the defendant. The defendant moved for partial summary judgment, arguing that any damages are limited to USD 500 pursuant to the US Carriage of Goods by Sea Act (COGSA), 46 USC § 30701.

Held: Motion denied.

COGSA states that '[n]either the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package': § 4(5). This per package limitation on liability does not apply, however, 'if the shipper does not have a fair opportunity to declare higher value and pay an excess charge for additional protection': Nippon Fire & Marine Ins Co v MV Tourcoing 167 F 3d 99, 101 (2d Cir 1999) (CMI1503). Here, the parties dispute whether the plaintiff had a 'fair opportunity' to declare a higher value for the contents of the package he shipped.

The defendant argues that COGSA applies to this case, and that the plaintiff's '1 crate' constitutes one package under COGSA.

The defendant, however, entirely fails to contend with the fair opportunity doctrine in its opening brief. Where a bill of lading 'explicitly incorporate[s] COGSA's provisions or refer[s] in some way to the $500 per package limitation', this 'constitute[s] prima facie evidence of fair opportunity': Royal Ins Co v MV ACX Ruby, No. 97-cv-3710 (MBM), 1998 WL 524899 *3 (SD NY, 21 Aug 1998). The defendant submits a version of the bill of lading that contains the relevant paragraph, entitled 'LIMITATION OF LIABILITY', which states that 'the value of the cargo shall be deemed to be $500 per package' unless 'otherwise provided' and mentions COGSA. However, the plaintiff submits evidence that he 'never saw the reverse side of the Bill of Lading' because he 'placed the shipping order via email', and then 'only the top half of the [bill of lading] was sent' back to his shipping agent.

COGSA requires a fair opportunity to declare higher value than its $500 limitation, and the plaintiff does offer evidence that he lacked sufficient notice. At this stage of the case, the Court cannot weigh the conflicting evidence and decide whether the front of the bill of lading provided the plaintiff with sufficient notice and a fair opportunity to avoid the USD 500 limitation on liability.