The plaintiff, Hapag-Lloyd (America) LLC, was a common carrier. The plaintiff provided the defendants, Orly Industry Inc, Jacques Torkieh, and Marleen Levy, with shipping services. The plaintiff claimed that the defendants failed to compensate it for the shipment of their goods. The defendants counterclaimed that the plaintiff failed to follow their instructions to change the final destination of their goods from India to Karachi, Pakistan, resulting in a loss of more than USD 100,000 to the defendants.

The plaintiff filed a motion to dismiss on the basis that the defendant' counterclaim is governed by the Carriage of Goods by Sea Act, 46 USC § 30701 (COGSA), which is the exclusive remedy for claims arising from the carriage of goods by sea. The plaintiff contended that 'any recovery under COGSA requires that a party specify the bills of lading for the goods in question', and that the counterclaim failed to do so. Secondly, the plaintiff argued that the counterclaim was time-barred by COGSA's one-year statute of limitations.

The defendants asked that the Court permit them to amend their counterclaim to cure any deficiencies. They also contended that COGSA's one-year statute of limitations was only implicated when goods are lost or damaged and have reached their port of final destination. Because the goods here were not lost or damaged and had not reached their port of final destination, COGSA's one-year statute of limitations did not apply.

Held: The defendants' request for leave to amend their counterclaim is granted. The plaintiff's motion to dismiss the counterclaim is denied. The defendants shall file their amended counterclaim within 14 days.

COGSA regulates the carriage of goods by sea between US and foreign ports: Daewoo Int'l Corp v Sea-Land Orient Ltd 196 F 3d 481, 484 (3d Cir 1999). COGSA 'applies from "tackle to tackle," meaning "the period of time when the goods are loaded on to the time when they are discharged from the ship."': M3 Midstream LLC v S Jersey Port Corp 1 F Supp 3d 289, 294 (DNJ 2014); SPM Corp v M/V Ming Moon 965 F 2d 1297, 1300 (3d Cir 1992) (CMI1849). The statute governs all contracts for carriage of goods by sea to or from ports of the United States in foreign trade. Therefore, 'COGSA applies by its terms to the bill of lading ... because it is a contract for the carriage of goods between a foreign port and a port of the United States': Barretto Peat Inc v Luis Ayala Colon Sucrs Inc 896 F 2d 656, 659 (1st Cir 1990) (CMI1969); see also Ferrostaal Inc v M/V Sea Phoenix 447 F 3d 212, 218 (3d Cir 2006) (CMI1452); EAC Timberlane v Pisces Ltd 745 F 2d 715 (1st Cir 1984) (CMI1648).

When COGSA limits liability, it pre-empts state law, even if the claims are phrased as common law causes of action. The plaintiff issued the defendants the bills of lading to transport their cargo of used tyres. COGSA governs these bills of lading because they are contracts for carriage of goods from ports in the United States to various ports in India: see Norfolk N Ry Co v Kirby 543 US 14, 29, 125 S Ct 385, 160 L Ed 2d 283 (2004) (CMI1454) ('COGSA governs bills of lading for the carriage of goods from the time when the goods are loaded on to the time when they are discharged from the ship.')

A COGSA claim must allege facts supporting two elements: 1) the plaintiff delivered the cargo to the carrier in good condition; and 2) the carrier delivered the cargo to its owner or consignee in damaged condition: Daewoo Int'l (Am) Corp v Sea-Land Orient Ltd 196 F 3d 481, 484 (3d Cir 1999). A bill of lading serves as prima facie evidence that the carrier received the cargo from the shipper in good condition. Because evidence of a bill of lading is essential to making a COGSA claim, plaintiffs are required to specifically identify every relevant bill of lading in their complaints, even when a single carrier issues each of the bills of lading for cargo shipped on a voyage. Accordingly, because evidence of a bill of lading is essential to a COGSA claim, the Court finds that the counterclaim fails to state a claim under COGSA.

The COGSA statute of limitations ‘is one which extinguishes the cause of action itself, and not merely the remedy': Petroleos Mexicanos Refinacion v M/T King A 554 F 3d 99, 104 (3d Cir 2009) (CMI1800). COGSA provides a one-year limitations period for suits to be brought against a carrier: 'In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered'.

The defendants contend that COGSA's statute of limitations does not apply to the counterclaim because the goods were never delivered to their port of final destination and because they were not lost or damaged. The Court is not persuaded by either argument. Even accepting the defendants' contention that Pakistan rather than India was the intended port of final destination, non-delivery does not foreclose the running of COGSA's statute of limitations: PT Asuransi Parolamas v M/V Robert E Lee 1989 AMC 2885, 2891-92 (DNJ 1989); Mesocap Indus v Torm Lines 194 F 3d 1342, 1345 (11th Cir 1999) (CMI1733); Bunge Edible Oil Corp v M/VS' Torm Rask & Ft Steele 949 F 2d 786, 788 (5th Cir 1992). Rather, COGSA's statute of limitations would begin to run on the date the defendants' goods 'should have been delivered' to Pakistan or on the date the defendants had notice that their goods were discharged and stored in India. Thus, accepting as true the defendants' allegation that Pakistan was the intended port of final destination, COGSA's one-year statute of limitations would accrue, at the latest, when notice was provided upon effective delivery.

The Court is similarly unpersuaded by the defendants' argument that COGSA's statute of limitations only applies when goods are lost or damaged. COGSA's one-year proscriptive period applies in suits for improper delivery of goods. See Barretto Peat 660-61 ('A carrier’s failure to collect the bill of lading in exchange for the goods is an improper delivery or mis-delivery which constitutes a breach of the carriage contract subject to the COGSA one-year statute of limitations.'); Leather's Best Inc v SS Mormaclynx 451 F 2d 800 (2d Cir 1971). The counterclaim is governed by COGSA's one-year statute of limitations.

The plaintiff contends that the counterclaim is time-barred because 'all shipments were made prior to April 15, 2020' and 'Defendant[s] failed to commence an action in the form of the Counterclaim until April 15, 2021, in excess of the one year COGSA time bar.' However, the plaintiff has failed to provide any statement or documentation indicating the dates the shipments arrived at their ports of final destination. Without any information regarding the dates of delivery, the Court cannot determine whether the counterclaim was filed in excess of one year after the date the goods were, or should have been, delivered and thus barred by COGSA’s one-year statute of limitations.