This action arose from a shipment of glass doors and windows that were damaged while being transported from Ireland to Connecticut, USA, via the Port of Newark. The shipment was ordered by Klearwall Industries LLC (Klearwall) from Munster Joinery in Cork, Ireland. Klearwall instructed Albatrans Inc (Albatrans) to organise customs clearance and the release of the shipment into the United States, as well as to arrange for the shipment's ocean transport. Albatrans, in turn, arranged for Interocean Agencies Ltd (Interocean), a Dublin-based freight-forwarding company, to book the shipment's ocean transit. Interocean retained Maersk Line, a division of the AP Moller-Maersk Group (Maersk), to provide ocean carriage. Maersk issued two bills of lading to Interocean that consigned the shipments to Albatrans. Albatrans also arranged for Sapsan LLC (Sapsan) to make inland delivery to the shipment's final destination. Klearwall insured the shipment with Hartford Fire Insurance Co (Hartford). Hartford sought USD 306,702.02 for the damage that occurred during the shipping process. For the earlier summary judgment proceedings in this matter, see CMI1296.

Held: Hartford has not established a prima facie case under the Carriage of Goods Act, 46 USC § 30701 (COGSA). Even if it had, the evidence demonstrates on a balance of probabilities that the cargo was damaged by insufficiency of packing. Hartford has not demonstrated a concurrent cause of loss in the fault and neglect of Maersk. Judgment in favour of Maersk.

In a COGSA cause of action a shipper 'who wishes to recover against the carrier for damage to goods bears the initial burden of proving both delivery of goods to the carrier ... in good condition, and outturn by the carrier ... in damaged condition': Transatlantic Marine Claims Agency Inc v M/V OOCL Inspiration 137 F 3d 94, 98 (2d Cir 1998). A plaintiff must make out its prima facie case by a preponderance of the evidence: Ferrostaal Inc v M/V Tupungato 230 Fed App'x 11, 13 (2d Cir 2007).

The issuance of a clean bill of lading creates a presumption of delivery in good condition favourable to the plaintiff. However, 'where the contents of a shipment are not visible or open for inspection, as may be the case when cargo is transferred to the carrier in a sealed container, a clean bill of lading is not sufficient to establish delivery of the goods in good condition': Security Ins Co of Hartford v Old Dominion Freight Line Inc 391 F 3d 77, 83 (2d Cir 2004). Instead, when a carrier is prevented from independently inspecting cargo, the plaintiff must present additional evidence, either direct or circumstantial, in order to establish the initial contents and condition of the cargo. Even a quite detailed bill of lading does not suffice to demonstrate good condition if the container is sealed upon delivery.

Hartford has not met its burden to show that the shipment of doors and windows was delivered to Maersk in good order and condition. Its vague and generalised testimony does not demonstrate on a preponderance of the evidence that the glass windows and doors were in good order and condition at the time of their delivery to Maersk. The testimony about Munster Joinery's general practices for packing and securing shipments to Klearwall are of little or no value because they do not describe the cargo in this case. The near identical wording in the testimony of Hartford's witnesses further weighs against their credibility. While a clean bill of lading may establish a presumption that cargo was tendered in good order and condition, the bills of lading fail to do so here because the containers were sealed when delivered to Maersk. The bills of lading reflect that the containers were sealed. The bills of lading do not demonstrate that the cargo was delivered in good order and condition.

Additionally, while it is undisputed that the cargo was damaged and unusable by the time it reached its final destination in Connecticut, Hartford has not offered evidence of its condition at the time of out-turn from Maersk. After the cargo was discharged by Maersk at the Port of Newark, it was trucked to Connecticut by Sapsan. The trial record does not include evidence about the cargo handling by Sapsan, such as testimony from Sapsan that it trucked the two containers without incident. The body of one cargo container was said to be visibly damaged, with the sides and the roof 'pushed out'. Hartford has not offered evidence that such outwardly visible damage was also apparent to Sapsan at the time that it took custody of the containers at the Port of Newark. Hartford has not shown by a preponderance of the evidence that the cargo was in good order and condition at the time of delivery to Maersk, or that the cargo was damaged at the time of its out-turn at the Port of Newark.

Nor has Hartford demonstrated that the nature of the cargo's damage is sufficient to attribute the harm to Maersk. It also has not relied on this ground when explaining its prima facie case. There is no evidence that the damage occurred due to exposure to water or other elements associated with sea carriage. At trial, Hartford speculated that the damage was necessarily caused by inclement weather on the high seas, but the record contains no evidence of the weather conditions during the cargo's ocean voyage.

Even if Hartford had made out a prima facie case, Maersk has proved by a preponderance of the evidence that the cargo was damaged because of 'insufficiency of packing'. If a plaintiff has made a prima facie case under COGSA, the burden shifts to the defendant to show that one of the statutory COGSA exceptions to liability exists. Once a COGSA exception is established, the burden then returns to the shipper or consignee to show that there were concurrent causes of loss in the fault and neglect of the carrier. 'Insufficiency of packing' is one such statutory exception to liability. There is strong evidence that the glass windows and doors were insufficiently packaged at Munster Joinery. The condition of the containers also supports the conclusion that any damage to the cargo was a result of inadequate packing. The containers were placed back in use immediately upon their return to Newark and used in a shipment to China. Because they were returned to use almost immediately, the weight of the evidence supports the conclusion that the containers suffered only limited and superficial damage during the shipment, a result that is more consistent with deficient packing and loading, rather than the neglect or fault of the carrier.