This case involved damage to an international shipment of a refrigerated container of 20 pallets and 2,300 packages of Duke's Mayonnaise carried from Charleston, South Carolina, to Chile. The mayonnaise shipment was damaged when it was transported at a temperature of -18.3° C rather than 18.3° C, causing a loss of USD 42,854.00. Pegasus Parts Distribution LLC (Pegasus) made a claim under its insurance policy with the plaintiff, who maintains that it is subrogated to the rights of Pegasus.

International Brand Development, allegedly an associated company of Pegasus, purchased the mayonnaise from the supplier, CF Sauer Co (Sauer), and sold it to Hipermercados Tottus SA (Tottus) in Chile on FOB terms. Tottus retained the defendant to make the arrangements for the ocean transportation of the shipment. The defendant in turn co-ordinated the ocean transportation with an ocean carrier, Maersk Line A/S, doing business as Sealand, to transport the shipment. Tottus had a separate contract directly with Sealand for these services. For the inland transportation of the shipment, Tottus requested that Dynamix arrange to transport the shipment from Sauer's facility in Greenville, South Carolina, to the port in Charleston.

The mayonnaise was loaded into a refrigerated container by Sauer. The plaintiff and its insureds and subrogors did not witness the loading of the shipment. The defendant asserts that it was not involved in the loading of the mayonnaise into the container, nor did it direct the trucker it retained to bring an empty container to Sauer's facility or maintain the container at any temperature; and presumably, Sauer or Dynamix ordered an empty container to be delivered to Sauer's facility. The plaintiff contends that the defendant arranged for the refrigerated container and for the trucker to pick up the shipment. The container arrived in Charleston on 30 October 2018. Upon arrival at the port, the container was received and weighed by the South Carolina State Ports Authority. The Ports Authority issued a carrier interchange ticket noting the temperature of the container to be -18.3° C. Sealand, rather than the defendant, issued the bill of lading for the shipment. The bill of lading indicated that the temperature of the container was -18.3° C. On 5 November 2018, Dynamix requested a copy of the Sealand bill of lading from the defendant, which was provided on the same day. The next day, Dynamix advised the defendant of the mistake and stated that the product could be in jeopardy if the temperature had in fact been set to -18.3° C. The defendant said that it had confirmed with Sealand that the booking noted the correct temperature, and the defendant provided Dynamix with a copy of a corrected bill of lading showing a temperature setting of 18.3° C.

The defendant maintains that it was Sealand's responsibility to ensure that the bill of lading was accurate, and that Sealand erred when it issued a bill of lading showing the incorrect temperature setting and failed to correct it. The plaintiff disagrees, stating that the defendant erroneously advised Sealand that the reefer should be shipped at -18.3° C.

The plaintiff asserts two claims against the defendant: first, as carrier under the Carriage of Goods by Sea Act 1936 (US) (COGSA); and second, as freight forwarder. The defendant moves for summary judgment on both counts, arguing that: (1) the plaintiff's subrogor(s) did not have title or risk of loss for the subject shipment; (2) the defendant acted at all times as an ocean freight forwarder, not as an ocean carrier; (3) the defendant properly discharged its duties as a freight forwarder by providing the correct temperature instructions to Sealand, the ocean carrier; (4) the defendant's liability was limited to USD 50 in any event under its terms and conditions; and (5) the plaintiff, as subrogee, lacked standing to bring its claims.

Held: Summary judgment is granted on Count I. The case will proceed to a bench trial on Count II.

'Enacted in 1936, COGSA governs all foreign trade contracts for the carriage of goods by sea to or from U.S. ports': Underwriters at Interest Under Bailee Ins Policy No 09RTAMIA1158 v SeaTruck Inc, 858 F Supp 2d 1334, 1337 (SD Fla 2012). 'The purpose of COGSA was to achieve international uniformity and to redress the edge in bargaining power enjoyed by carriers over shipper and cargo interests by setting out certain duties and responsibilities of carriers that cannot be avoided even by express contractual provision': Polo Ralph Lauren LP v Tropical Shipping & Constr Co, 215 F 3d 1217, 1220 (11th Cir 2000) (CMI1536).

'There is a well settled legal distinction between forwarders and carriers': ABN Amro Verzekeringen BV v Geologistics Americas Inc, 253 F Supp 2d 757, 764 (SDNY 2003). A 'carrier' under COGSA 'means the owner, manager, charterer, agent, or master of a vessel': 46 USC § 30701. A carrier 'does not merely arrange for transportation of goods, but takes on the responsibility of delivering the goods': Scholastic Inc v M/V Kitano, 362 F Supp 2d 449, 455 (SDNY 2005).

In contrast, a freight forwarder simply facilitates the movement of cargo to the ocean vessel. The freight forwarder: secures cargo space with a steamship company, gives advice on governmental licensing requirements, proper port of exit and letter of credit intricacies, and arranges to have the cargo reach the seaboard in time to meet the designated vessel. Freight forwarders generally make arrangements for the movement of cargo at the request of clients and are vitally different from carriers, such as vessels, truckers, stevedores or warehouses, which are directly involved in transporting the cargo. ...

Of course a party that calls itself a freight forwarder might in fact be performing the functions of a carrier, in which case function would govern over form. But the burden of demonstrating any deviation from what freight forwarders normally do in the maritime context must rest, and heavily so, on the party who would show such deviation: Prima US Inc v Panalpina Inc, 223 F 3d 126, 129, 130 n 1 (2d Cir 2000).

Under the approach set forth in Zima Corp v MV Roman Pazinski, 493 F Supp 268 (SDNY 1980), 'a party may be determined to be a carrier through a four-factor test: (1) how the party's obligation is expressed in documents pertaining to the agreement; (2) the history of dealings between the parties; (3) whether the party issued a bill of lading; and (4) how the party charged the shipper'. See Dimond Rigging Co LLC v BDP Intl Inc, 914 F 3d 435, 445 n 13 (6th Cir 2019) (CMI583).

The defendant is not a carrier under COGSA's plain language. It is undisputed that Sealand owned the vessel on which the container of mayonnaise was shipped. There is no indication that the defendant was the 'owner, manager, charterer, agent, or master of' that vessel.

Nor is the defendant a carrier under the Zima test. The defendant was retained by Tottus to make arrangements for the ocean transportation of the shipment. The defendant contracted with Sealand to transport the shipment, and Tottus had a separate contract with Sealand for these services. Sealand, not the defendant, issued the bill of lading and shipped the container of mayonnaise aboard its vessel. The bill of lading identified the defendant as the forwarder. Finally, the plaintiff does not suggest that the defendant consolidated cargo or was involved with the ocean shipment of the refrigerated container.

Based on these facts, the defendant acted as a freight forwarder, not a carrier. The defendant therefore cannot be liable to the plaintiff as an ocean carrier under COGSA.

The plaintiff appears to concede that the defendant did not act as an ocean carrier, but insists that the defendant breached its duties as a 'domestic land carrier'. By default, COGSA applies only from the time cargo is loaded onto a carrier's vessel until it is discharged. While parties to a contract may agree to apply COGSA to other periods of transit by so indicating in the bill of lading, there is no indication that the parties here have done so. Consequently, the plaintiff cannot sustain a COGSA claim against the defendant as a carrier arising from the inland portion of the transportation.