This action arose from a shipment of glass doors and windows that were damaged while being transported from Cork, Ireland, to Stratford, Connecticut, via the Port of Newark. The shipment was ordered by Klearwall Industries LLC (Klearwall). 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. One Maersk bill of lading identified '1 Container said to Contain 102 pieces', and the other identified '1 Container Said to Contain 160 PIECES'. Albatrans also arranged for Sapsan LLC to make inland delivery to the shipment's final destination. Klearwall insured the shipment with Hartford Fire Insurance Co (Hartford). Hartford seeks USD 306,702.02 for the damage that occurred during the shipping process.

There is no evidence in the summary judgment record about where and how the shipment incurred damage. In Ireland, Munster Joinery loaded the containers, and Maersk did not vouch for their contents. Pursuant to the two bills of lading, Maersk was to provide two empty 45-foot containers, and it had no contractual responsibility for loading and securing the containers' contents. Maersk had no personnel present when the containers were loaded, and Maersk's responsibilities were limited to the ocean transport of the loaded containers from Cork to Newark. Maersk's role in the transport ended when the containers arrived at the port in Newark, New Jersey.

Maersk and Albatrans brought separate motions for summary judgment.

Held: Maersk's motion for summary judgment is denied. Albatrans's motion for summary judgment is upheld.

Maersk

There is no dispute that the Maersk bills of lading are evidence of contracts for the carriage of goods by sea to or from ports of the United States in foreign trade within the meaning of COGSA, 46 USC § 30701. Maersk and Hartford agree that COGSA governs any damages award. Maersk argues that the plain language of the bills of lading demonstrates that the two containers carrying the shipment were 'packages', as that term is used in COGSA § 4(5), each of which has a damages cap of USD 500, for a total damages award of USD 1,000.

As a threshold matter, Hartford argues that Maersk's motion should be denied because there are factual disputes as to whether the USD 500 limitation applies under the 'fair opportunity doctrine', which provides that the COGSA limit is inapplicable if the shipper does not have a fair opportunity to declare higher value and pay an excess charge for additional protection. Hartford contends that Klearwall was not presented with a copy of Maersk's bill of lading until after the shipment was delivered, and therefore did not have fair notice of Maersk's limit of liability.

However, the bills of lading identify Interocean as the shipper and Klearwall is not named in the bills of lading. Hartford does not point to evidence that Klearwall was the shipper, as opposed to Interocean, and that Klearwall was therefore entitled to a fair opportunity to declare a higher value on the bills of lading. Its unsupported factual statement is inconsistent with the bills of lading and otherwise unsupported in the summary judgment record. The fair opportunity doctrine therefore does not defeat Maersk's summary judgment motion.

Maersk principally seeks a ruling that its damages are limited to USD 1,000, on the basis that the Maersk bills of lading identify only two 'packages' ie the containers. Hartford argues that the bills of lading identify a total of 262 'pieces' in the shipment, each of which should constitute a 'package' under COGSA.

COGSA does not define the term 'package', and '[m]yriad courts have struggled with what a COGSA package is': Orient Overseas Container Line Ltd v Sea-Land Serv Inc 122 F Supp 2d 481, 486 (SDNY 2000). In determining the parties' understanding of what constitutes a 'package', courts 'begin with a bill of lading's use of the term "package," and will adopt the unit of packaging unambiguously identified in the bill of lading. In the event of ambiguity, we look elsewhere in the bill of lading and to other evidence of the parties' intentions.': Seguros Illimani SA v M/V Popi P 929 F 2d 89, 94 (2d Cir 1991). However, 'bills of lading are contracts of adhesion and, as such, are strictly construed against the carrier': Allied Chem Int'l Corp v Companhia de Navegacao Lloyd Brasileiro 775 F 2d 476, 482 (2d Cir 1985).

In scrutinising bills of lading that identify both 'pieces' and a 'container', courts give attention to the text of the bill of lading, as well as the types of cargo at issue and extrinsic evidence of how the cargo was actually packed and prepared. As noted, bills of lading are strictly construed against the carrier, and a container is not considered a 'package' unless the bill of lading expressly indicates the parties' agreement to that effect. Here, the bills of lading do not include express language that reflects an agreement to treat a container as a package, and the 'pieces' identified in the bills of lading can reasonably be understood from the description as being 'packages'.

In addition, while the Court need not review extrinsic evidence to deny Maersk's motion, it bears noting that there are disputed facts as to how the shipment was prepared. Hartford asserts that each item was individually packed with adhesive films and separated and secured with cardboard, plywood, or other protective materials, and points to photographs that purport to show as much. Maersk cites to deposition testimony from a witness who described the items as unpackaged and unsecured.

Albatrans

Albatrans argues that it acted solely as a forwarding entity and was neither a common carrier nor a NVOCC. It contends that it cannot be liable under COGSA as a freight forwarder, and that without evidence of its own negligence, it cannot be liable for damage to the shipment. Albatrans has provided evidence that its responsibilities were those of a freight forwarder. Hartford does not point to evidence that would permit a reasonable trier of fact to conclude that Albatrans acted as a NVOCC.