The plaintiffs were the owners or insurers of cargo carried on the M/V AS Fortuna, which was owned by Fortuna OPCO BV (Fortuna). Shipco Transport Inc (Shipco) and JAS Forwarding Services (Ireland) Ltd (JAS) were non-vessel operating common carriers (NVOCCs) involved in arranging carriage of the cargo. A NVOCC 'is one who holds [itself] out to provide transportation for hire by water in interstate commerce ... who assumes or has liability for safe transport': Royal & Sun Alliance Ins PLC v Ocean World Lines Inc 612 F 3d 138, 140 n 2 (2d Cir 2010). Thus, 'NVOCCs operate as middlemen', as 'they arrange for relatively small shipments to be picked up from shippers, consolidate the smaller parcels, and ship them via a carrier or several carriers', but 'do not ... own or charter the ships that actually carry the cargo': Ins Co of N Am v S/S Am Argosy 732 F 2d 299, 301 (2d Cir 1984).

On 13 September 2018, the vessel was grounded near Ecuador. The cargo was not physically damaged in the incident. Rather, the plaintiffs sought to recover from Shipco and JAS (the NVOCC defendants) their share of the salvage expenses that they paid to the salvor who carried out the salvage operation to recover the cargo.

The plaintiffs sought relief from the NVOCC defendants on the basis of the vessel's unseaworthiness, bringing claims for common law indemnity on the basis of negligence and the NVOCC defendants' status as common carriers, and breach of general maritime law and the International Maritime Dangerous Goods Code (IMDG Code). The NVOCC defendants moved for summary judgment on the pleadings, and/or partial summary judgment limiting their liability to no more than USD 500, based on their contracts. The plaintiffs subsequently withdrew their IMDG Code claim and asserted a damages claim under the US Carriage of Goods by Sea Act, 46 USC § 30701 (COGSA).

Held: Summary judgment is granted to the NVOCC defendants. Fortuna is dismissed.

COGSA is inapplicable here where salvage damages, rather than any physical damage or loss, are at issue. See Hellenic Lines Ltd v Embassy of Pakistan 467 F 2d 1150, 1156 (2d Cir 1972): 'The provision "loss or damage" in [COGSA] refers to physical loss or damage to the goods'; Bubble Up Int'l Ltd v Transpacific Carriers Corp 458 F Supp 1100, 1104 n 4 (SD NY 1978): '[T]he COGSA statute of limitations does not apply to actions to recover salvage or General Average deposits; such actions are construed as actions for indemnity, not actions for loss or damage'); see also Nissho-Iwai Co v M/T Stolt Lion 617 F 2d 907, 912 (2d Cir 1980): 'Under COGSA, a shipper or consignee may establish a prima facie case against the "carrier," ... by showing that the cargo was delivered in good condition to the carrier but was in damaged condition when discharged'. Therefore, the plaintiffs' relief should 'be dealt with by contract between the parties': Hellenic Lines 1156. However, the plaintiffs have not pleaded a contract cause of action.

Additionally, even if COGSA applied here, the NVOCC defendants would not be liable for unseaworthiness. Seaworthiness is defined as 'the ability of a vessel adequately to perform the particular services required of her on the voyage she undertakes': GTS Indus SA v S/S 'Havtjeld' 68 F 3d 1531, 1535 (2d Cir 1995). While COGSA does require a carrier 'to exercise due diligence to ... [m]ake the ship seaworthy': 46 USC § 30705(a)(1), as NVOCCs, the NVOCC defendants did not control the vessel and thus did not have that duty: see Starr Indemnity & Liab Co v Transfair N Am Int'l Freight Servs No C17-697 RAJ, 2018 WL 4002541 *4 (WD Wash, 22 August 2018):

NVOCCs are non-vessel-operating intermediaries, and do not have physical control over specific vessels. NVOCCs, which do not operate vessels, are not likely to have the right or practical ability to inspect ships for seaworthiness or order repairs. It strikes this Court as unrealistic to hold NVOCCs to impossible duties.

See also Thyssen Steel Caribbean Inc v Palma Armadora SA, No 81-cv-6066 (RWS), 1983 WL 674 *6 (SD NY, 19 May 1983): '[Carrier who did not own the vessel] was entitled to rely on [the vessel owner's] warranty of seaworthiness contained in the charter' (citing Hasbro Indus v M/S St Constantine 698 F 2d 1008 (9th Cir 1983), aff'd sub nom Thyssen Steel v Palma Armadora SA 742 F2d 1441 (2d Cir 1984)).

Nor are the NVOCC defendants liable under common law maritime indemnity. The plaintiffs have failed to make the requisite showing that the NVOCC defendants are at fault for the grounding.

Finally, Fortuna has not sought dismissal and has not appeared in this action. Fortuna must be dismissed. The plaintiffs failed to serve Fortuna within the proper timeframe, and have acknowledged that Fortuna cannot be served.