Five cargo insurers, including Indemnity Insurance Company of North America (IINA), brought an action against five common carriers, including Tianshi Logistics Co Ltd (Tianshi), under the Carriage of Goods by Sea Act (COGSA), 46 USC § 30701 n1, seeking damages arising out of an incident on 30 November 2020, when more than 1,800 shipping containers were lost overboard in the North Pacific from the MV ONE Apus. Two of those containers belonged to Parker House Manufacturing Co Inc (Parker House), IINA's insured. Suing as Parker House's subrogee, IINA sought to recover from Tianshi the USD 58,103.40 it paid to Parker House under its marine open cargo policy, plus Parker House's USD 2,500 deductible.

After Tianshi failed to appear, Paul A Engelmayer DJ granted IINA's motion for a default judgment against Tianshi and referred the matter for an inquest into IINA's damages.

Recommendation: IINA should be awarded USD 58,103.40.

Under COGSA § 4(5), '[n]either the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, ... unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading'. The Tianshi bill of lading states that '[u]nless the nature and value of the Cargo have been ... inserted in this Non-Negotiable Bill of Lading, ... the liability of the Carrier shall not exceed U.S. $500 per package or customary freight unit'. The bill does not specify the value of the cargo.

Although IINA pleaded four causes of action against Tianshi, it now seeks damages solely on its first cause of action, for damage to cargo under COGSA. A COGSA claim 'is a maritime action in the nature of a mixed tort, contract and bailment cause of action': Saray Dokum ve Madeni Aksam Sanayi Turizm AS v MTS Logistics Inc 2021 US Dist LEXIS 61291, 2021 WL 1199470 *9-10 (SDNY, 30 Mar 2021) (CMI1349); see also Polo Ralph Lauren LP v Tropical Shipping & Constr Co 215 F 3d 1217, 1220-21 (11th Cir 2000) (CMI1536), concluding that COGSA provides a 'hybrid' claim 'born of elements from contract and tort'.

'A plaintiff-consignee establishes a prima facie case for recovery under COGSA by demonstrating that the goods were damaged while in the defendant-carrier's custody': Bally Inc v MV Zim America 22 F 3d 65, 68 (2d Cir 1994). This burden can be met by demonstrating: (1) tender of the goods to the carrier in 'good order and condition'; and (2) non-delivery by the carrier or out turn of the goods at destination in damaged condition. When the plaintiff establishes a prima facie case, the burden shifts to the carrier to show that the loss or damage falls within one of the COGSA exceptions, or that it exercised due diligence to avoid the damage or loss. COGSA's framework thus places the risk of non-explanation for mysterious maritime damage squarely on the defendant carrier.

Here, because Tianshi defaulted, it cannot carry its burden as to any COGSA exception or defence. Consequently, the only remaining questions for this Court are whether IINA pleaded sufficient facts to establish a prima facie case under COGSA, and whether it has provided a sufficient evidentiary basis for the Court to determine its damages.

IINA's complaint adequately establishes a prima facie case under COGSA. It clearly alleges that Parker House tendered its shipment to Tianshi at Yantian, PRC, 'in good order and condition', but that the carrier failed to deliver that shipment 'in the same good order, condition, and quantity' - or at all - to Long Beach, California, US, because it was 'lost overboard'. Under the law of this Circuit, nothing more is required.