Atwood Oceanics, Inc. v. M/V "PAC ALTAIR," her engines, boilers, etc., in rem, ALTAIR MARITIME PTE LTD et al

Filing 80

ORDER granting in part, denying in part and mooting in part 29 Plaintiff's Motion for Partial Summary Judgment; and finding as moot 78 Defendants' Motion for Leave to File, all as set out in order. Signed by Judge Kristi K. DuBose on 6/13/2016. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ATWOOD OCEANICS, INC.,
Plaintiff,

)
)
)
v.
)
)
M/V PAC ALTAIR, her engines, boilers,
)
etc., in rem; and Altair Maritime Pte Ltd,
)
PACCShip UK Ltd, PACC Container
)
Line Pte Ltd, C.H. Robinson Project
)
Logistics, C.H. Robinson Worldwide, Inc., )
J.F. Moore International, Inc. and J.F. Moore)
International (M) SDN BDH, in personam, )
Defendants.
)

CIVIL ACTION: 15-00456-KD-C

ORDER
This matter is before the Court on Plaintiff’s Partial Motion for Summary Judgment
(Docs. 29, 35-37), certain Defendants1 Altair Maritime Pte Ltd., PACCShip UK Ltd and PACC
Container Line Pte Ltd.’s Response (Doc. 45, 47, 48), Plaintiff’s Reply (Doc. 50, 51) and
Defendants’ Sur-Reply (Doc. 55); and Defendants’ motion for leave to submit additional
evidence (Doc. 78).
I.

Background2
On September 17, 2015, Plaintiff Atwood Oceanics, Inc. (Plaintiff) initiated this maritime

action3 against M/V PAC ALTAIR (her engines, boilers, etc. in rem) and Altair Maritime Pte

1 This summary judgment does not concern the remaining defendants., C.H. Robinson Project Logistics,
C.H. Robinson Worldwide, Inc., J.F. Moore International, Inc. and/or J.F. Moore International (M) SDN BDH.
2 At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton
v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–999 (11th Cir. 1992). The “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208
F.3d 919, 925 n. 3 (11th Cir. 2000).
3 Plaintiff asserts admiralty and maritime jurisdiction under Rule 9(h) of the Federal Rules of Civil

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Ltd., PACCShip UK Ltd and PACC Container Line Pte Ltd., C.H. Robinson Project Logistics,
C.H. Robinson Worldwide, Inc., J.F. Moore Intl., Inc. and J.F. Moore International (M) SDN
BDH (in personam).

(Doc. 1). Plaintiff is an offshore drilling company which purchased 85

marine drilling riser joints and one (1) “crate seals accessories” (the cargo) pursuant to an
October 8, 2014 Bill of Lading No. PCLW325XPKM001 (BOL).4

(Id.)

itself as the owner, shipper and consignor to the cargo (as its purchaser).

Plaintiff identifies

(Id.)

The cargo was damaged en route from Port Klang, Malaysia to Mobile, Alabama while
aboard the M/V PAC ALTAIR (the vessel) as “on-deck” cargo when a rogue wave hit the
vessel.5 One (1) riser was lost overboard and at least three (3) other risers suffered external
physical damage.

As a result, Plaintiff sued the Altair and PACC entities as the Carriers,

owners and operators of the vessel owing duties and responsibilities for the cargo under COGSA,
46 U.S.C. § 30701 et seq.; the C.H. Robinson entities as freight forwarders who made all of the
transportation arrangements for the shipment; and the J.F. Moore entities who were hired to
inspect and observe how the cargo was loaded/stowed aboard the vessel and to certify its
suitability for the voyage.

(Doc. 1 at 2).

Plaintiff alleges six (6) claims against these

defendants for breach of contract for common carriage, negligence, gross negligence, fraudulent

Procedure, as well as diversity jurisdiction per 28 U.S.C. §1332. (Doc. 1 at 2 at ¶¶2,4). However, complete
diversity appears lacking in this case as Plaintiff and Defendants C.H. Robinson Project Logistics, and J.F. Moore
International, Inc. are both corporate citizens of Texas with their respective principal places of business in Houston,
Texas. (Id. at 2-4). Thus, Plaintiff has not established complete diversity of citizenship to predicate its claim on
same in this Court. As a result, any/all remedies lie in admiralty.
4 Plaintiff referenced a different Bill of Lading in the Complaint -- PCLW325XPLM001. The Court
presumes this was simply a typographical error as Plaintiff’s subsequent references to the relevant BOL match those
referenced by defendants, and match the actual number on the BOL submitted to the Court.
5 The vessel was loaded on October 8, 2014 in Malaysia with the riser units destined for a facility in
Mobile, Alabama. (Doc. 29-7). On October 14, 2014, en route to its first stop at Padang, Sumatra, Indonesia, the
vessel was reportedly struck by a rogue wave causing one (1) riser to be lost overboard and other risers to be
damaged. (Id.) See also (Doc. 29-10 at 1, 4).

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misrepresentation, negligent misrepresentation and breach of express/implied warranty.

(Id.)

Plaintiff’s partial summary judgment motion concerns only Plaintiff and the Carrier
defendants and a dispute over one (1) document – Bill of Lading #PCLW325XPKM001.
29-5 at 2; Doc. 29-6 at 2).

The BOL was issued by the Paccship defendants.

(Doc.

(Doc. 29-1 at 7).

The Merchant on the BOL is defined in Section 1, as the shipper, receiver, consignor, consignee,
holder of the BOL, owners of the cargo and any person entitled to possession of the cargo.
(Doc. 29-6 at 2 at ¶1).

The relevant BOL details are as follows.6

First, the face of the BOL provides that the “85 pieces joint risers and 1 crate seals
accessories” (cargo) are “shipped on deck at shippers risk & expense.”

(Doc. 29-5 at 2

(emphasis added)). The face of the BOL states that the cargo is:
SHIPPED on board in apparent good order and condition (unless otherwise stated herein)
the total number of Containers/ Packages or Units indicated in the Box…and the cargo
…value unknown, for carriage to the Port of discharge…to be delivered in the like good
order and condition at the Port of Discharge unto the lawful holder of the Bill of
Lading….In accepting this Bill of Lading the “Merchant” expressly accepts and agrees to
all its stipulations on both Page 1 and Page 2, whether written, printed stamped or
otherwise incorporated, as fully as if…all signed by the Merchant.
(Id.)

The “Shipper’s declared value” was left blank.

(Doc. 29-5 at 1).

Second, the liability of the Carrier for carriage between port of loading and port of
discharge is specified in Section 3(a): “the Carrier shall in no case be responsible for loss of or
damage to cargo…with respect to deck cargo[.]” (Doc. 29-6 at 2 at ¶3(a) (emphasis added).
“The aggregate liability of the Carrier…under this Contract shall in no circumstances exceed the

6 The BOL provides that disputes arising out of or in connection to the BOL shall be exclusively
determined by the courts and law of the Carrier’s principal place of business. (Doc. 29-6 at 2 at ¶4). Plaintiff has
identified the Carrier as the Altair and PACC defendants. The principal place of business of the Carrier Altair and
PACCship are London, United Kingdom; and Great World City, Singapore for Carrier PACC Container. (Doc. 1
at 3 at ¶¶7-8). The parties have waived this forum selection/venue aspect of this clause in the BOL as well as any
previously raised defenses with regard to whether venue/forum is proper in this Court. (Docs. 1, 60, 72, 73).

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limits of liability for the total loss of the cargo under sub-clause 3(a) or if applicable the
Additional Clause.” (Id. at 2 at ¶3(c)).
Third, the Additional Clause provides: “[i]n case the Contract evidenced by this Bill of
Lading is subject to” COGSA, COGSA “shall govern before loading and after discharge and
throughout the entire time the cargo is in the Carrier’s custody[.]” (Id. at 2 at Additional
Clause(i)).

And “[i]f COGSA applies, and unless the nature and value of the cargo has been

declared by the shipper before the cargo has been handed over to the Carrier and inserted in this
Bill of Lading, the Carrier shall in no event be or become liable for any loss or damage to the
cargo in an amount exceeding USD 500 per package….” (Id. at Additional Clause (ii)).7
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a).

Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
7 The BOL provides “the Hague Rules…as amended by…the Hague-Visby rules…and as enacted in the
country of shipment shall apply to this Contract. When the Hague-Visby Rules are not enacted in the country of
shipment, the corresponding legislation of the country of destination shall apply[.]” (Doc. 29-6 2 at ¶3(a)). The
country of shipment, Malaysia, has enacted the Hague Rules but it does not appear they have enacted the
Hague-Visby Rules (Malaysia's Carriage of Goods by Sea Ordinance 1950 (Revised 1994)). Thus, per the BOL,
the “corresponding legislation” of the destination country “shall apply.” The destination country is the United
States, and its corresponding legislation is COGSA (enacted to codify the Hague Rules).

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that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.

FED.R.CIV.P. Rule 56(c).

The party seeking summary judgment bears the “initial responsibility

of informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).

If the nonmovant fails to make “a sufficient showing on an

essential element of her case with respect to which she has the burden of proof,” the movant is
entitled to summary judgment.

Celotex, 477 U.S. at 323. In assessing whether the nonmovant

has met its burden, “the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter….Instead, ‘[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.’” Tipton v. Bergrohr
GMBH-Siegen, 965 F.2d 999 (11th Cir. 1992).
III.

Discussion

A.

COGSA
Plaintiff seeks partial summary judgment on COGSA’s applicability to the on-deck

cargo, and thus the applicability of COGSA’s $500/per package damages limitation to said
cargo, per the BOL – arguing that there is no such limitation in the BOL such that the Carrier
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must pay for all of the damaged/lost cargo.
Specifically, Plaintiff contends that the Carrier (the Alltair and PACC entities) are not
entitled to assert the $500/package limitation of liability because Plaintiff’s cargo was “on-deck”
cargo to which COGSA does not apply.

Plaintiff explains that for COGSA’s $500/package

limitation to apply, the BOL would have had to contain language expressly extending the benefit
of that limitation to on-deck cargo, and it did not.

From this, Plaintiff argues that the

availability of the COGSA limit is a matter of contractual interpretation which can be resolved as
a matter of law per the terms/clauses of the BOL.
In contrast, the Carrier defendants dispute Plaintiff’s claim, and assert that COGSA’s
$500/package limitation applies to the on-deck cargo, as no higher declarations/valuations were
declared by the shipper such that their liability, if any, is limited to same.

(Doc. 19 at 4 at ¶7).

The Carrier defendants assert also, that the on-deck storage of the cargo was done with the
knowledge/approval of the shipper (Plaintiff) with full acceptance of any/all risk of damage and
loss such that they are not liable or responsible for same.

(Id. at 5 at ¶15). The Carrier

defendants state further, if the Court does not agree, then the BOL is ambiguous and issues of
fact preclude summary judgment.
At the outset, the parties do not dispute that the cargo was shipped “on deck” and that the
BOL states such.

The issue is whether COGSA applies to the on-deck cargo.

The United States Carriage of Goods by Sea Act (COGSA) compulsorily applies to and
governs every bill of lading that evidences a contract for the carriage of “goods” by sea in
foreign commerce to or from ports in the United States.

46 U.S.C. § 30701 et seq. (COGSA).

See, e.g., Itel Container Corp. v. M/V Titan Scan, 139 F.3d 1450, 1452-1453 (11th Cir. 1998);
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Realini v. Contship Containerlines, Ltd., 143 F.Supp.2d 1337, 1339 (S.D. Fla. 1999); Unimac
Co., Inc. v. C.F. Ocean Service, Inc., 1993 WL 766955, *2 (N.D. Fla. 1993).

COGSA defines

goods and provides that “[t]he term ‘goods' includes goods, wares, merchandise and articles of
every kind whatsoever, except…cargo which by the contract of carriage is stated as being
carried on deck and is so carried.” COGSA § 1(c) (emphasis added); Realini, 143 F.Supp.2d
at 1339; Sideridraulic Sys. SpA v. Briese Schiffahrts GmbH & Co. KG, 2011 WL 3204521, *3
(S.D. Ala. Jul. 26, 2011).

As such COGSA does not apply – by its terms -- to cargo carried on

the deck of a vessel when the bill of lading states that the cargo will be carried on deck.

See,

e.g., Institute of London Underwriters v. Sea–Land Serv., Inc., 881 F.2d 761, 764 (9th Cir. 1989);
General Motors Corp. v. Moore–McCormack Lines, Inc., 451 F.2d 24, 25 n. 1 (2nd Cir. 1971);
Realini, 143 F.Supp.2d at 1339; Sail America Fdtn. v. M/V T.S. Prosperity, 778 F.Supp. 1282
(S.D.N.Y. 1991); Z.K. Marine, Inc. v. M/V Archigetis, 776 F.Supp. 1549 (S.D. Fla. 1991); Saint
Paul Fire & Marine Ins. Co. v. Sea–Land Serv., Inc., 745 F.Supp. 186, 188 (S.D.N.Y. 1990);
Miller Yacht Sales, Inc. v. M/V Vishva Shobha, 494 F.Supp. 1005, 1014 (S.D.N.Y. 1980).
Here, the BOL provides that the cargo will be shipped on-deck at Shipper (Plaintiff’s)
risk.

The BOL also provides that the Merchant (Plaintiff) expressly agrees and accepts this

manner of carriage.

Thus, the on-deck cargo is not automatically subject to COGSA.

Realini,

143 F.Supp.2d at 1339 (citing Inst. of London Underwriters, 881 F.2d at 764 (“[i]t is beyond
dispute that COGSA itself does not apply to the on-deck shipment of the yacht[]”), General
Motors, 451 F.2d at 25 n. 1 (COGSA did not apply by its own terms to generators carried on
deck), Z.K. Marine, 776 F.Supp. at 1553 (“COGSA...does not directly apply…because the
yachts were carried on deck[]”), clarified on denial of reconsideration, 808 F.Supp. 1561 (S.D.
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Fla. 1992) and Sail Am., 778 F.Supp. at 1285).
Nevertheless, while COGSA does not by definition apply to on-deck cargo, parties may
contractually extend COGSA to on-deck cargo by executing a bill of lading which “makes
COGSA applicable at times when it would not apply of its own force.” Realini, 143 F.Supp.2d
at 1340 (citing Insurance Co. of N. Am. v. M/V Ocean Lynx, 901 F.2d 934, 939 (11th Cir. 1990)
and Brown and Root, Inc. v. M/V Peisander, 648 F.2d 415, 419-420 (5th Cir. 1981)); Armco
Chile Prodein, S.A. v. M/V Norlandia, 880 F.Supp. 781, 789 (M.D. Fla. 1995) (“COGSA... does
not apply of its own force to a contract for on-deck shipment....However, a contract of carriage
may incorporate and apply COGSA to on-deck shipments[]”) (citations omitted).

Put simply,

the parties can decide to expressly extend COGSA to on-deck cargo as a contractual term in a
bill of lading, and this choice will be enforced.

Sail Am., 778 F.Supp. at 1286 (“COGSA

applies to the parties' agreement because the parties to the…bills of lading expressly
incorporated the statute's provisions in the contract[]”).
However, the extension of COGSA to on-deck cargo must be expressly stated in a bill of
lading because COGSA does not apply ex prorio vigore.

As explained in Z.K. Marine, 808

F.Supp. at 1563-1564:
It is undisputed that COGSA does not apply ex proprio vigore…because the definition of
“goods”….does not include carriage of “on-deck” cargo.[ ] Nonetheless, it is well
established that COGSA can be extended to contracts to which it does not apply of its
own force if the parties so agree…
The contract (bill of lading) must employ “sufficiently express language” that the
on-deck cargo is subject to COGSA. Saudi Pearl Ins. Co. Ltd. v. M/V Aditya Khanti, 1997 WL
291834, *3 (S.D.N.Y. Jun. 2, 1997) (citing SNC S.L.B. v. M/V Newark Bay, 111 F.3d 243, 245
(2nd Cir. 1997) (COGSA applied to on-deck shipment under clause paramount in bill of lading
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stating that COGSA “shall apply to goods whether carried on or under deck”); Sail Am., 778
F.Supp. at 1286 (finding COGSA applicable to cargo stowed on deck pursuant to clause
specifically providing that deck cargo “shall be governed by [COGSA]”); St. Paul Fire & Marine
Ins. Co. v. Sea–Land Serv., Inc., 745 F.Supp. 186, 188, 189 (S.D.N.Y. 1990) (same)).

See also

e.g., Realini, 143 F.Supp.2d at 1340 (“[d]espite the fact that COGSA does not apply by its own
terms, a bill of lading may include a paramount clause which “makes COGSA applicable at
times when it would not apply of its own force[,]” citing M/V Ocean Lynx, 901 F.2d at 939 and
Brown and Root, 648 F.2d at 419-420; Inst. of London Underwriters, 881 F.2d at 764 (“this bill
of lading shall have effect subject to all the provisions of the Carriage of Goods by Sea Act of
the United States of America....The defenses and limitations of said Act shall apply to goods
whether carried on or under deck[]”); M/V Newark Bay, 111 F.3d at 245 n.5 (the bill of lading
contained a “clause paramount” incorporating by reference COGSA – “[b]ecause COGSA
applies only to goods stowed between decks or in the hold…the bill of lading also included a
separate clause applying COGSA specifically to goods carried above deck[]”); Pannell v. the
American Flyer, 157 F.Supp. 422, 424 (S.D.N.Y. 1957) (the bill of lading provided an explicit
incorporation of COGSA to on-deck cargo -- “in respect of goods carried on deck...the carrier
shall have the benefit of….Carriage of Goods by Sea Act[]”). Cf. Columbia Machine, Inc. v.
DFDS Transp. (US), Inc., 2007 WL 5173280, *3, 5, 7-8 (C.D. Cal. Oct. 4, 2007) (while the bill
of lading contained a Clause Paramount that incorporated COGSA's terms generally without
reference to on-deck cargo and contained a shipper’s risk notation on its face for on-deck cargo,
the bill of lading included a specific clause for on-deck cargo being subject to the Hague Rules
thus rendering COGSA inapplicable to the on-deck cargo -- “All such Goods, whether carried on
9

deck or under deck...shall be deemed to be within the definition of goods for the purposes of the
Hague Rules and shall be carried subject to those Rules[]”); Saudi Pearl, 1997 WL 291834, *3
(the bill of lading’s clause paramount did not refer to cargo, even though it incorporated
COGSA).
Upon review, neither the BOL nor the Clause Paramount within the BOL expressly state
that COGSA applies to on-deck cargo or that COGSA is being extended by agreement of the
parties specifically to on-deck cargo.

Thus, COGSA’s $500/package limitation does not apply.

Indeed, the Bill of Lading does not evince – by “sufficiently express language” or otherwise – an
agreement to apply COGSA to the on-deck cargo, especially when compared to language in bills
of lading which have been found to have expressly incorporated such as in M/V Newark Bay,
111 F.3d at 245, Sail Am., 778 F.Supp. at 1286, Sea–Land Serv., Inc., 745 F.Supp. at 188-189,
Inst. of London Underwriters, 881 F.2d at 764 and Pannell, 157 F.Supp. at 424.
Additionally, the Shipper’s Risk clause on the face of the BOL is insufficient to equate
with an express incorporation of COGSA to on-deck cargo and the $500/package limitation.
Saudi Pearl, 1997 WL 291834, *3 (requiring instead “sufficiently express language”); Columbia
Machine, 2007 WL 5173280, *9 (“the ‘shipper's risk’ notation is ambiguous and…could be
interpreted to mean that…[the party]…would not be liable for damage not caused by its own
negligence[]”).

And while the Carrier defendants rely heavily on Deltamax Freight Sys. v. M/V

ARISTOTELIS, 1998 WL 1110395, *4 (C.D. Cal. Dec. 7, 1998) to assert otherwise, the Court
does not find the holding in Deltamax persuasive.
Further, the Clause Paramount in the BOL -- at most -- sets forth the applicability of
COGSA to “the cargo” without identifying what type of cargo, whether on-deck, below deck, or
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otherwise stored/shipped.

In otherwords, rather than evincing an expressly agreed upon

application of COGSA to on-deck cargo, the Clause Paramount is wholly silent as to COGSA’s
applicability to on-deck cargo (and thus as to COGSA’s $500/package limitation).

To the

extent that this silence could be construed as ambiguity in the BOL, any such ambiguity is
construed against the drafter – the Carrier defendants.

Royal Ins. Co. of Am. v. Orient

Overseas Container Line Ltd., 525 F.3d 409, 423 (6th Cir. 2008) ("ambiguities in contracts
should be construed against the drafter[]"); Marisa v. M/V CMA CGM LA TOUR, 2006 WL
2521269, *3 (S.D.N.Y. Aug. 29, 2006) ("it is well-established that ambiguities should be
resolved against the carrier who drafted the agreement[]"); MacClenny Products, Inc. v. Tropical
Shipping & Const. Co., Ltd., 832 So.2d 888, 890 (Fla. 4th DCA 2002) ("[a]ny ambiguities in the
bill of lading are construed against the carrier[]"); Inst. of London Underwriters, 881 F.2d at 767
("any ambiguity in the [BOL] must be construed in favor of the shipper and against the carrier");
Transatlantic Marine Claims Agency, Inc. v. M/V OOCL INSPIRATION, 137 F.3d 94, 104 (2nd
Cir. 1998) (finding a bill of lading unambiguous, yet specifically stated that "we in no way wish
to undercut the principle that the drafter of a bill of lading…should be held accountable for the
consequences of poor drafting[]"); Navieros Oceanikos. S.A., Liberian Vessel Trade Daring v. S.
T Mobil Trader, 554 F.2d 43 (2d Cir. 1977) (“[t]he traditional rule of construction, applied in
admiralty cases, is to construe contract language…most strongly against its drafter….where the
contract language is ambiguous where it is susceptible of two reasonable and practical
interpretations[]”).

See also M/V Vishva Shobha, 530 F.2d at 718 (ambiguity in bill of lading

should properly be resolved against the party who prepared the instrument); M/V Sea Land
Express, 792 F.2d at 471 (ambiguities in bill of lading are to be resolved against drafter); Agrico
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Chemical Co. v. SS Atlantic Forest, 459 F.Supp. 638, 646 (E.D. La 1978) (courts must strictly
construe clauses purporting to limit liability of ocean carrier).
Thus, Plaintiff’s partial motion for summary judgment is GRANTED in part on the
issue of the inapplicability of COGSA and its $500/package limitation to the BOL.
B.

The Harter Act, Liability, and Premature Nature of the Summary Judgment
The Plaintiff also raises arguments regarding overall liability issues in this case and the

applicability of the Harter Act.

The Court finds that an assessment of the applicability of the

Harter Act and defendants’ liability is premature, and thus, that portion of Plaintiff’s motion is
DENIED at this time.

As to the premature nature of Plaintiff’s motion (incorporating a Rule 56

argument), in light of the findings herein, this argument is MOOT as to the singular issue
involved on summary judgment -- the applicability of COGSA and its $500/package limitation to
on-deck cargo.

Likewise, this determination MOOTS Defendants’ June 7, 2016 motion to

supplement its response to summary judgment (Doc. 78).
IV.

Conclusion
Accordingly, it is ORDERED that Plaintiff’s Partial Motion for Summary Judgment

(Docs. 29, 35-37) is GRANTED in part, DENIED in part and MOOT in part, as detailed
herein.
DONE and ORDERED this 13th day of June 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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