Allianz Global Corporate & Specialty v. Texas Terminals LP et al

Filing 32

OPINION on Partial Summary Judgment. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, )

SOUTHERN DISTRICT -]-EXAS
OF

UNITED
STATESDISTRICT
COURT
Allianz Global Corporate b Specialty,
Plaintiff,

Civil Action H-i 2-2246

versus
Texas Terminals LP, et a!.,
Defendants.

Opinion on Partial Summary Judgment
I.

Introduction.

A stevedore says that its responsibility is limited by the bill of lading because it was working
for the ocean carrier when cargo was damaged. The consignee, through its insurer, says that the
stevedore was working for the consignee

2.

- beyond

the limitation. T h e insurer will prevail.

Background.
In 201 I, Rosemont Copper Company bought equipment f r o r n Switzerland Ltd. Itshipped
~ ~ ~

the equipment

- including

a control room

During the voyage, the ocean carrier

-

- from Rotterdam

to Houston on the MV D~Ifijln~rachr.

Spliethoff s Be~rachtin~skantoor BV - nominated Texas

Terminals to be the stevedore. O n the morning of December 19,2.011, a worker from Terminals
began unloading the cargo using the ship's crane. Without using the control room's center,of,gravity
markings, he moved it from the ship to a temporary trailer. Another worker from Terminals
connected the trailer to a truck and towed it from the dock to a staging yard. As he was disconnecting
the hitch, the trailer rocked, and the control room fell.

3.

Agent.
Texas Terminals says that because it was Spliethoff s agent when it unloaded the room, placed

it on the trailer, and drove it to the staging area, the bill of lading protects it. Allianz says that while
the bill of lading covered the time when cargo is unloaded but still in the custody of Spliethoff, the
control room was not in Spliethoffs custody when it fell. The bill's terms of carriage were "liner in

under hook and liner out under hook." W h e n Terminals put the room on the trailer, it was no longer
under the ship7shook, Spliethoff s obligations as a carrier had ended, and the bill of lading no longer
applied. At that point, the room had been delivered, and Terminals was acting for Rosemont.
Terminals says that "liner out under h o o k is simply a payment term that does not show for
whom it worked. It says that its invoices show that it billed Spliethoff for its work with the control
room, but it did not bill Rosemont or its agents for that work. It says that it received instructions from
Spliethoff only and that when its workers did not use the gravity markings, it was working for
Spliethoff.
Liner out and under hook is a shipping term; it determines the reciprocal responsibilities of
the parties. A different term would mean a different price, just as a different destination or weight
would. Once the goods are released on the dock from the ship, they are no longer under hook, the
carrier's duty to deliver them had been done, and it no longer is responsible for them. Spliethoff
nominated Terminals as stevedore, but Rosemont did not name its own agent.Just because it did not
name an agent does not mean it did not have one. Once the room was placed on the trailer, it had been
delivered, and it was no longer in Spliethoff s custody. From that point on, Terminals was acting as
Rosemont's de.facto agent; as with a bailment, Spliethoff delivered it to Terminals In trust for
Rosemont. Terminals billed Rosemont - through its agent, Agility Project Logistics, Inc. - for work
done "from under hook to place of rest." W h e n the control room fell off the trailer, Terminals was
acting for Rosemont.

4.

Conclusion.
WhenTexas Terminals unloaded the control room from the ship, it delivered the cargo. From

that point on, Texas Terminals worked for the benefit of Rosemont Copper Company, and the bill
of lading

- including

the Himalaya Clause - no longer applied. W h e n the control room fell off its

trailer, Texas Terminals was not covered by the Carriage of Goods by Sea Act. Its motion for partial
summary judgment will be denied.
Signed on March

1 , 2013, at Houston, Texas.
3

Lynn N. Hughes
United States DistrictJudge