Opinion
01 Civ. 3605 (PKL).
June 5, 2003.
Edward C. Radzik, Esq., Timothy Semenoro, Esq., Donovan Parry McDermott Radzik, New York, NY, Attorneys for Plaintiff.
James L. Ross, Esq., William J. Pallas, Esq., Freehill Hogan Mahar, LLP, New York, NY, Attorneys for Defendants.
OPINION AND ORDER
Plaintiff American Home Assurance Company ("American Home") brings this action as subrogee of Leslie Fay Company, Inc. ("Leslie Fay") against defendants Crowley Ambassador, her engines, boilers, etc., and Crowley American Transport, Inc. (collectively "Crowley"). On February 11, 2002, the Court granted partial summary judgment to defendants limiting damages in this action to $500 based upon the package limitation provisions of the Carriage of Goods by Sea Act ("COGSA").American Home Assurance Co. v. Crowley Ambassador, No. 01 Civ. 3605, 2003 WL 328301 (S.D.N.Y. Feb. 11, 2003). Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 6.3"), plaintiff now moves for reconsideration of that decision. For the following reasons, plaintiff's motion is denied.
The factual background of this case was set forth fully in the original decision disposing of the partial summary judgment motion and will not be repeated unnecessarily here.
DISCUSSION
Plaintiff bases its reconsideration motion on three grounds. First, it alleges that a material breach of contract precludes application of the COGSA limitation. Second, American Home argues that the Court overlooked ambiguity in the bill of lading. Finally, plaintiff contends that the course of dealing between the parties removes this case from the normal realm of package limitation cases. None of these arguments has any merit.
I. Motion for Reconsideration Standard
The standard for granting a motion for reconsideration is "strict," and such a motion will generally be denied "unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Indeed, the decision to grant or deny a motion for reconsideration or reargument is in the "`sound discretion of a district court judge and will not be overturned on appeal absent an abuse of discretion.'" Davidson v. Scully, 172 F. Supp.2d 458, 462 (S.D.N.Y. 2001) (Leisure, J.) (quoting McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)). Local Rule 6.3 "precludes a party from advancing new facts, issues or arguments not previously presented to the court." Bank Leumi Trust Co. of N.Y. v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y. 1995).
A party seeking reconsideration "is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings." Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 WL 98057, at *1 (S.D.N.Y. Jan 18, 2000). A motion for reconsideration "is not a substitute for appeal and may be granted only where the Court has overlooked matters or controlling decisions which might have materially influenced the earlier decision." Morales v. Quintiles Transnat'l Corp., 25 F. Supp.2d 369, 372 (S.D.N.Y. 1998) (internal quotations omitted). In determining whether a motion for reconsideration should be granted, Local Rule 6.3 "should be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001); see also Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (noting that a motion for reconsideration is not a vehicle for taking a second bite at the apple).
II. Alleged Material Breach of Contract
Plaintiff's first argument is that by failing to provide adequate security for the shipment, Crowley fundamentally breached the contract of carriage and therefore the COGSA package limitation is vitiated. American Home put forth this argument in its opposition to defendants' partial summary judgment motion and now argues that the Court misunderstood plaintiff to be arguing deviation. Plaintiff, however, misunderstands the scope of the deviation doctrine.
As made clear in the summary judgment decision, the doctrine of deviation does not apply to this case. American Home, 2003 WL 328301, at *5 (noting that the doctrine is strictly limited to geographic deviation and unauthorized on-deck stowage). Plaintiff does not now contest this point of law. American Home instead contends that the Second Circuit "recognizes that fundamental breaches of the contract preclude limitation under COGSA" and "deviation is merely an example of a material breach" that vitiates defendants' COGSA protection. Memorandum of Law in Support of Plaintiff s Motion for Reconsideration ("Pl. Memo.") at 5. For this proposition, plaintiff cites Pioneer Import Corp. v. The LAFCOMO, 159 F.2d 654 (2d Cir. 1947), andBerisford Metals Corp. v. S/S Salvador, 779 F.2d 841 (2d Cir. 1985). These cases lend superficial support to plaintiff's argument, however, that support disappears upon further analysis.
In Pioneer Import, the shipper and the carrier agreed that tarpaulins would cover the shipment. Pioneer Import, 159 F.2d at 654. The carrier, however, failed to comply with this agreement and, as a result, the shipment was rendered worthless.Id. The carrier attempted to rely on the limitation clause of the carriage contract. The Second Circuit, however, stated that "[b]y failing to cover the shipment with tarpaulins, [the carrier] deviated fundamentally from the agreed method of transportation. [It is] therefore deprived of the limitation clause." Id. Plaintiff uses this case to argue that a breach of the contract of carriage is different from deviation. Subsequent courts considering this case, however, have not interpreted it in the same manner as plaintiff does. Indeed, every relevant case that has discussed Pioneer Import has considered it an application of the deviation doctrine and not as a breach of contract case outside the scope of the deviation doctrine. See Agfa-Gevaert, Inc. v. S/S TFL Adams, 596 F. Supp. 338, 343 (S.D.N.Y. 1984) ("Breach of a contract for special stowage by improper stowage can constitute a deviation rendering contractual or statutory liability limitations inapplicable." (citing Pioneer Import) (emphasis added));United States v. Wessel, Duval Co., Inc., 115 F. Supp. 678, 684 (S.D.N.Y. 1953) ("The farthest that I have found courts going away from the original conception of a departure from the ship's route is their acceptance of a breach of contract for special stowage of cargo as a deviation." (citing Pioneer Import) (emphasis added)). It is clear, therefore, thatPioneer Import is a deviation case. Furthermore, as a deviation case, its precedential value is questionable. "To the extent that [Pioneer Import] stretched the concept of deviation to cover more than geographic deviation and stowage of cargo on-deck where only stowage below deck was authorized, it appears inconsistent with recent Second Circuit precedent." Norwich Union Fire Ins. Soc'y, Ltd. v. Lykes Bros. Steamship Co., Inc., 741 F. Supp. 1051, 1054 (S.D.N.Y. 1990) (citingSedco, Inc. v. S.S. S. Strathewe, 800 F.2d 27, 32 (2d Cir. 1986)) (internal footnote omitted).
Significant in this regard, since 1947 when it was decided, no Second Circuit case has cited Pioneer Import in a deviation case.
Berisford Metals offers plaintiff's argument even less support than Pioneer Import does. In Berisford Metals, "[t]he central question [was] whether a carrier that issues a clean on board bill of lading erroneously stating that certain goods have been received on board when they have not been so loaded should be precluded from limiting its liability pursuant to an agreement" wherein its liability was limited to COGSA's package limitation. Berisford Metals, 779 F.2d at 845. The Second Circuit answered the question in the affirmative, holding "simply that when a carrier misrepresents its own conduct in loading goods aboard ship it is responsible for the misrepresentation and may not invoke contract provisions incorporating COGSA's limitations on liability." Id. at 849;see also id. at 848 (stating that the case was "not based on the theft of the ingots or on [defendant's] negligence but on the carrier's false representation that it loaded the 70 bundles on its ship. Regardless whether some third party stole the ingots, the carrier here was obligated to state truthfully what it had loaded."); Dei Dogi Calzature S.P.A. v. Summa Trading Corp., 730 F. Supp. 567, 570 (S.D.N.Y. 1990) (stating that the basis for the Berisford Metals holding "was the carrier's issuance of an `on board' bill of lading, which represents that the carrier loaded on to the ship the cargo described in the bill of lading"). In the case at bar, American Home "does not assert that defendant[s] made any false representation in the bill of lading; plaintiff asserts only that defendant[s] did not fulfill [their contractual obligation] to provide special care" for the cargo. Norwich Union, 741 F. Supp. at 1054. Therefore,Berisford Metals is inapplicable to this matter.
Regardless of how plaintiff attempts to style the basis of its argument, it is fundamentally based on the doctrine of deviation. In Sedco, Inc., the Second Circuit considered a litigant's argument that "any carrier misconduct which amounts to a material breach of the contract of carriage constitutes a deviation, and makes the carrier liable for the full amount of the cargo owner's damages." Sedco, Inc., 800 F.2d at 32. The Court expressly rejected that contention. Id.; see also B.M.A. Indus., Ltd. v. Nigerian Star Line, Ltd., 786 F.2d 90, 92 (2d Cir. 1986) (stating that the Second Circuit "repeatedly has declined to extend the doctrine of deviation on the basis of culpability or crime"). Plaintiff's argument is therefore without merit.
III. Alleged Ambiguity in the Bill of Lading
Plaintiff's next argument relies on the oft-stated proposition that "bills of lading are contracts of adhesion ambiguities in which must be resolved against the carrier." See Mitsui Co., Ltd. v. American Export Lines, Inc., 636 F.2d 807, 822-23 (2d Cir. 1981) (Friendly, J.); see also Monica Textile Corp. v. S.S. Tana, 952 F.2d 636, 643 (2d Cir. 1991) (McLaughlin, J.). This statement is certainly a valid point of law, however, it has no bearing on this motion.
First, it appears that this is a new argument. While plaintiff did briefly address ambiguity in the bill of lading when contesting the original motion, its arguments were focused on the front of the bill of lading. Now, American Home is arguing that the definition of "package" on the back of the bill of lading is ambiguous. Plaintiff did not raise this argument before the Court decided the partial summary judgment motion. As such, it is improper to raise it for the first time in a motion for reconsideration. See Istim, Inc., 902 F. Supp. at 48. This technical reason alone is sufficient to reject plaintiff's argument.
Second, the substance of plaintiff s argument also fails. Resolving any alleged ambiguity against Crowley does not change the fact that, except for the container, the bill of lading "fails to describe objects that can reasonably be understood from the description as being packages." Binladen BSB Landscaping v. M.V. Nedlloyd Rotterdam, 759 F.2d 1006, 1015 (2d Cir. 1985). "The bill of lading otherwise gives `no indication whether or how the [pieces] were packaged.'" Alternative Glass Supplies v. M/V "Nomzi", No. 97 Civ. 4387, 1999 WL 2870, at *4 (S.D.N.Y. Jan. 4, 1999) (quoting Binladen, 759 F.2d at 1013); see also Aviles v. S.S. SAN JUAN, 1991 A.M.C. 2681 (S.D.N.Y. 1991) ("[T]he [shipper's] designation of the shipment as comprising 249 "pieces" — rather than "cases", "cartons", or "packages" — gave no indication of whether or how such pieces had been packaged." (citing Binladen, 759 F.2d at 1013)).
Not only does the bill of lading fail to disclose an alternate number of packages, the uncontroverted affidavit of Patricia Dennehy, submitted by plaintiffs, makes it clear that it is unknown exactly how many plastic-wrapped sets were in the container. See Affidavit of Patricia Dennehy, sworn to on May 1, 2002, ¶ 10 (stating that blouses, skirts and pants were packaged as sets). Plaintiff now states that it did not have sufficient discovery to establish that there were in fact 22,255 individually wrapped sets. See Pl. Memo. at 7. If that is the position in which plaintiff found itself, the proper response to defendants' motion for partial summary judgment should have been a Rule 56(f) affidavit. The Court did not resolve an issue of material fact against the non-moving party. On the record presented, there was no genuine issue of material fact.
IV. Plaintiff's Course of Dealing Argument
Plaintiff's final argument relates to the business relationship between the shipper and Crowley. American Home made this same argument in opposition to the original motion for partial summary judgment. Indeed, the Court squarely addressed plaintiff's contentions in this regard and, as such, will not do so again here. A motion for reconsideration is not an opportunity to press more strenuously the same arguments made in the original motion. Cf. Aquilio v. Police Benevolent Ass'n of New York State Troopers, Inc., No. 91 Civ. 325, 1994 WL 494639, at *4 (N.D.N.Y. Aug. 15, 1994) (rejecting arguments on reconsideration that amount to nothing more than a "disagreement between an understandably disappointed litigant and the Court").
CONCLUSION
Based on the foregoing, plaintiff's motion for reconsideration is denied. The parties are directed to appear for a pre-trial conference on June 23, 2003, at 11:00 A.M.