Opinion
00-2240-CIV-UNGARO-BENAGES/BROWN
January 8, 2003
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was tried to the Court in a three day bench trial. In conformity with Rule 52(a) of the Federal Rules of Civil Procedure, the following constitutes the Court's Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. Parbel, Inc. ("Parbel") is a Florida company that imports L'Oreal products from France and exports them to duty free markets in the Caribbean, Central and South America. Parbel has been engaged in this business for more than twenty years.
2. Brasif Duty Free Shop, Ltd. ("Brasif") owns and operates duty free stores at various Brazilian airports including Sao Paulo and Rio de Janeiro. Parbel ships approximately sixty container loads of perfumery products to Brasif each year.
3. DAMPSKLBSSELSKABET AF 1912, AKTIESELSKAB and AKTIESELSKABET DAMPSKLBSSELSKABET SVENDBORG, jointly doing business as MAERSK LINE, is a common carrier of merchandise by water for hire. MAERSK LINE provides a world-wide service to shippers of cargo. Parbel selected MAERSK LINE to transport its shipments from Miami to Brazil due to the quality of its security at the Port of Miami and the overall quality of its service. Parbel shipped more than sixty containers per year with MAERSK for several years before the subject shipment without incident or complaint.
4. Cia de Docas do Estado de Sao Paulo ("the Dock Company of the State of Sao Paulo"), also known as Docas or CODESP is a governmental entity that controls the Port of Santos.
5. Libra Terminals, S/A ("Libra") has a concession from CODESP to provide stevedoring and terminal services at the Port of Santos. Libra contracts with both ocean carriers (principals) and shippers/consignees (importers) to provide services at the Port of Santos. With respect to cargo imported into Brazil, Libra discharges vessels for ocean carriers and receives, weighs, and stores containers for importers. Libra stands in the shoes of CODESP and is responsible for the cargo under Customs control from the time it is discharged until it is delivered to the consignee. (Lopes and Exhibit 80).
6. MAERSK LINE selected Libra to discharge the vessel.
7. Brasif, who purportedly found sand in the container when it broke the high security seals and opened the container in Sao Paulo, had other losses where sand had been substituted for cargo in connection with air shipments. Parbel insured that the cargo was placed into the pallets or loose cartons (shipping units) and that the shipping units were loaded and sealed in the container. Parbel photographed the empty, half-loaded, fully loaded, and sealed container. Parbel hired a professional inspector and surveyor, Donald J. Mahoney Co., to verify that the shipping units were loaded and sealed in the container. Parbel closely monitored the time taken by its trucker, Caribbean Transportation, to transport the sealed container from its warehouse to the Port of Miami. Parbel required MAERSK LINE to place the sealed container into a high security area at the port and to constantly monitor the container until loaded aboard the vessel. Brasif's insurer required a professional inspector and surveyor, Incotec, to observe the discharge of containers at the Port of Santos, to inspect the containers immediately upon discharge; and to monitor the containers while in the staging area adjacent to the vessel, clearing the staging area, being weighed, and entering the storage Terminal 36 at the Port of Santos. A private security company, General Protection, was retained to escort the container during transport from the Port of Santos to Brasif's warehouse by Brasif's trucker, Estrada Transport (Estrada). Finally, Parbel required a professional inspector and surveyor, Serra Nascimiento, to attend the breaking of the seals and opening of the container. (Harano, Ronderas).
8. Parbel also arranged for warehouse-to-warehouse cargo insurance coverage with American Home and Assurance Company to protect it against any loss or damage to its perfumery products from the time they left its warehouse until they arrived at Brasif's warehouse.
9. In September, 1999, Brasif ordered certain perfumery products from Parbel for delivery to Brasif's duty free store at the Sao Paulo Airport.
10. The items set forth in Parbel's invoices to Eurotrade, Ltd. were prepared for shipment at Parbel's Miami Free Zone warehouse. The perfumery products consisted of, inter alia, creams, sprays, shampoo, lipstick, nail polish, gloss, testers, and various perfumes. The largest item contained no more than 200 milliliters. The cartons were consolidated and palletized to prepare them for transportation and facilitate their handling. The subject shipment consisted of thirty two pallets and eighteen loose cartons.
11. The shipment was fully assembled and ready to be loaded into the container by 8:52 a.m. on September 13, 1999, which was eleven days before they were actually loaded into the container.
12. To transport the Container to Maersk Line, Parbel selected Caribbean Transportation. When the driver picked up the loaded Container, he prepared and signed Caribbean Transportation Bill of Lading No. 945788, noting three seal numbers which he had checked. Parbel gave the driver a Tally Out for 2,316 cartons to present to the Free Zone Administrator at the time of exit. The trucker's straight bill of lading confirms that the Container left Parbel at 2:30 p.m. on September 24, 1999. Upon departure Parbel notified Maersk Line.
13. Parbel loaded the container under the supervision of Donald J. Mahoney Co.'s surveyor, Leonard Bethards, on the morning of September 24, 1999. The container loading operation was completed and the container doors were closed and sealed with three high security seals at 11:15 a.m.
14. Except for necessary stops to exit the Miami Free Zone and to enter the Port of Miami, Caribbean Transportation's driver traveled directly from Parbel's warehouse to Maersk Line's facility. When the Container arrived at the Port of Miami, Miami-Dade County Seaport Department Gate Pass S574901 was issued at 3:17 p.m. During the trip Caribbean Transportation's driver saw no one tamper with the Container.
15. Parbel issued a bill of lading for Caribbean's Transport's movement of the container from Parbel's warehouse to the Port of Miami.
16. The container, its chassis, and the Caribbean Transport truck were weighed at the Port of Miami scale at the entrance to the Port at 3:17 p.m. The truck driver delivered the container to MAERSK LINE's terminal operator at the Port of Miami, Universal Maritime Services, less than half a mile away, fifty minutes later, at 4:07 p.m. The truck driver testified that it was common to encounter traffic and checking (inspection) delays at the Port.
17. The container was placed into a Universal Maritime Services high security area 308 where a pin was installed to prevent movement of the container and the container was inspected every one to one and one half hours. There is no evidence that anything happened to the container, its seals, or its contacts while in the Universal yard.
18. Universal Maritime Services security personnel removed the pin lock from the container and escorted the container from the high security area to the M/V "CCNI AYSEN" (the vessel) at 21:30 on September 26, 1999. The container arrived alongside the vessel at 21:34 and was loaded aboard the vessel at 21:43. The security guard documented this activity and then left the vessel.
19. The container was loaded in bay 12A, row 5, in the second tier on the deck of the vessel. In this position, the container was approximately eight to sixteen feet above the vessel's deck. This position was identified as slot number 120584. The container was surrounded by other containers to be carried to the Port of Santos, Brazil. The container and the surrounding containers remained in this position until discharged at the Port of Santos, as the vessel sailed directly from the Port of Miami to the Port of Santos. There is no evidence that anything happened to the container, its seals, or its contents while aboard the vessel.
20. Parbel furnished to MAERSK LINE information to be placed on the MAERSK LINE bill of lading. MAERSK LINE issued the bill of lading. The bill of lading described the cargo as follows:
Carrier's Receipt Particulars Furnished by Shipper — Carrier Not Responsible
Container No./Seal No. of Containers Kind of packages; Gross No. Marks and or Pkgs. description of Weight Numbers
0044745 1 CY/CY 25847 LBS 0044746 FREIGHT PREPAID 11724 KGS NL 86786 MKV 40' CTNR SAID TO MAEU7208729 CONTAIN 32 PARBEL0044746 PALLETS 2299 CARTONS + 18 CARTONS LOOSE + 6 WOODEN CRATES N/Y MDSE + 2 CARTONS N/L S.T.C. PERFUMERY PRODUCTS
Accordingly, Parbel claimed that the cargo weighed 25,847 pounds, or 11,724 kilograms. MAERSK LINE did not separately weigh the container or the cargo but instead relied upon Parbel's description of the cargo in issuing the bill of lading.
21. Paragraph 12, Description of Goods of the MAERSK LINE bill of lading provided:
No representation is made by the carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers, or value of the goods and the carrier shall be under no responsibility whatsoever in respect to such description or particulars.
22. The vessel arrived at the Port of Santos, at 11:53 on October 11, 1999. Libra discharged cargo from the vessel from 13:00 to 19:00. The container was discharged at approximately 16:40. The Container Discharge List contains no exceptions regarding the condition of the container or its seals other than the rust, dents, and scratches that were observed when the container was loaded by Parbel. Significantly, the professional inspector (checker) who prepared the report made the same observations for all twenty (20) of the containers on the report. (Lopes, Exhibit 76).
23. Two or three days before the ship arrived in Santos, Brasif sent a copy of the bill of lading to Incotec, professional inspectors and surveyors at the Port of Santos, so that Incotec could arrange for an inspector to be on the dock one hour before the vessel arrived and to witness the discharge of the container. Thereafter, the inspector fully examined the container including, all of "the seals, left door, right door, top [and] bottom" and confirmed that there had been "no access . . . to the merchandise inside the container." After verifying the external condition of the container and its seals, the Incotec inspector observed the container taken into the terminal and weighed whereupon he again checked the external condition of the container and its seals. If the Incotec inspector had observed any discrepancy in terms of the container's exterior condition, its seals, or its weight, then the container would have been blocked by Incotec and would not have been allowed to leave the Port. Incotec also would have arranged for the container to be opened by Incotec's representatives in the presence of a Federal Revenue Official. (Mores and Exhibits 93 and 97).
24. Incotec inspected the container a second time when it was released by Libra to the trucker. Again, if there had been any discrepancies regarding the condition of the container, its seals or weight, the container would have been held for an inspection. (Mores, Harano, Zorzeto, DaSilva; Exhibit 97).
25. The Incotec reports regarding the discharge of the container and admission into the Libra terminal and the release from the Libra terminal to the trucker establish that there was nothing wrong with the container, its seals, or its weight other than normal wear and tear. Incotec, therefore, cleared the container for both admission into the Libra terminal for storage after discharge from the vessel and for release from the Libra terminal to Brasif's trucker, Estrada, for transport to Brasif in Sao Paulo. (Mores and Exhibits 93 and 97).
26. The container remained at Terminal 37 from the time of discharge until 20:55, approximately four hours, when it was reinspected for clearance to the container storage Terminal 36. The container and its seals were again found to be in good order and condition, except for the same normal rust, dents, and scratches. Significantly, the inspector did not find that the contents of the container were suspected to be short or damaged. The container was formally clocked out of Terminal 37 at 21:24. (Lopes; Exhibits 77, 97). Terminal 35 issued a form Container Average Report based on this inspection that noted the rust, dents, and scratches on the container without any signs of tampering or suspected shortages or substitution of the contents of the container. (Lopes; Exhibit 99).
27. The container was admitted to Terminal 36 at 21:42. The container was also weighed at this time. The inspection of the container and its seals did not contain any exceptions other than the rust, dents, and scratches previously observed by other inspectors. Although this inspector noted possible damage to the contents of the container as a result of the rust, dents, and scratches, the inspector did not suspect any pilferage in the container as he specifically answered the question, "fault suspected?" with a "NO." (Lopes; Exhibits 78 and 79).
28. The container remained in the custody of Libra at Terminal 36 until October 13, 1999 at 11:12 a.m. when the container was removed from Terminal 36 and placed aboard the Estrada truck. The container was inspected by the truck driver, an Estrada container inspector, an Incotec inspector and a Customs inspector. They did not find any exceptions to the container and/or its seals other than normal wear and tear relating to the rust, dents, and scratches. In fact, Estrada acknowledged that the container was in perfect condition. (Exhibit 106). A Customs and an Incotec seal were also placed on the container. (Lopes, Harano, Barbosa, DaSilva; Exhibits 95, 97, and 98).
29. The container remained in the care, custody, and control of Estrada from 11:12 to 19:50 on October 13, 1999. The container was escorted from the Port of Santos to the Brasif container yard at the Sao Paulo Airport from 16:30 to 19:30. The truck driver testified that he received the container at 15:00, but this testimony is contradicted by the reports issued by his own employer and Libra. (Exhibits 95 and 98). The Estrada GPS tracking report also demonstrates that the container had been removed from the Libra Terminal and moved to a location in the general vicinity of the Port. (Exhibit 110). In addition, his testimony regarding the time of departure from the Port at 17:30 is somewhat contradicted by the testimony and reports of General Protection (Tempester). The substitution of sand for the perfumery products could have occurred between 11:12 and 16:30 and the Plaintiff has not produced any evidence to rule this out.
30. The container was received at the Brasif container yard by the night watchman without any exceptions other than the normal wear and tear of rust, dents, and scratches. The Estrada truck driver testified that the doors to the container could be opened in the yard. The General Protection transportation supervisor testified that General Protection only provides one guard in the gatehouse as security for the yard. The gatehouse monitors the entrance to both the container yard and the main office and warehouse. This guard is not allowed to leave the gatehouse other than to receive containers and he is not allowed into the second floor of the gatehouse. Accordingly, the guard has a limited view of the container yard as shown by the pictures of Brasif's container yard (Exhibit 103). There was significant container activity during the night as Estrada delivered thirteen containers to Brasif between 19:50 and 23:25.
31. Although Brasif's warehouse manager testified that a single camera covered the entire container yard, the Plaintiff never produced any plans or diagrams showing the location of the camera or the capacity of the camera and no one testified that they reviewed the film that the camera may have recorded of any activities in the container yard while the container was in the yard. Although the camera reportedly had videotapes to record the activities in the container yard, the tapes were erased and there was no evidence of what they may have recorded. Further, there are no records reflecting any security checks made in the container yard.
32. The container seals were cut and the container opened at approximately 9:30 a.m. on October 14, 1999 at Brasif's warehouse adjacent to the container yard at the Sao Paulo Airport. The three large crates which were at the rear of the container in the photographs taken by Parbel and Mr. Bethard were at the rear of the container. Behind the three large crates was Brazilian sand. Brasif's warehouse manager personally inspected the container and its seals before the container was opened. He did not observe any damage to the container's seals or locking mechanisms. The only exception he would have made to the container was the torn paper across the container doors. He was not, however, concerned about this exception at the time because the container had been previously inspected by Incotec at the Port of Santos, by the Federal Revenue Department (Customs) inspectors at the Port of Santos and the surveyor, Sierra Nascimiento. The container also did not have the required red flammable cargo sticker. (Zorzetto; Suarez). Mr. Zorzetto testified that sawing a container's rod or removing rivets "is the usual routine to open the door of the container not only in Brazil but in South America." Nevertheless, he did not detect any problems with the container's seals or locking mechanism. He merely observed the wear and tear on the container that had been observed from the inception of the shipment. (Zorzetto).
33. Parbel's and Plaintiff's expert, Fabio Micheletti, did not inspect the container until November 19, 1999, thirty six (36) days after the container was first opened. The photographs that he took of the container on that date are very different than the photograph that was taken by Sierra Nascimiento on the date the container was opened. A comparison of these photographs demonstrates that there had been a significant change in the condition of the exterior of the container, specifically with respect to the restraining bar at the rear of the door and for the first time photographs revealed changes or tampering with certain rivets. Based upon this inspection, Mr. Micheletti developed his theory as to how the container may have been accessed without breaching the three high security seals that had been placed on the container by Parbel, the Incotec seal, and the Brazilian Federal Revenue Department (Customs) seal. He did not verify this theory until an inspection of the container on January 27, 2000; i.e., one hundred five (105) days after the container was first opened. There is no evidence the container was secured in any manner from October 14, 1999 when it was opened until the dates of Mr. Micheletti's first or second examinations.
34. Mr. Micheletti closely reviewed the weight records for the container and determined that the container was weighed at the Port of Miami before delivery to MAERSK LINE and after the container was delivered by MAERSK LINE immediately before it entered Terminal 36. He concluded that the weight of the cargo said to be within the container was appropriate at the time the container entered Terminal 36. Significantly, he recommended that the container be weighed with the sand still inside and testified that such information would be vitally important to help solve the mystery as to when and where the substitution occurred but the Plaintiff, Parbel, and Brasif did not weigh the container or the sand. Further, the sand was removed before the container was returned to MAERSK LINE.
35. Mr. Micheletti acknowledged that it is difficult to establish with certainty where the loss occurred as all the reports of the inspection of the container and its seals are clean. Mr. Micheletti believes there had to be collusion and criminal conduct by one or more of the persons responsible for the care, custody, and control of the container. His guess as to where the loss may have occurred is speculation and cannot be considered by the Court. His guess is also inconsistent with the other facts in that the substitution is just as likely, if not more likely to have occurred while in the possession of the trucker at the Brasif container yard. As the Brasif container yard was only guarded by one night watchman in a guardhouse; was in a remote area, and has been the scene of other instances of sand or other material being substituted for cargo in connection with air shipments.
36. Brasif's import coordinator testified that she is not aware of any other shipment of goods by sea having arrived with sand within the past ten years. She acknowledged, however, that there have been air cargo shipments that arrived with sand or other material rather than the expected cargo. She further confirmed that when a container is discharged from the ship by Libra, it is under the control of the Federal Revenue Department (Customs) with Libra acting as the warehouse.
37. The alleged substitution of sand for perfumery products is not likely to have occurred while the container was in the Terminal 37 staging area because the container was weighed after leaving Terminal 37 and upon entering Terminal 36 and the weight of the container and its cargo at that time were found to be acceptable by Brasif (Harano) and by Parbel and Plaintiff's expert (Micheletti). In addition, Plaintiff did not present any testimony that there was any discrepancy or problem with the weight of the container and its cargo at that time. In addition, Mr. Micheletti testified that it would take at least five hours to substitute the sand for the perfumery products and the container was in the staging area for less than five hours. Finally, Mr. Lopes testified that the amount of activity in connection with the discharge of the vessel would preclude any tampering with the container in the staging area and the security in the staging area would not have permitted the container to be removed from the staging area and thereafter returned to the staging area. Common sense also dictates that thieves would not take the substantial risk in attempting to remove a container from a highly controlled and limited access area and then take the further risk of returning to the area through the terminal, Port, and Customs authorities and security. (Lopes).
38. The alleged substitution of sand for perfumery products is also not likely to have occurred while the container was in the possession of Libra because the container was subjected to multiple and extensive inspections by professional, governmental, and private inspectors, surveyors, and/or security personnel before entering and upon leaving the terminal and no exceptions, other than normal wear and tear, if any, were taken to the container, its seals, its locking mechanism, or its contents.
39. These inspections were performed by a Port tally clerk who inspected the container and its seals as soon as it was discharged from the vessel; the Incotec surveyor immediately after discharge from the vessel; a guard at the exit gate from the staging area adjacent to the vessel; a receiving clerk at the storage terminal; the Incotec surveyor again inspected the container at this time; a Brazilian customs inspector at the time the container was released to the trucker; the truck driver himself, an inspector for the trucker; the security guards from the escort service; and the guard at the exit gate from the Port of Santos. At all times the container had the three high security seals installed by Parbel. These seals included a bolt seal on each locking bar on the right door and a Navalock seal across the inner locking bars both doors. The three high security seals put on the container by Parbel were intact when the container was received by MAERSK LINE at the Port of Miami; when the container was discharged at the Port of Santos; and when the container was released by Libra to Brasif's trucker, Estrada. Incotec and Brazilian Customs officials also installed seals on the container after it left the Libra Terminal 36.
40. Although Plaintiff offered some evidence that the door handle rivets on the container, inspected more than a month and then three months after delivery, were not original, Plaintiff's expert must admit that he doesn't know when or where they may have been replaced. No other person who inspected the container during the shipping process noted any discrepancies with the condition of the container. All of the inspectors and surveyors are aware that surreptitious entry into containers can occur and therefore they are cautioned to carefully inspect the containers and their seals for evidence of tampering, yet there was no exception taken to the condition of the container, normal wear and tear excluded, or to the seals. It is as reasonable as not to conclude that the change in rivets and the cutting of the bar, if the same did occur, happened after the container had been seen by the inspectors and therefore, after delivery by MAERSK LINE. It is worth noting the obvious . . . and that is that plaintiff has the burden of proof, not only to show that a loss occurred but to show by a preponderance of the evidence in whose control the perfume was when it occurred.
CONCLUSIONS OF LAW
1. This case involves a claim by a subrogated insurer of a shipper against an ocean carrier arising from an alleged breach of contract of carriage. The matter, therefore, falls within the Court's admiralty and maritime jurisdiction under 28 U.S.C. § 1333.
2. The United States Carriage of Goods by Sea Act ("COGSA") applies ex proprio vigore (by operation of law) to "[e]very bill of lading . . . for carriage of goods by sea to or from ports of the United States." 46 U.S.C. § 1300, et seq. The parties agree that COGSA applies from the time the container was loaded aboard the vessel to the time when the container was discharged.
3. The Federal Bills of Lading Act or "Pomerene Act" also applies ex proprio vigore to all bills of lading issued by a common carrier for the transportation of goods from the United States in foreign trade. 49 U.S.C. § 80101, et seq.
4. The Harter Act applies from the time of discharge to the time of delivery. 46 U.S.C. § 190, et seq. The Harter Act, therefore, determines when the delivery of cargo to the consignee occurs.
5. Plaintiff cannot establish a prima facie case for loss under the facts of this case. The shipment involved in this lawsuit, as far as MAERSK LINE is concerned, was a shipment from the Port of Miami, Florida to the Port of Santos, Brazil. MAERSK LINE'S obligations as an ocean carrier transporting cargo under a bill of lading in international commerce are regulated pursuant to the provisions of COGSA, 46 U.S.C. § 1300, et seq.
6. In order for a claimant to establish a prima facie case under COGSA against an ocean carrier, the claimant must prove the shipment was delivered by the shipper to the ocean carrier in good condition, which in this case it did, and that the ocean carrier delivered the shipment to the consignee with a shortage, i.e., the claimant "must prove that the goods were . . . lost while in the carrier's custody." Sony Magnetic Products Inc. v. Merivienti O/Y, 863 F.2d 1537 (11th Cir. 1989).
7. In a case under very similar facts, Soraya Oriental Rugs v. Seatrain Lines, 435 F. Supp. 663 (N.D.Cal. 1977), the Plaintiff loaded and sealed oriental rugs in a container in Europe and gave the containers to Seatrain Lines for transport to the United States. Seatrain Lines transported the shipment from Europe to the East Coast of the United States by sea and then gave the shipment to the Penn Central Railroad who interchanged it to the Southern Pacific Transportation Company, who delivered the shipment in California. When the consignee opened the container after the motor carriage the rugs were wet and damaged. There was no proof of the condition of the rugs at the time they were delivered to the railroad at the rail origin, and the only evidence was that when the container was loaded in Europe the rugs were in good condition, and when the container was unloaded in California, the rugs were in a damaged condition. The Plaintiff attempted to rely on the bill of lading issued by the railroad which was without exception. In granting summary judgment to Southern Pacific, the Court held that a clean bill of lading with respect to a containerized shipment only serves as prima facie evidence as far as the condition was apparent on ordinary inspection of the goods. "Ordinary inspection of a sealed container discloses nothing about the condition of its contents unless external damage is present."
8. In this case, the container was not damaged in any way, normal wear and tear, if any, excluded, and the three high security seals were intact. The shortage could be discovered only by opening the container and examining the contents. Therefore, it is incumbent upon the Plaintiff to prove the contents of the container upon receipt by MAERSK LINE at the Port of Miami and upon discharge from the vessel at the Port of Santos, Brazil. In this regard, the consignee's insurer had a professional inspector/surveyor, Incotec, inspect the container and remain with the container until admitted to the Libra Terminal. If the record reveals the shortage could have occurred at any time after the container was discharged from the vessel in the Port of Santos, Brazil, such as while in the terminal, the trucker's possession for more than eight (8) hours, or the consignee's yard overnight, then Plaintiff has failed to prove the good condition of the contents upon delivery by MAERSK LINE.
9. It is undisputed in this case that Parbel loaded and sealed the container.
10. Since Plaintiff has failed to produce evidence to show what was in the containers at the time they were delivered by MAERSK LINE, Plaintiff has failed to establish its prima facie case. It is undisputed that the container, at the time it was delivered to MAERSK LINE was sealed with three separate high security seals. It is also undisputed that the container, when it was delivered at destination, was sealed with the same three high security seals. No exception was taken to the condition of the container or the seals at the time of delivery by MAERSK LINE. Indeed, Plaintiff cannot establish a prima facie case if the evidence indicates that the loss was as likely to have happened before or after MAERSK LINE had responsibility for the cargo, as when the cargo was actually in the custody of MAERSK LINE. Perugina Chocolates v. S.S. RO RO GENOVA, 649 F. Supp. 1235 (S.D.N.Y. 1986); Goya Foods, Inc. v. SS ITALICA, 561 F. Supp. 1077, aff'd., 742 F.2d 1434 (2nd Cir. 1983); Bally v. M/V "ZIM AMERICA," 22 F.3d 65 (2nd Cir. 1994).
11. In Sumitomo Corp. of America v. M/V SAINT VENTURE, 683 F. Supp. 1361 (M.D. Fla. 1988), the Court stated:
It is the carrier's lawful right to put the Plaintiff to its proof and for the defense to stand upon the insufficiency of the evidence of delivery of the cargo in good condition and/or discharge of the cargo in damaged condition. If the Plaintiffs proof is insufficient in either regard the carrier need not go forward with a showing of actual care provided to the goods. Compagnie de Navigacion v. Mondale United Corp., 316 F.2d 163 (5th Cir. 1963). [Emphasis supplied.]683 F. Supp. at 1367.
12. If the Plaintiff fails to establish its prima facie case, its complaint "must be dismissed" even if the cause of the loss or damage found at the point of ultimate destination may still remain in nubibus. M W Zack Metal Co. v. S.S. BIRMINGHAM CITY, 311 F.2d 334 (2nd Cir. 1962), cert. denied, 335 U.S. 816 (1967). Here, the Plaintiff has not met its burden and MAERSK LINE has demonstrated that the alleged loss could not have occurred while the container was in its possession by establishing that it received and delivered the container with the shipper's seals intact.
13. In this case, it is clear that MAERSK LINE is entitled to judgement for either of two simple reasons: a) MAERSK LINE properly delivered the cargo to Santos without incident, and/or b) there is no evidence that any damage or shortage to the cargo was not caused after delivery and by individuals or entities beyond MAERSK LINE's control.
14. While the container was in the United States, all proper security measures were taken to protect it and its contents. No security breaches of any kind were discovered while the container was at the Port of Miami, during its loading onto the M/V "CCNI AYSEN," or during the sea voyage where it was securely stored in an unaccessible location. When the vessel arrived in Santos, the sealed container arrived in the same good order and condition as when MAERSK LINE received it in Miami. This fact remains undisputed. Immediately upon arrival in Santos, Brazilian port personnel unloaded the container and, within a matter of hours, transferred it to a nearby private terminal selected by Brasif. In accordance with Brazilian law, the container remained in this terminal until customs authorities inspected and cleared it, whereupon the container was released to Brasif's trucker upon presentation of the proper bill of lading and import transit documents. Since Brazilian port laws and usage require delivery of cargo to a local depository agent pending customs inspection (unloading and transporting of cargo is under the exclusive control of private port entities, who act as fiduciaries, and the Brazilian government), MAERSK LINE is required to allow Brazilian workers to transfer the container from the vessel to the nearby terminal to await customs clearance. Indeed, the alleged loss of perfume products herein could just as easily have occurred during a time period (1) when MAERSK LINE held no control over activities and operations; (2) after the container was properly delivered; (3) when MAERSK LINE had already surrendered full control over its cargo; and (4) when the container had been entrusted to local port employees or customs authorities at Brasif's selected terminal.
15. Plaintiff has not presented any evidence to counter these facts and legal authorities, or which would indicate that the container was damaged during transit or prior to delivery to the Port of Santos. Instead, the "shortage" Plaintiff alleges, which is the sole basis for Plaintiff's alleged damages, is that the container was discovered in Brasif's terminal days after delivery filled with Brazilian sand and not the perfume products expected by the consignee. Thus, the alleged loss could only have occurred in Brazil after discharge — it would be senseless to conclude that the container was filled with Brazilian sand when loaded aboard the vessel in Miami, Florida or while on the high seas. Therefore MAERSK LINE cannot be found liable for any alleged loss after delivery of the shipper's loaded, stowed, and sealed container.
16. In Madow Company v. SS Liberty Exporter, 569 F.2d 1183 (2d Cir. 1978), the Court held that where there are several carriers transporting a shipment and it is unknown in whose possession the loss occurred, then a presumption arises that the loss occurred in the possession of the last carrier, and it is incumbent upon that carrier to go forward with evidence to overcome that presumption.
17. In this case, the loss, more likely than not, occurred at Brasif's premises or while in Estrada's possession. Absent proof that the loss occurred in MAERSK LINE's possession, the presumption applies to the facts of this case to bar the claim against MAERSK LINE.
CONCLUSION
18. Plaintiff has failed to establish a required prima facie case against MAERSK LINE as required by COGSA. Accordingly, Plaintiff's claim against MAERSK LINE is dismissed with prejudice. The Court will enter a separate Final Judgment in favor of MAERSK LINE.