Opinion
Civil Action No: 00-2744.
December 28, 2001
ORDER AND REASONS
Before the Court is Forthcome Shipping, Inc.'s motion for summary judgment. For the reasons stated below, the Court denies. the motion.
I. Background
This case arises out of the shipment of steel tubes carried aboard the M/V YOU LIANG between Japan and New Orleans, Louisiana in 1996. The vessel discharged the steel tubes in New Orleans on December 15, 1996. Plaintiff, Tokio Marine and Fire Insurance Company, LTD., as subrogee of Kanematsu USA, the owner of the cargo, alleges that the steel tubes were damaged during the voyage aboard the M/V YOU LIANG. Plaintiff's claims handlers, TM Claims Service, Inc., asked Messrs. Lamorte Burns, the claims handlers of the vessel owner Forthcome Shipping, Inc., for an extension of time to file suit. Lamorte Burns agreed to an extension subject to the condition that TM Claims obtain a similar agreement from the vessel's charterers, Kawasaki Kisen Kaisa, Ltd. ("KKK"). Plaintiff allegedly obtained numerous extensions between 1998 and 2000. Plaintiff filed this suit against the vessel in rem and Forthcome under the Carriage of Goods by Sea Act ("COGSA") on September 15, 2000.
Forthcome now moves for summary judgment on the grounds that COGSA requires all claims brought under it to be filed within one year of delivery. Forthcome contends that TM Claims never obtained an extension of time from KKK, as required by the terms of the extension Lamorte Burns gave to TM Claims. Rather, TM Claims obtained agreements for extensions from another entity, Tokai Shipping Co., Ltd., which lacked the authority to grant extensions of time on KKK's behalf. Plaintiff maintains that it satisfied the condition of Lamorte Burns' extension agreement because Tokai held itself out as KKK's agent, and it authorized multiple time extensions on KKK's behalf. Plaintiff also argues that Forthcome is equitably estopped from asserting the time bar defense.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Waiver of the COGSA Limitation Provision
Section 1303(6) of COGSA provides a one year limitation period in which to bring cargo claims. The section provides:
In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered . . . 46 U.S.C. § 1303(6).
A carrier may waive the right to invoke the COGSA time limitation, but the terms of the waiver must be strictly construed. Bunge Edible Oil Corp. v. M/V TORM RASK, 756 F. Supp. 261, 267 (E.D.La. 1991), aff'd, 949 F.2d 786 (5th Cir. 1992) (citing United Fruit Company v. J.A. Folger, 270 F.2d 666, 669 (5th Cir. 1959); General Electric Co. v. M/V Gediz, 720 F. Supp. 29, 30 (S.D.N.Y. 1989)); see also Adams v. Unione Mediterranea Di Sicurta, 1998 WL 229769, *3 (E.D.La. 1998). In some circumstances, however, a party, by his representations, promises, or conduct, may be estopped to assert the statute. United Fruit Co., 270 F.2d at 669; Mikinberg v. Baltic Steamship Co., 988 F.2d 327, 331 (2d Cir. 1993) ("A defendant will be estopped from asserting the COGSA statute of limitations as a defense where a plaintiff can show that he was misled by the defendants into reasonably and justifiably believing that the statute of limitations would not be used as a defense or would be extended.") (citing cases). In the context of COGSA's time limitation, the basic question in determining whether an estoppel exists is whether plaintiff has been misled by defendant's actions, that is, whether defendant's actions have lulled plaintiff into a false sense of security and so induced it not to institute suit in the requisite time period. See Securitas Bremer Allgemeine Verischerungs, A.S. v. M/V AURORA, 1990 WL 52096, *3 (S.D.N.Y. 1990) (citing Austin, Nichols, Co., Inc. v. The Cunard Steamship Limited, 347 F. Supp. 947, 949 (S.D.N Y 1973)).
Here, plaintiff argues that it satisfied the terms of the conditional offer made by Lamorte Burns because its claims handling agent consistently obtained agreements to extend the deadline to file suit from Tokai, which held itself out as KKK's agent. See Pl.'s Opp. to Summ. J. at 5; Pl.'s Exs. C, G. Plaintiff submitted evidence that Lamorte Burns, in response to TM Claims' initial request for an extension ( see Pl.'s Ex. A), sent a letter to Tokai asking Tokai to approach KKK in order to obtain KKK's agreement to extend the time to file suit. See Pl.'s Ex. B. The letter states that "[s]ince we believe you [Tokai] are either acting on behalf of Messrs. Kawasaki Kisen Kaisa as an operator or have sub-chartered the vessel from them, please approach them for their agreement to extend the time." Id. Tokai's response stated that "we handle claims for this vessel on behalf of KKK." See Pl.'s Ex. C. Lamorte Burns proceeded to inform TM Claims that the time extension would be granted on behalf of owner, the defendant, until March 15, 1998, subject to "KKK/Tokai's similar approval." See Pl.'s Ex. D. The note from Lamorte Burns further indicated that TM Claims should proceed in accordance with Tokai's instruction that it, Tokai, was working as KKK's claims handling agent for this vessel. Id. From that point on, the correspondence among Lamorte Burns, TM Claims, and Tokai followed a pattern in which TM Claims requested a time extension from Lamorte Burns; Lamorte Burns approved the extension subject to "KKK/Tokai's similar approval," and Tokai approved the extension without prejudice. See Pl.'s Ex. G. The final correspondence among the parties evidences an agreed-upon extension until September 15, 2000, the day this suit was filed. Id.
Defendant contends that plaintiff did not obtain a valid waiver because plaintiff did not obtain extensions of time directly frog KKK. Defendant presents no evidence that the conditions of its extension could be satisfied only by a direct response from KKK. On the contrary, its correspondence refers to "KKK/Tokai's similar approval." Moreover, defendant's own agent furnished plaintiff with the written statement from Tokai that it handled claims for KKK. See Pl.'s Ex. C. Therefore, the Court finds that plaintiff has raised a fact issue as to whether a waiver was obtained from KKK or an authorized agent of KKK sufficient to defeat defendant's motion for summary judgment.
On the equitable estoppel issue, plaintiff presents a fact issue as to whether it justifiably relied on representations from Lamorte Burns, defendant's agent, that authorizations obtained from Tokai would satisfy the terms of the conditional extensions. Between December 1997 and June 2000, TM Claims made numerous requests for time extensions, and Lamorte Burns regularly replied that the extensions were granted subject to "KKK/Tokai's similar approval." See Pl.'s Exs. D, F, G. Plaintiff's evidence shows that TM Claims obtained time extensions from Tokai in response to the correspondence and requests from Wendy Wang of Lamorte Burns, and held off on filing suit until September 15, 2000, the latest date to which defendant apparently granted plaintiff an extension. See Pl.'s Ex. G. Plaintiff alleges that it reasonably relied on the assurances from Lamorte Burns that Tokai's approval of time extensions would satisfy the condition of defendant's agreement to extend the time for filing suit. The evidence suggests that defendant's agent represented to TM Claims that approval from Tokai would be sufficient to satisfy defendant's condition. It was reasonable for plaintiff's agent to rely on Wendy Wang's representations because she was Lamorte Burns' point person for claims in this case. Therefore, the Court finds that plaintiff has raised an issue of fact sufficient to defeat defendant's motion for summary judgment on estoppel.
III. Conclusion
For the foregoing reasons, the Court DENIES defendant's motion for summary judgment.