Fishman & Tobin, Inc. v. Tropical Shipping And Construction Co., Ltd.

1999 AMC 1051 (1999)

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Nature of the Case

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Facts

MacClenny Products (P) was the owner of the lost cargo that consisted of 5,000 men's jackets. Each jacket was placed on a hanger, then wrapped in plastic, and hung inside a 40-foot container that Tropical Shipping (D) supplied to it. D picked up the load from the X-Cell factory that made the jackets. X-Cell provided the carrier with a customs document called a reembarque and a commercial invoice. Both of these documents listed the package as '1 [container]', and described the shipment as 5,000 units of men's jackets. D issued a bill of lading. The bill of lading described the shipment as one forty-foot container said to contain 5,000 units of men's jackets. The container with the 5,000 jackets was lost overboard. MacClenny Products (P) asserts that each individually wrapped jacket is a package and that D is liable to it in the amount of $ 231,557.96. D argues that the one forty-foot container holding the jackets is the COGSA package and that its liability is limited to $500. Fishman & Tobin (P) shipped 27,908 pairs of boys' pants. Minikin Togs assembled the pants for Fishman & Tobin (P). Minikin Togs sorted the pants into bundles. Each bundle 'was not to exceed a dozen' pairs of pants, and was held together by a three-inch wide paper band. After banding the pants, Minikin Togs packaged them into 39 cartons called big packs. It then placed the big packs into one 40-foot container that D supplied to it. D also picked up a reembarque and commercial invoice prepared by Minikin Togs. The reembarque listed the packages as big packs and described the shipment as dozens of boys' pants. D entered the numbers of big packs under the 'packages' column of the commercial invoice. Under the 'quantity' column of the invoice, the shipper listed the numbers of dozens of boys' pants. Based on the information in these two documents, D issued a bill of lading that described the shipment as one 40-foot container said to contain 39 big packs containing 27,908 units of boys' pants. Fishman & Tobin (P) argue that each paper bundle containing not more than one dozen boys' pants constitutes a package and that D is liable to it in the amount of $190,600.60. D argues that each big pack containing the boys' pants is a package and that its liability to Fishman & Tobin (P)is, therefore, limited to $ 19,500.00, or $ 500.00 per lost big pack. Everyone moved for cross-motions of summary judgment.