IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 97-08747-CV-DLG
FISHMAN & TOBIN, INC., individually
and for the use
and benefit of the Insurance Company
of North America,
MACCLENNY PRODUCTS, INC., individually
the use and benefit of the Insurance
Company of North
America, et al.,
TROPICAL SHIPPING & CONSTRUCTION
Appeal from the United States District Court
for the Southern District of Florida
(January 31, 2001)
Before BARKETT and WILSON, Circuit
Judges, and DOWD*, District Judge.
WILSON, Circuit Judge:
Fishman & Tobin ("Fishman")
and MacClenny Products ("MacClenny"), two manufacturers
that ship clothing from the Caribbean to the United States, appeal
the amount of judgment awarded to them when a carrier lost their
cargo at sea. In resolving their dispute, this Court for the
fourth time enters the murky waters of the Carriage of Goods
by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. More
specifically, we endeavor to provide clarity to the reoccurring
issue of what constitutes a "package" under section
1304(5) of COGSA, since the term is not defined in the statute.
After thorough review of the record and the proceedings below,
we now affirm the district court's ruling on the matter.
Fishman and MacClenny are two out
of a number of American clothing manufacturers who have their
clothing assembled in Santiago, Dominican Republic and shipped
to the United States under the Caribbean Basin Initiative program.
Fishman imports children's clothing.
The company ships its product in a unit referred to in the industry
as a "big pack." A "big pack," which is akin
to a pallet, has 4 x 4ft. dimensions, is slotted at the bottom
so that it can be picked up by a forklift, and is partially enclosed
in corrugated cardboard with a base and cover made of plastic.
Inside these containers are bundles of boys' pants and the like
which are wrapped in paper and sorted by style.
MacClenny is an importer of men's
suits and jackets. For the past ten years, MacClenny sent all
of its shipments with the same carrier, Tropical Shipping ("Tropical"),
until the incident culminating in this suit. On a weekly basis,
MacClenny routed four ocean containers of cloth, buttons, zippers,
labels, hangers, and plastic bags to Santiago to be assembled.
Every week, between seven and twelve containers of assembled
men's jackets were returned to Florida. The assembled suit jackets
were shipped in extra-tall containers to which structural beams
are attached to place these "garment-on-hanger packages."
Nylon ropes were hung from these beams and knotted at certain
intervals so that the hangers held during shipping. Each garment-on-hanger
container could hold between 4500 and 5500 hangers. Tropical
regularly sent its employees to MacClenny's local partner, X-Cell
Fashions, to have these specially-designed containers cleaned,
lining installed, and ropes checked so that the newly pressed
suits enclosed in plastic bags did not become wrinkled or soiled
Both shippers regularly dealt with
Tropical Shipping to transport their clothing. A truck owned
by Tropical would pick up the clothing at the shippers' respective
warehouses along with a cargo manifest and drive it to port.
Once the cargo arrived at the port, it would be transferred to
the ship's containers and a bill of lading would be prepared
and sent back to the warehouses in accordance with industry custom.
Typically, the bills of lading arrived after the ships set sail.
During one such routine voyage,
Tropical Shipping had a number of containers fall overboard due
to improper storage on the vessel. Tropical admits its liability
and asserts that section 1304(5) of COGSA limits its liability
to $500.00 per package lost. The parties disagree, however, on
the application of the COGSA definition of package to the units
that were shipped.1
The parties brought their disagreement
before the district court on competing motions for summary judgment.
After reviewing the facts before it, the district court decided
in favor of Tropical, concluding that the Fishman package was
a big pack and fair recovery was the amount of $19,500 or 39
"big pack" packages at $500 per package. MacClenny
would receive only $500 in compensation for the loss of only
one container. Both Fishman and MacClenny now appeal that ruling.
The main point of contention between
the two sides is how to apply the COGSA definition of package
to the units shipped. We previously adopted the Second Circuit's
definition of "package". See Hayes-Leger Assocs.,
Inc. v. M/V Oriental Knight, 765 F.2d 1076, 1082 (11th Cir.
1985). A package is "a class of cargo, irrespective of size,
shape or weight, to which some packaging preparation for transportation
has been made which facilitates handling, but which does not
necessarily conceal or completely enclose the goods." Aluminios
Pozuelo, Ltd. v. S.S. Navigator, 407 F.2d 152, 155 (2d Cir.
1968). There are four basic principles identified in Hayes-Leger
for applying COGSA's section 1304(5) to containerized shipments:
(1) the contractual agreement between the parties as set forth
in the bill of lading; (2) the term "package" means
the result of some preparation for transportation "which
facilitates handling but which does not necessarily conceal or
completely enclose the goods;" (3) a container cannot be
a COGSA package absent "a clear agreement between the parties
to that effect, [and] at least so long as its contents and the
number of packages or units are disclosed;" and (4) "absent
an agreement in the bill of lading as to packaging of the cargo,
goods placed in containers and described as not separately packaged
will be classified as goods not shipped in packages." Hayes-Leger,
765 F.2d at 1080 (citation omitted) (quotations omitted).2 We
now attempt to apply this less than transparent definition to
each of the cases at hand.
Fishman & Tobin
A. The Fishman Dozen
Fishman suggests that the smaller
bundles of its pants, referred to as "dozens", should
be considered packages rather than the "big packs"
used to store those dozens before they go into the containers.3See
Mitsui & Co., Ltd. v. American Export Lines, Inc., 636
F.2d 807, 818 (2d Cir. 1981) ("cartons, crates and other
units that were treated as COGSA packages when they were shipped
breakbulk should ordinarily continue to be so treated when they
are shipped in containers"); Matsushita Elec. Corp v.
S.S. Aegis Spirit, 414 F. Supp. 894, 907 (W.D. Wash.
1976) ("if the individual crates or cartons prepared by
the shipper and containing his goods can rightly be considered
`packages' standing by themselves, they do not suddenly loose
that character upon being stowed in a carrier's container").
Any grouping demonstrating some
preparation may be considered a package. Yet, it is clear that
the number of packages should be fully and accurately disclosed
and easily discernable by the carrier, otherwise carriers will
suffer unforeseen liability. See Hayes-Leger, 765 F.2d
at 1082; Binladen BSB Landscaping v. M.V. "Nedlloyd Rotterdam",
759 F.2d 1006, 1012-14 (2d Cir. 1985). As a result, "the
touchstone of our analysis" is the contractual agreement
between the parties as set forth in the bill of lading. See
Hayes-Leger, 765 F.2d at 1080 ("when a bill of lading
discloses the number of COGSA packages in a container, the liability
limitation of section 4(5) applies to those packages").
The bill of lading made out by Tropical states the following:
marks & quantity description gross weight
numbers of goods
As Addr. 1 x 40' Stc. 39 Big 24207
As Addr. 1 x 40' Stc. 17 Big 10552
The customs declaration form made
out by Fishman includes all the same information but also indicates
the value of the items being shipped. Neither form refers to
the number of dozens of pants being shipped.
Fishman contends that the cargo
manifest and reembarque4 are the relevant documents to be
examined as they were prepared by Fishman and were simply miscopied
from Fishman's form to the bill of lading. See In re Belize
Trading, Ltd. v. Sun Ins. Co. of New York, 993 F.2d 790,
792 (11th Cir. 1993) (holding that when the bill of lading and
the shipping documents do not conform, the bill is construed
as having reflected the number of packages designated in the
shipping invoices and as such be in conformity with COGSA). In
this case, the reembarque states, although not clearly, that
2,325.08 dozens of pants are inside the relevant big packs.
cantidad de clases de bultos detalles de las
quantity/number type of packages description of
of packages goods5
39 big pack containing:
As both Tropical's interpretation
of the bill of lading and the reembarque agree as to the type
and number of packages shipped, there is no need to look further.
Recovery will be based on the thirty-nine big packs indicated.
Even without such clarification,
Fishman would be hard pressed to support their claim that "dozens"
are the relevant unit of measurement. By it's own admission,
Fishman acknowledges that "dozens" as a unit of measurement
and packaging in this case could refer to any number of pants
from one to twelve. The designation really referred to the total
number of pants in the container rather than some common form
of packaging that facilitates transportation. As a result, not
only is a Fishman "dozen" an inaccurate unit of measurement,
it is one not clearly denoted on the cargo manifest, customs
declaration, or bill of lading. As such, the Fishman dozen cannot
be used as the measure of packaging referred to by COGSA. Accordingly,
we find nothing wrong with the district court's conclusion that
the "big packs" as opposed to the "dozens"
were the appropriate unit of measurement.
Based on this analysis, Fishman
received a fair settlement from the district court. The cargo
manifest and the bill of lading each indicate 39 big packs and
state nothing about the smaller dozens. The recovery it received
of $19,500, or $500 per big pack, is also slightly more than
the declared value of the product (although significantly less
than the insured value).7
B. Collateral Estoppel
Fishman also argues that it is entitled
through the doctrine of collateral estoppel to benefit from the
district court's favorable ruling in a related case where the
relevant "package" was defined as each "dozen"
of pants. See Ins. Co. of N. Am. v. Tropical Shipping &
Constr. Co., Ltd., S.D. Fla. 1998, __ F.Supp.2d __, (No.
97-1782-CIV-King June 2, 1998) (unpublished). Collateral estoppel
forecloses re-litigation of an issue of fact or law where an
identical issue has been fully litigated and decided in a prior
suit. See Grosz v. City of Miami Beach, Fla., 82 F.3d
1005, 1006 (11th Cir. 1996).
In the related case, both the cargo
manifest and the bill of lading clearly indicated the "dozens"
of pants being shipped. See Ins. Co., No. 97-1782-CIV-King.
There was also evidence that the "dozen" referred to
in that opinion was actually packaged units of twelve pair rather
than the Fishman dozen at issue here. Thus, the carrier in that
case was on notice that the dozens would constitute packages.
See Sony Magnetic Prods. Inc. v. Merivienti O/Y, 863 F.2d
1537, 1542 n.7 (11th Cir. 1989). This is not the case with Fishman
and Tropical, where Fishman gave Tropical no indication that
the relevant unit in question would be a dozen.
Furthermore, Tropical rightly asserts
that the cases are factually dissimilar and legally incomparable
because there is no indication that the Insurance Co.
district court considered all the relevant case law in the matter,
i.e., Hayes-Leger and the Second Circuit case law adopted
therein. As a result, we find that the cases are factually and
legally distinct and that collateral estoppel does not apply.
A. Containerized Packaging
For MacClenny, the case is different.
It argues that a single jacket packaged on a hanger and enclosed
in a poly bag is understood in the industry to be the unit of
packaging. Furthermore, uncontroverted evidence in the form of
affidavits state that U.S. Customs compels the parties to specify
the jackets as units, thus establishing each packaged jacket
as a standard shipping unit. The cargo manifest given
to Tropical Shipping indicates that 5000 units or packages are
being shipped for a total value of $23,750. The bill of lading
also corroborates this description.8
Marks and Quantity Description Goss weight
Numbers of Goods
As Addr. 1 x 40' Stc. 5,000 7515
Tropical, nonetheless, offers two
reasons why MacClenny should recover only $500 for a single container
lost instead of the 5,000 units MacClenny claims. The first reason
is that while most courts are reluctant to recognize containers
as packages because it "is inconsistent with a congressional
purpose of establishing a reasonable minimal level of liability,"
Mitsui, 636 F.2d at 820, containers will be treated as COGSA
"packages" if the bill of lading so provides. See
Hayes-Leger, 765 F.2d at 1080-81. Second, they argue that
only the container size "1 x 40'" is listed in the
quantity column and no other packaging measurement is indicated.
The world of cargo shipping has
changed substantially since the implementation of COGSA in 1936.
See generally, Joseph C. Sweeney, The Prism of COGSA,
30 J. Mar. L. & Com. 543 (1999); Howard M. McCormack, Uniformity
of Maritime Law, History, & Perspective from the U.S. Point
of View, 73 Tul. L. Rev. 1481 (1999); Schmeltzer & Peavy,
Prospects and Problems of the Container Revolution, 1
J. Mar. L. & Com. 203 (1970). At the time of the law's enactment,
Congress did not and could not foresee the advent of containerized
shipping. See Allstate Ins. Co. v. Inversiones Navieras Imparca,
C.A., 646 F.2d 169, 170 (5th Cir. Unit B May 1981). While
the practice of shipping goods in individualized containers has
helped to prevent exposure of products to the elements, it has
created infinite difficulties in applying COGSA to shipments
that are lost at sea. Tropical correctly assesses our reluctance
to hold that a container is a package, where more accurately
it may be considered but "a modern substitute for the hold
of the vessel." Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 270 (1977). In fact:
[W]e cannot escape the belief that
the purpose of § 4(5) of COGSA was to set a reasonable figure
below which the carrier should not be permitted to limit his
liability and that "package" is thus more sensibly
related to the unit in which the shipper packed the goods and
described them than to a large metal object, functionally a part
of the ship, in which the carrier caused them to be "contained."
Leather's Best, Inc. v. S.S.
Mormaclynx, 451 F.2d 800,
815 (2d Cir. 1971) (holding that the 99 bales of leather inside
a container constituted the relevant package for COGSA purposes);
see also Allstate, 646 F.2d at 172-173 (cartons of electronic
equipment); Marcraft Clothes, Inc. v. M/V "Kurobe Maru",
575 F. Supp. 239, 243 (S.D.N.Y. 1983) (suits on hangers); Inter-
American Foods, Inc. v. Coordinated Caribbean Transport, Inc.,
313 F. Supp. 1334, 1339 (S.D. Fla. 1970) (cartons of frozen shrimp).
Therefore, we approach any attempt to define a container as a
COGSA package with great reluctance.
Moreover, our inquiry into the matter
does not end where Tropical would like at a quick glance at the
"number of packages" column on the bill of lading.9 While
the "number of packages" column is plainly our starting
point in determining these issues, the analysis does not end
there. See Hayes-Leger, 765 F.2d at 1081; Seguros "Illimani"
S.A. v. M/V Popi P, 929 F.2d 89, 94 (2d Cir. 1991). "[W]hen
a bill of lading refers to both containers and other units susceptible
of being COGSA packages, it is inherently ambiguous." Monica
Textile Corp. v. S.S. Tana, 952 F.2d 636, 642 (2d Cir. 1991);
Mitsui, 636 F.2d at 822-23. Such ambiguity is normally
resolved against the carrier absent evidence that both the shipper
and carrier clearly and explicitly agreed to treat the container
as a package.10
There is no such explicit agreement here.
This Court has also stated that
the limitation on recovery will not be followed where the carrier
description is self-serving. See Belize Trading, 993 F.2d
at 792. Similar to the present case, Belize involved a
dispute in which the shipper indicated in the cargo manifest
the number of packages it intended to declare per container and
the carrier in writing the bill of lading ignored the delineation
and simply wrote "1 container." The Belize court
distinguished Belize from Hayes-Leger by stating
that in Hayes-Leger, the parties agreed that the bill
of lading would only indicate containers. See id. at 792
n.6. There was no such agreement here. In the bill of lading
sent to MacClenny after the ship set sail, Tropical listed only
the dimensions of the container in the quantity column.
In this case, while the dimensions
of the container were indicated in the quantity column, the description
states that "5000 units men's suits" are inside the
container. MacClenny presented evidence that the description
of 5000 units may be attributed to U.S. Customs rules and regulations
and represents a kind of de facto shipping unit. MacClenny's
reembarque contains roughly the same information as the bill
of lading but the commercial invoice on the other hand clearly
indicates that each jacket is a package.11 This internal conflict between
the documents written by MacClenny's agents further complicates
Despite the ambiguities and conflicts
among the evidence presented at summary judgment, a review of
both the customs declaration form and reembarque indicate that
MacClenny of their own will stipulated under the number of packages
column only one. The evidence presented in competing motions
for summary judgment that each garment-on-hanger is a recognized
shipping unit is inconclusive.12 Furthermore, our precedent has
clearly required that the number of packages that are declared
must be indicated in the number/quantity of packages column on
the bill of lading. See Hayes-Leger, 765 F.2d at 1081.
Absent such an indication (and in light of the circumstances
such as the present), the shipper's own documents as the next
most reliable source of information should give some clear indication
that more than one package is being shipped in order to claim
After more than ten years in the
shipping business, MacClenny is hard pressed to argue that it
did not understand the significance of correctly completing all
the declaration forms and bills to COGSA recovery. In light of
the fact that neither the bill of lading nor the reembarque or
customs form offer any clear indication that each garment-on-hanger
was the relevant unit of packaging being shipped and our precedent
holding that such information need be provided, we affirm the
district court's award of $500 for a single container shipped.13
B. Intra-Court Comity
Finally, appellants ask us to consider
whether the district court erred in not applying intra-court
comity and following the decisions of Dorby Frocks, No.
95-0331-CIV-LENARD. We will address this issue only briefly.
We are aware of the need for consistency in the administration
of the judicial process. The issue takes on greater saliency
in cases such as this where an attempt is made not just to divine
the thoughts of Congress but to create judicial precedent consistent
with the opinions of this Circuit, the federal judiciary generally,
and, as this is a matter of international convention, a result
not entirely devoid of the awareness of the potential for international
Nonetheless, it should be noted
that there is a paucity of case law dealing with intra-court
comity. Courts follow the doctrine to provide a uniform interpretation
of the law. See United States v. Anaya, 509 F. Supp. 289,
293 (S.D. Fla. 1980), aff'd sub nom United States v. Zayas-Morales,
685 F.2d 1272 (11th Cir. 1982). Unlike circuit court panels where
one panel will not overrule another, see Julius v. Johnson,
755 F.2d 1403, 1404 (11th Cir. 1985), district courts are not
held to the same standard. See Anaya, 509 F.Supp. at 293
n.2 (holding that even district court cases decided by panels
of three have no precedential value). While the decisions of
their fellow judges are persuasive, they are not binding authority.
See Aguirre v. United States, 956 F.2d 1166 (9th
Cir. 1992) (unpublished); Stephen J. Powell, M. Linda Concannon,
Stare Decisis in the Court of International Trade: One Court
or Many?, 408 PLI/Comm 351, 358-361 (1987). As a result,
the district court cannot be said to be bound by a decision of
one of its brother or sister judges. Based on this, as well as
the lack of precedent to conclude that intra-court comity applies
between courts on the district court level, we find that this
issue has no merit.14
After thorough review of the issues
before us, we affirm the district court's ruling as to both Fishman
& Tobin and MacClenny Products.
Honorable David D. Dowd, Jr., U.S.
District Judge for the Northern District of Ohio, sitting by
The Carriage of Goods by Sea Act,
46 U.S.C. § 1304(5), provides in part:
Neither the carrier nor the ship
shall in any event be or become liable for any loss or damage
to or in connection with the transportation of goods in an amount
exceeding $500 per package lawful money of the United States,
or in case of goods not shipped in packages, per customary freight
unit, or the equivalent of that sum in other currency, unless
the nature and value of such goods have been declared by the
shipper before shipment and inserted in the bill of lading. This
declaration, if embodied in the bill of lading, shall be prima
facie evidence, but shall not be conclusive on the carrier.
further summarized these four points into the following two rules:
(1) when a bill of lading discloses
the number of COGSA packages in a container, the liability limitation
of section 4(5) applies to those packages; but (2) when a bill
of lading lists the number of containers as the number of packages,
and fails to disclose the number of COGSA packages within each
container, the liability limitation of section 4(5) applies to
the containers themselves.
765 F.2d at 1080.
Both sides agree that the term "big
pack" is a customary unit of packaging in the industry.
The reembarque is another piece
of customs documentation.
This is a loose translation of the
reembarque which is written in Spanish.
The invoice and other reembarque
forms are slightly different in that they state "DZ"
after listing the number of pants being shipped. ("DZ"utilized
as an abbreviation for dozen).
The cargo declaration contains a
slightly different description of the goods. It states "1
x 40' STC. 39 big pack containing 27,908 units boy's pants,"
which is roughly the number of dozens multiplied by 12.
Furthermore, if Fishman wanted greater
insurance coverage on its clothing, it could have paid additional
freight charges, thus opting out of COGSA coverage. See Fireman's
Fund Ins. Co. v. Tropical Shipping & Constr. Co. Ltd.,
Case No. 96-8341-CIV-Ryskamp (S.D. Fla. 1997); New Hampshire
Ins. Co. v. Seaboard Marine, Ltd., 1992 A.M.C. 279 (S.D.
Fla. 1992). Not paying the additional amount implies a
conscious decision to adhere to COGSA's limited liability. In
fact, both Fishman and MacClenny chose not to opt out of COGSA's
limitation but instead transferred the risk of loss greater than
the COGSA limitations from themselves to their insurer. See
Travelers Indem. Co. v. The Vessel Sam Houston, 26 F.3d 895,
900 (9th Cir. 1994) ("[A] shipper who chooses to insure
its cargo through an independent insurance company has made a
conscious decision not to opt out of COGSA's liability limitation").
Fishman's reembarque form further supports this theory in that
it declares the insurance value of the shipment as well as the
value of the goods leaving port. As a result of the clear statements
on the bill of lading and declaration forms and the fact that
Fishman chose not to opt out of COGSA coverage, the district
court's award to them of $19,500 stands.
Additionally, over the years, Tropical
has informed MacClenny when shipments did not conform to the
number of units indicated in the bill of lading and that number
was adjusted by the one or two units that the container fell
short. Evidence of this course of dealing may very well establish
that both parties understood each suit to be a COGSA unit. See
e.g., Ins. Co. of N. Am. v. NNR Aircargo Serv. (USA),
Inc., 201 F.3d 1111, 1113-14 (9th Cir. 2000).
As previously stated, where the
bill of lading does not accurately reflect information provided
by the shipper to the carrier, we look beyond it to the documents
provided by the shipper. See In re Belize Trading, 993
F.2d at 792.
The reason for such skepticism in
approach, which many courts have implicitly recognized, is that
a bill of lading is nothing more than a contract of adhesion,
and rarely does a shipper intend to provide COGSA coverage to
the container alone and not to some form of the goods stowed
inside it. Allowing recovery for the container where no other
explicit reference was made to packaging is simply a legal convenience
to ensure a minimal level of recovery. See Mitsui, 636
F.2d at 816-17.
A quick sampling of the commercial
invoice reveals the following designations:
1,706 50% wool 50% lambswool
1,264 74% polyester 21% wool 5% silk
MacClenny is also unable to argue
that each unit is a "customary freight unit" as they
are not "customarily used as the basis for the calculation
of the freight rate to be charged." Caterpillar Overseas
S.A. v. Marine Transport, Inc., 900 F.2d 714, 722 (4th Cir.
This is not to say that there may
never be a case where the conflict between the information provided
in the quantity column and description column would lead to a
different result. There was simply not enough evidence to support
that conclusion in this case. It is also our hope that by providing
a bright-line rule now, such conflicts may be avoided in the
future and shippers and carriers alike will be on notice as to
how to proceed.
Appellants also raise the issue
of stare decisis. We choose not to address that issue
as it can only apply in situations where a court is bound by
its own controlling decisions or that of courts to which it is
obedient. See Jaffree v. Wallace, 705 F.2d 1526, 1532
(11th Cir. 1983), aff'd 472 U.S. 38 (1985). In the case
of the Southern District of Florida Court, the only courts it
must be obedient to are this Circuit and the Supreme Court of
the United States. See id; Motorcity of Jacksonville, Ltd.
v. Southeast Bank N.A., 120 F.3d 1140, 1143 (11th Cir. 1997).