|United States Court of Appeals,
No. 360, Docket 91-7635.
MONICA TEXTILE CORPORATION, Plaintiff-Appellant,
S.S. TANA, her engines, boilers, etc., Barber
West Africa Lines, Barber
Steamship Lines, Inc., Barber Steamship Lines
(N.A.), Inc., and Sekihyo Line
(Panama), S.A., Defendants-Appellees.
Argued Oct. 16, 1991 - Decided Dec. 23, 1991.
Peter D. Fenzel, New York City (McDonald,
Herbermann & Fenzel, of counsel), for plaintiff-appellant.
Richard V. Singleton, II, New York City (Todd
P. Kenyon, Healy & Baillie, of counsel), for defendants-appellees.
Before KEARSE, PRATT and McLAUGHLIN, Circuit
McLAUGHLIN, Circuit Judge:
We are (once again) presented with "the latest
skirmish in the age old war between shippers and carriers over their respective
rights and liabilities." Matsushita Elec. Corp. v. S.S. Aegis Spirit, 414
F.Supp. 894, 897 (W.D.Wash.1976). This case requires us to revisit the
issue whether a massive shipping container is a "package" for purposes
of the $500 per-package limitation on liability of the Carriage of Goods
by Sea Act ("COGSA"), 46 U.S.C.App. § 1304(5).
Holding that the single shipping container
was the relevant COGSA package, the district court entered a $500 judgment
for the shipper. We now reverse and hold that each of the 76 bales of cloth
stowed inside the container is a separate package for COGSA purposes.
Monica Textile Corporation ("Monica" or the
"shipper") engaged the defendants- carriers to transport a single 20-foot
shipping container from Africa to Savannah, Georgia. The parties' bill
of lading disclosed that the container, which Monica had stuffed and sealed,
held 76 bales of cotton cloth. The goods were damaged in transit and Monica
brought suit in the District Court for the Southern District of New York
(Sand, J.) to recover for the loss.
The carriers moved for partial summary judgment
limiting their liability to $500 pursuant to COGSA's liability limitation
provision, 46 U.S.C.App. § 1304(5). The district court initially denied
the motion, holding "that where the bill of lading prepared by the carrier's
agent discloses a specific number of identifiable units as the contents
of the container, those units [the bales of cloth] constitute the package"
for purposes of COGSA's limitation on liability. Monica Textile Corp. v.
S.S. Tana, 731 F.Supp. 124, 127 (S.D.N.Y.1990) ["Monica I "].
Shortly thereafter, this court decided Seguros
"Illimani" S.A. v. M/V Popi P, 929 F.2d 89 (2d Cir.1991), which held that
for COGSA purposes the number of packages specified in the "No. of Pkgs."
column of the bill of lading is generally controlling. Id. at 94. In the
present case, though the "DESCRIPTION OF GOODS" column of the bill of lading
stated that the contents of the container consisted of 76 bales of cotton
cloth, the "No. of Pkgs." column of the bill of lading had the number "1"
typed in, and a line labeled "Total Number of Packages or Units in Words
(Total Column 19 [No. of Pkgs. column] )," had the word "ONE" typed in.
In light of these facts, Judge Sand permitted the carriers to renew their
summary judgment motion to limit their liability to $500, and the district
court reversed itself, holding that our intervening decision in Seguros
compelled a finding that the single container, rather than the 76 bales
stowed therein, was the relevant COGSA package. See Monica Textile Corp.
v. S.S. Tana, 765 F.Supp. 1194, 1195-96 (S.D.N.Y.1991) ["Monica II "].
Because the carriers conceded liability, the district court entered judgment
for Monica in the amount of $500.
Monica appeals the judgment of the district
court, maintaining that the 76 individual bales of cloth, not the solitary
shipping container, were the appropriate COGSA packages. We agree and therefore
reverse the judgment of the district court.
The district court reversed itself in Monica
II on the basis of Seguros, which it read
as establishing a bright-line rule for determining
the number of COGSA packages from the bill of lading. The number of packages
is the number appearing in the "No. of Pkgs." column of the bill, unless
other evidence of the parties' intent plainly contradicts the applicability
of that number, or unless the item referred to by that number is incapable
of qualifying as a COGSA package. Monica II, 765 F.Supp. at 1195-96. The
district court's characterization of the Seguros rule is accurate, as far
as it goes. Seguros, however, involved 600 separate steel-strapped bundles,
each containing 15 tin ingots. The issue therefore was whether there were
600 "packages" or 9,000 (600 x 15) "packages". Most significantly, our
Seguros decision did not purport to apply to containers, and the district
court's application of the Seguros rule to the container context was erroneous.
An understanding of the "container" cases is necessary to appreciate our
present holding that Seguros should not be extended to containers.
The Container Cases
Long before COGSA was enacted, industrialized
nations recognized the need to reconcile the desire of carriers to limit
their potential liability with their vastly superior bargaining power over
shippers. See H.R.Rep. No. 2218, 74th Cong., 2d Sess. 6-9 (1936); Mitsui
& Co. v. America Export Lines, Inc., 636 F.2d 807, 814-15 (2d Cir.1981);
Comment, Containerization, the Per Package Limitation, and the Concept
of "Fair Opportunity," 11 Mar.Law. 123, 124 (1986). The nations at the
Brussels Convention of 1924 balanced these competing concerns with a per-package
limitation on liability. See International Convention for the Unification
of Certain Rules Relating to Bills of Lading, Aug. 25, 1924, 51 Stat. 233,
120 L.N.T.S. 155 (1931-32), reprinted in A. Knauth, The American Law of
Ocean Bills of Lading 37-72 (4th ed. 1953); Note, Defining "Package" in
the Carriage of Goods by Sea Act, 60 Tex.L.Rev. 961, 964-66 (1982). The
principles established by the Brussels Convention became the template for
COGSA. See Robert C. Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297,
301, 79 S.Ct. 766, 769, 3 L.Ed.2d 820 (1959) ("[t]he legislative history
of the Act shows that it was lifted almost bodily from the Hague Rules
of 1921, as amended by the Brussels Convention of 1924").
Unhappily, neither the statute nor its legislative
history provides any clue as to the meaning of "package" in the Act. See
Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152, 154 (2d Cir.1968).
Despite the difficulties this lack of guidance engendered, [FN1] courts
managed to muddle through this oft- litigated issue by generally deferring
to the intent of the contracting parties when that intent was both clear
and reasonable. This intent-approach later became strained by technological
advances in the shipping industry. Indeed, "[f]ew, if any, in 1936 could
have foreseen the change in the optimum size of shipping units...." Standard
Electrica, S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft,
375 F.2d 943, 945 (2d Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 97, 19
L.Ed.2d 89 (1967). FN1. Compare, e.g., Hartford Fire Ins. Co. v.
Pacific Far East Line, Inc., 491 F.2d 960, 965 (9th Cir.) (holding that
18-ton electrical transformer bolted to a skid was not a COGSA package),
cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974) with Aluminios
Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152, 155 (2d Cir.1968) (holding
that a 3- ton toggle press bolted to a skid was a COGSA package). See generally
id. at 154-56 (discussing pre-container cases).
We first addressed COGSA's application to
shipping innovations in Standard Electrica, which required us to determine
which was the relevant COGSA package: each 60-pound carton or the pallets
on which the cartons were bound together. Divining the parties' intent,
we held the pallet to be the relevant COGSA package. See id. at 946.
The so-called "container revolution", however,
"added a new dimension to the problem." Mitsui, 636 F.2d at 816. See generally
Schmeltzer & Peavy, Prospects and Problems of the Container Revolution,
1 J.Mar.L. & Com. 203 (1970). Shippers, carriers and industry commentators
"speculated at the time whether the courts would adopt the analysis of
Standard Electrica or fashion a new rule to apply to containers." Note,
The Shipping Container as a COGSA Package: The Functional Economics Test
is Abandoned, 6 Mar.Law. 336, 340 n. 16 (1981) (collecting citations).
Our decision in Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d
Cir.1971) (Friendly, C.J.), settled the issue, distinguishing Standard
Electrica and veering away from our pre- container cases because of our
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
Id. at 815 (footnote omitted). Leather's Best
thus stood foursquare for the proposition " 'that a container rarely should
be treated as a package.' " Smythgreyhound v. M/V "Eurygenes", 666 F.2d
746, 748 n. 5 (2d Cir.1981) (quoting Croft & Scully Co. v. M/V Skulptor
Vuchetich, 508 F.Supp. 670, 678 (S.D.Tex.1981), aff'd in relevant part,
664 F.2d 1277 (5th Cir.1982)).
Although other courts subsequently embraced
Leather's Best, see, e.g., Matsushita Elec. Corp. v. S.S. Aegis Spirit,
414 F.Supp. 894, 907 (W.D.Wash.1976), cited with approval in Mitsui, 636
F.2d at 819-20, we began to stray from it, in favor of a so-called "functional
economics test." Whereas Leather's Best held that treating a container
as a COGSA package is inconsistent with congressional intent and therefore
strongly disfavored, see Leather's Best, 451 F.2d at 815; accord Mitsui,
636 F.2d at 820-21, the functional economics approach ignored congressional
intent in favor of a "law and economics" analysis. See, e.g., Royal Typewriter
Co. v. M/V Kulmerland, 483 F.2d 645, 648-49 (2d Cir.1973) (container is
presumptively the package where the units inside are not suitable for breakbulk
shipment); Cameco, Inc. v. S.S. American Legion, 514 F.2d 1291, 1298-99
The reaction to our functional economics approach
was swift and overwhelmingly negative, as courts and commentators roundly
criticized us for it. See Croft & Scully Co. v. M/V Skulptor Vuchetich,
664 F.2d 1277, 1281 n. 10 (5th Cir.1982) (functional economics test "necessitated
much judicial guessing work, and we are well rid of it"); Allstate Ins.
Co. v. Inversiones Navieras Imparca, C.A., 646 F.2d 169, 172 (5th Cir.
Unit B May 1981) (test "was subject to severe criticism from all corners");
Matsushita, 414 F.Supp. at 906 (rejecting the test "as contrary to the
statute, commercially impracticable and unwise"); DeOrchis, The Container
and the Package Limitation--The Search for Predictability, 5 J.Mar.L. &
Com. 251, 257 (1974); Simon, The Law of Shipping Containers (pt. 1), 5
J.Mar.L. & Com. 507, 522 (1974).
Recognizing that the functional economics
test was "basically inconsistent with the holding of Leather's Best," and
acknowledging the criticism the new approach had drawn, we eventually abandoned
it. See Mitsui, 636 F.2d at 818-21. Judge Friendly, who had earlier written
Leather's Best, also authored the Mitsui decision, and circulated it to
the entire court. Mitsui held that when a bill of lading discloses on its
face what is inside the container, and those contents may reasonably be
considered COGSA packages, then the container is not the COGSA package.
See id.; Smythgreyhound, 666 F.2d at 753. Mitsui settled the law in container
cases for this Circuit and has been steadfastly followed. See, e.g., Binladen
BSB Landscaping v. M.V. "Nedlloyd Rotterdam", 759 F.2d 1006, 1013 (2d Cir.),
cert. denied, 474 U.S. 902, 106 S.Ct. 229, 88 L.Ed.2d 229 (1985); Smythgreyhound,
666 F.2d at 753. Mitsui and its progeny, moreover, have been followed by
courts in other circuits; see 2A E. Flynn & G. Raduazzo, Benedict on
Admiralty § 167, at 16-34 (7th ed. 1991) ("the Mitsui- Binladen approach
seems to be gaining favor in the rest of the country"); see, e.g., Hayes-Leger
Assocs., Inc. v. M/V Oriental Knight, 765 F.2d 1076, 1080 (11th Cir.1985);
Allstate Ins., 646 F.2d at 172; International Adjusters, Inc. v. Korean
Wonis-Son, 682 F.Supp. 383, 385-86 (N.D.Ill.1988); and it has been praised
by courts and commentators. See, e.g., Allstate Ins., 646 F.2d at 172 &
n. 1 ("we believe that the rule developed in Mitsui and Leather's Best
is the best judicial solution, in the absence of a legislative solution");
2A E. Flynn & G. Raduazzo, Benedict on Admiralty § 167, at 16-34
(7th ed. 1991) ("[a]mong other benefits, the Mitsui-Binladen approach is
consistent with the position of the international community"); Note, The
Shipping Container as a COGSA Package: The Functional Economics Test is
Abandoned, 6 Mar.Law. 336, 345 (1981) ("In terms of predictability and
judicial economy, the decision in Mitsui is a realistic approach in an
area in desperate need of legislative reform.").
Although Mitsui was concerned with containers,
a district court later extended it to pallets. See Allied Int'l Am. Eagle
Trading Corp. v. S.S. "Yang Ming", 519 F.Supp. 187, 190 (S.D.N.Y.1981),
rev'd, 672 F.2d 1055 (2d Cir.1982). We reversed, holding that containers
and pallets are quite different and that "Standard Electrica ... is still
the law with regard to pallets." Yang Ming, 672 F.2d at 1061. In so doing,
we methodically documented why our decisions in Standard Electrica and
Leather's Best required distinct analyses for container and non-container
cases. See id. at 1058-61. We explained:
[T]he container cases involve factors not
found in pallet cases. Because of their size and their function in the
shipping industry, containers are ordinarily not considered "packages."
... In Mitsui ... as in other container cases,
the courts must look askance at an agreement which purports to define a
container as a "package" because the results of such a limitation can be
Id. at 1061, 1062.
We thus rejected any notion that container
and non-container cases were interchangeable; they were then and remain
now separate lines of authority. They had been uniformly so construed until
the present case. See, e.g., St. Paul Fire & Marine Ins. Co. v. Sea-Land
Serv., Inc., 735 F.Supp. 129, 133 (S.D.N.Y.1990) ("containers present different
considerations than pallets"); E. Flynn & G. Raduazzo, Benedict on
Admiralty § 167, at 16-28 (7th ed. 1991) ("These standards [for determining
the relevant COGSA package] vary according to whether or not the cargo
is shipped in a container, and the discussion here will therefore treat
non-containerized and containerized shipments separately.").
We now turn to Monica II's application of
our Seguros decision. The dispute in Seguros was whether each bundle of
15 tin ingots, or each individual ingot, constituted the relevant COGSA
package. See Seguros "Illimani" S.A. v. M/V Popi P, 929 F.2d 89, 92 (2d
Cir.1991). We therefore adopted the following test to settle such controversies:
The number appearing under the heading "NO.
OF PKGS." is our starting point for determining the number of packages
for purposes of the COGSA per-package limitation, and unless the significance
of that number is plainly contradicted by contrary evidence of the parties'
intent, or unless the number refers to items that cannot qualify as "packages,"
it is also the ending point of our inquiry. "Package" is a term of art
in the ocean shipping business, and parties to bills of lading should expect
to be held to the number that appears under a column whose heading so unmistakably
refers to the number of packages.
Seguros, 929 F.2d at 94. [FN2] As between
bales, boxes, bundles, cartons, cases, crates and other COGSA packages,
the Seguros rule is as sensible as it is straightforward. But all "packages"
were not created equal, as our container cases make plain. Containers raise
unique issues which we have addressed in a distinct line of case law.
FN2. Compare Smythgreyhound, 666 F.2d at 748
n. 4 & 751 ("on their face the bills of lading reflect the lack of
agreement, insofar as they refer to both 'containers' and 'cartons' ")
and Matsushita, 414 F.Supp. at 906 (no mutual understanding with respect
to what constitutes COGSA package where carrier and shipper had no direct
or indirect dealings). Other container cases have accorded little or no
weight to the number in the "number of packages" column. See, e.g., Binladen,
759 F.2d at 1009 & 1016 n. 11; Leather's Best, 451 F.2d at 804.
 In light of our significant container
jurisprudence, the Seguros rule is inapposite in the container context.
In Seguros, the parties disputed whether the ingots or the bundles containing
the ingots should be considered the relevant COGSA packages. No one even
questioned the district court's holding that "[i]t is clear that the container
is not the appropriate 'package' in this case." Seguros "Illimani" S.A.
v. M/V Popi P, 735 F.Supp. 108, 111 (S.D.N.Y.1990), aff'd, 929 F.2d 89
(2d Cir.1991). Viewed in context, then, Seguros simply does not purport
to apply when a container is alleged to be the relevant COGSA package.
Indeed, that Seguros would, in dictum, overrule sub silentio a long line
of Second Circuit precedent is inconceivable. Notwithstanding the insertion
in the number-of-packages column(s) of the bill of lading of a number reflecting
the number of containers, where the bill of lading discloses on its face
what is inside the container(s) and those contents may reasonably be considered
COGSA packages, the latter, not the container(s), are the COGSA packages.
The district court's holding to the contrary in Monica II is erroneous.
Parties' Intent and Bill of Lading
We next consider the carriers' argument that
the bill of lading manifests the parties' agreement that the container
is the relevant COGSA package.
In non-container cases we have generally deferred
to the parties' intent, as manifested by their bill of lading, in determining
what unit is the relevant COGSA package. See, e.g., Seguros, 929 F.2d at
95; Standard Electrica, 375 F.2d at 946. Such deference to the parties'
wishes permits commercial flexibility without offending the statute.
 COGSA, however, requires that we view
container cases through a different prism. Thus, in container cases we
must " 'take a critical look' " at clauses purporting to define the container
as the COGSA package, Smythgreyhound, 666 F.2d at 750 (quoting Mitsui,
636 F.2d at 815). Accordingly, we have consistently cast a jaundiced eye
upon language purporting to embody such an agreement.
The reason for this skepticism is that such
agreements run against the grain of COGSA. See id.; Binladen, 759 F.2d
at 1012-13 ("classification of [the container] as a 'package' would violate
the purpose of § 4(5) by permitting the carrier to limit its liability
unduly"); Yang Ming, 672 F.2d at 1062 ("the courts must look askance at
an agreement which purports to define a container as a 'package' "); Mitsui,
636 F.2d at 817 (Leather's Best "acknowledg[ed] that treating the containers
as packages ... was precluded by the underlying purpose of [COGSA] §
4(5)"). Thus, "our repeatedly-expressed reluctance for sound reasons to
treat a container as a package", Binladen, 759 F.2d at 1015, compels us
to scrutinize the carriers' claim that they agreed with Monica to treat
the container as the COGSA package.
 The bill of lading in this case discloses
on its face that 76 bales of cloth were stowed in the container. Even though
that disclosure triggers Mitsui's presumption that the container is not
the COGSA package, see Mitsui, 636 F.2d at 821; see also Smythgreyhound,
666 F.2d at 752 ("[Mitsui ] adopted a general rule that where the bill
of lading discloses the contents of the container, then the container is
not the COGSA package.") (brackets in original), the carriers maintain
that the bill of lading nevertheless discloses an agreement with Monica
that the single container was the relevant package.
They emphasize two clauses appearing on the
reverse of the carriers' standard bill of lading forms. [FN3] Clause 2
of the bill of lading provides, in relevant part:
FN3. The district court was generous in its
characterization of the typeface on the reverse of the bill of lading as
"miniscule [sic]." Monica I, 731 F.Supp. at 126. Whereas standard typeface
(like the body of this opinion) has six lines per inch, the carriers' boilerplate
has sixteen lines per inch.
The word "package" shall include each container
where the container is stuffed and sealed by the Merchant or on his behalf,
although the Shipper may have furnished in the Particulars herein the
contents of such sealed container. (See Clause 11).
Clause 11 states:
Neither the Carrier nor the vessel 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 U.S. $500 per package....
Where container(s) is stuffed by Shipper or on his behalf, and the container
is sealed, the Carrier's liability will be limited to U.S. $500 with respect
to the contents of each container, except when the Shipper declares value
on the face hereof (Box 26) and pays additional charges on such declared
value (Box 23). The freight charged on sealed containers when no higher
valuation is declared by the Shipper is based on a value of U.S. $500 per
The carriers maintain that these clauses articulate
an agreement between them and Monica to treat the container as the package.
The carriers' argument is premised on dicta
in our container cases suggesting that parties to a bill of lading have
the right to agree to treat a container as the relevant COGSA package.
For example, in Smythgreyhound, we remarked in a footnote that parties
may agree between themselves that the container will be the COGSA "package,"
especially in cases where COGSA does not apply ex proprio vigore.... [W]e
hold today that in the absence of clear and unambiguous language indicating
agreement on the definition of "package," then we will conclusively presume
that the container is not the package where the bill of lading discloses
the container's contents.
Smythgreyhound, 666 F.2d at 753 n. 20 (emphasis
in original). Thus, the otherwise "clear rule that where the contents of
the container are disclosed in the bill of lading then the container is
not the COGSA package", id. at 753, seemingly has an exception: we will
treat the container as the "package" if the bill of lading discloses that
the parties have so agreed in terms that are explicit and unequivocal.
This supposed exception to the Mitsui rule,
however, is more apparent than real. No appellate precedent has been found
applying this exception to a bill of lading like the one before us now.
And for good reason: our container cases recognize that when a bill of
lading refers to both containers and other units susceptible of being COGSA
packages, it is inherently ambiguous. In Smythgreyhound, we candidly admitted
"that no shipper ever actually intends that its recovery will be limited
to $500 per container, or that any carrier, in the absence of an express
agreement, intends that the recovery should exceed $500 per container."
Smythgreyhound, 666 F.2d at 748 n. 4; see also id. at 751 ("on their face
the bills of lading reflect the lack of agreement, insofar as they refer
to both 'containers' and 'cartons' "); Matsushita, 414 F.Supp. at 906 ("it
is clear that there was not and, realistically, could not have been any
mutual understanding between [the shipper and carrier] with respect to
the COGSA package"). Mitsui and its progeny resolve this ambiguity against
the carriers. See Mitsui, 636 F.2d at 822-23.
It is not without significance that the two
boilerplate clauses upon which the carriers rely have consistently failed
to persuade us in the past that the container is intended to be the package.
Clause 11, for example, is essentially the same one we ignored in Leather's
Best, even though in Leather's Best the clause appeared on the front of
the bill of lading in capital letters:
SHIPPER HEREBY AGREES THAT CARRIER'S LIABILITY
IS LIMITED TO $500 WITH RESPECT TO THE ENTIRE CONTENTS OF EACH CONTAINER
EXCEPT WHEN SHIPPER DECLARES A HIGHER VALUATION AND SHALL HAVE PAID ADDITIONAL
FREIGHT ON SUCH DECLARED VALUATION PURSUANT TO APPROPRIATE RULE IN THE
CONTINENTAL NORTH ATLANTIC WESTBOUND FREIGHT CONFERENCE TARIFF.
Leather's Best, 451 F.2d at 804. Compare Monica
I, 731 F.Supp. at 126 (similar clause "in miniscule [sic] type face" on
reverse of bill of lading).
Similarly, Clause 2 is virtually indistinguishable
from one rejected in Matsushita which provided:
where the cargo has been either packed into
container(s) or unitized into similar article(s) of transport by or on
behalf of the Merchant, it is expressly agreed that the number of such
container(s) or similar article(s) of transport shown on the face hereof
shall be considered as the number of the package(s) or unit(s) for the
purpose of the application of the limitation of liability provided for
Matsushita, 414 F.Supp. at 899; [FN4] see
also St. Paul Fire & Marine Ins., 735 F.Supp. at 132 ("Allowing the
carrier ... to insert an essentially unbargained-for definition of 'package'
in the bill of lading would effectively eliminate the protection COGSA
was meant to afford shippers."); Monica I, 731 F.Supp. at 127 (Mitsui and
its progeny "control[ ] despite the language of clause 11").
FN4. Judge Friendly praised Matsushita and
adopted its reasoning in Mitsui. See 636 F.2d at 819-21 (quoting Judge
Beeks' "outstanding" Matsushita opinion); see also Smythgreyhound, 666
F.2d at 750 n. 11 (quoting Matsushita and repeating Mitsui 's reference
to Judge Beeks as " 'an experienced admiralty lawyer before his appointment
to the bench' ").
Because the bill of lading in this case is
ambiguous on its face and Clauses 2 and 11 are unbargained-for boilerplate,
we cannot say that Monica and the carriers unequivocally agreed to treat
the container as the COGSA package. Thus, the exception to Mitsui 's rule
is not applicable; and the 76 bales, not the container, are the relevant
units for determining the extent of the carriers' liability under the statute.
This conclusion is consistent with our longstanding
recognition of what every shipper knows: that "bills of lading are contracts
of adhesion ambiguities in which must be resolved against the carrier...."
Mitsui, 636 F.2d at 822-23. Clauses 2 and 11, like others printed on the
back of a form bill of lading, "carr[y] little weight toward establishing
intent, being [ ] unilateral, self- serving declaration[s] by the carrier
which w[ere] not negotiated by the parties and could scarcely be discerned
by the unaided eye in the maze of microscopic and virtually illegible provisions
on the back[ ] of the bill[ ] of lading." Matsushita, 414 F.Supp. at 906
n. 52; see also St. Paul Fire & Marine Ins. Co. v. Sea-Land Serv.,
Inc., 735 F.Supp. 129, 132 & n. 4 (S.D.N.Y.1990).
Seguros provides a bright-line rule in non-container
cases that, "the more consistently it is followed, the more it should minimize
disputes." Seguros, 929 F.2d at 94. Similarly, Mitsui and its progeny continue
to provide a simple rule in container cases, a rule that is easily administered
by the courts and readily amenable to ex ante application by contracting
parties. Together, these rules foster predictability in this nettlesome
area of the law. Applied faithfully and consistently, they should assist
carriers, shippers and the courts to "avoid the pains of litigation." Standard
Electrica, 375 F.2d at 945.
Monica I correctly construed and applied our
container jurisprudence; Monica II did not. Accordingly, the judgment of
the district court in Monica II is reversed.