also could sign or issue bills of lading on behalf of Merchant Marine. In this regard, the master stated only that he did not recall receiving any authorization from merchant Marine. But the Charter Party between Vulcan and Merchant Marine clearly authorized Merchant Marine, at its own option, to issue bills of lading, and also placed the master at the control of the time charterer. It is up to the factfinder to weigh these facts against Mr. Kefalas' "recollection". It is not a job for the court at this point in the litigation.
Merchant Marine then refers to the affidavit of Captain Yong Ho Shin, allegedly the sole Merchant Marine representative authorized to issue bills of lading on the east coast of the United States for scrap cargos. In his affidavit, Captain Shin states:
The bill of lading . . . was not signed for Hyundai Merchant Marine Co., Ltd. or issued on its behalf . . . . [I] did not give any authority to sign or issue bills of lading for or on behalf of Hyundai Merchant Marine Co., Ltd. for the cargo or scrap loaded on the M/V Vulca in November of 1989 to Overseas Shipping Inc., the Master of the M/V/Vulca, or anyone else.
If this statement was uncontradicted anywhere in the record, it would be entitled to great weight. However, the record also contains the deposition of S.H. Hang, assistant general manager of Merchant Marine (who was in charge of and familiar with the charters with the Vulca), which may be read to contradict Captain Shin's certification. In his deposition, Mr. Kang states that he sent a telex to Overseas authorizing Overseas to act on behalf of the "vessel charter members", which included "Hyundai [Merchant Marine], owners VULCA . . . ." Further, Mr. Hang notes that Overseas sent Merchant Marine a bill for dealings related to the shipment of steel scrap from Jersey City. While Mr. Hang also testified that Merchant Marine did not authorize Overseas Shipping to sign the bill of lading issued for this cargo, the record contains sufficient seemingly contradictory statements to allow the matter to proceed to the trial stage.
Therefore, I decline to find as a matter of law that Merchant Marine did not issue the bill of lading.
B. The Practical Test
Even if Hyundai is unable to establish that Merchant Marine authorized the bill of lading, it may establish that Merchant Marine is a COGSA carrier by showing that Merchant Marine (1) was involved in the transportation of the relevant cargo; and (2) engaged in actions that wound up causing the loss of cargo. Hyundai clearly passes this test.
As noted above, in most shipping contracts, the relationships between the parties are unclear and the relevant agreements are negotiated quickly and formalistically. If the plaintiff established that the time charterer is somehow related to the voyage, it makes more sense for a court to deny a motion for summary judgment, allow the matter to proceed to trial, and apportion liability at the damages stage. This policy, and the policy of COGSA to provide shippers a broad array of defendants to sue, applies in this case. The record displays the existence of a tangled web of relationships between the relevant parties. And by citing the testimony of Mr. Hang, by establishing that Hyundai was the time charterer of the Vulca, and by showing a voyage charter relationship between Clarendon (who ultimately sold the cargo and negotiated the bill of lading to Hyundai) and Merchant Marine for the sole purpose of carrying Clarendon's cargo, Hyundai has shown that Merchant Marine was involved in the instant voyage. Merchant Marine claims it was only a middle man. This may be true, but that is a question more appropriately resolved by allowing the matter to go to trial.
Hyundai seeks to establish Merchant Marine's ultimate liability by alleging that Merchant Marine contributed to the loss of cargo. In this respect, Hyundai asserts in vague language that Merchant Marine improperly loaded the scrap cargo into an obviously unseaworthy vessel while the vessel was in a grounded position. Plaintiff also asserts that Merchant Marine directed the Vulca to sail from the port without any inspection of the vessel's hull. Merchant Marine's acts, Hyundai alleges, caused the ship to be unprepared for bad weather, and therefore caused the ship to sink, resulting in the loss of cargo.
Merchant Marine correctly points out that Hyundai's complaint neglects to state these alleged facts that could constitute imposition of liability upon Merchant Marine. Hyundai responded at oral argument on August 7, 1992 that it made this allegation only in the face of Merchant Marine's denials that it issued the bill of lading. This does not excuse a failure to comply with the pleading requirements set forth in Fed.R.Civ.P. 8. Hyundai, then, has fifteen days from the date of the order accompanying this opinion, to move to amend its complaint to state the cause of action alleged in its briefs in opposition to Merchant Marine's motion.
For the foregoing reasons, Merchant Marine's motion for summary judgment is denied.