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SEA-LAND SERV. v. J & W IMPORT/EXPORT

September 5, 1997

SEA-LAND SERVICE, INC., Plaintiff,
v.
J & W IMPORT/EXPORT, INC., Defendant.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 J & W Import/Export, Inc. ("J & W") hired Sea-Land Services, Inc. ("Sea-Land") to ship containers of garlic for J & W from China to the United States and then to Puerto Rico. J & W claims that Sea-Land improperly stored the garlic and fraudulently misrepresented its ability and willingness to store the garlic properly. J & W filed its complaint in the Superior Court of New Jersey. Sea-Land removed the case to this Court based on the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1300, et seq. J & W demands that the case be tried before a jury. The question presented by J & W's demand is whether J & W lost its right to a jury trial when Sea-Land removed the case to this Court.

 BACKGROUND

 On April 22, 1996, J & W filed a Complaint and Jury Demand against Sea-Land in the Superior Court of New Jersey, Law Division, Union County. J & W is a corporation existing and organized under the laws of New Jersey and has its principal place of business in Roselle Park, New Jersey. Sea-Land is a corporation existing and organized under the laws of Delaware with its principal place of business in Dallas, Texas. J & W and Sea-Land entered into an agreement whereby Sea-Land would ship fresh containers of garlic from China to the United States and then to Puerto Rico.

 The Complaint contains three counts. Counts I and II allege that Sea-Land breached the contract by improperly shipping the containers of garlic. Count III alleges that Sea-Land fraudulently misrepresented its ability and willingness to transport the garlic in ventilated containers. J & W claims that it suffered $ 405,000 in damages because of Sea-Land's actions.

 On or about April 23, 1996, Sea-Land filed a Complaint in admiralty in the United States District Court for the District of New Jersey pursuant to Rule 9(h) of the Federal Rules of Civil Procedure. Sea-Land claimed that J & W breached their contract by failing to pay the balance of $ 27,907.50 for services rendered.

 On or about May 17, 1997, this Court granted Sea-Land's petition to remove J & W's case from the Superior Court of New Jersey to this Court. Following the removal of the state action, the cases were consolidated.

 On July 24, 1997, Magistrate Judge Pisano signed a Final-Pre Trial Stipulation and Order directing the parties to submit briefs on whether the case should be tried before a jury.

 DISCUSSION

 1. Federal Right to Jury Trial

 The Seventh Amendment to the United States Constitution preserves the right to a jury trial in all suits at common law. This right is at the foundation of our judicial system and the Supreme Court has long endorsed it. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959).

 2. Right to Jury Trial in ...


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