Atalanta Corp (the plaintiff) entered into a sale contract with Alimentias EMC (Alimentias) for the purchase of cheese. Alimentias instructed Desposito Aduranero y Logistico del sur Europa (DALSE) to fill the order from its inventory. Alimentias then booked the transportation of the cargo with Mediterranean Shipping Co SA (the defendant) from Spain to the United States. The sea waybill required the defendant to maintain the cargo's temperature at '2 degrees Celsius (+/- 2 degrees)'. Autransa, a trucking company, delivered a container to DALSE for it to be stuffed with the cargo. Autransa then departed from DALSE's facility with the stuffed container and transported it to the APM Terminal in Algeciras, Spain (the terminal).

The plaintiff alleged that the cargo was damaged from exposure to excessively high temperatures before it was loaded onto the vessel for transportation to the United States. The plaintiff brought an action against the defendant and claimed for damages sustained to the cargo. Both parties cross-moved for summary judgment.

The plaintiff moved for summary judgment on the ground that it had established a prima facie case under COGSA/the Hague Rules. The plaintiff argued that delivery occurred when Autransa left DALSE with the stuffed container because Autransa was an agent of the defendant. On the contrary, the defendant argued that delivery occurred when the cargo was delivered to the terminal because Autransa was not its agent. In addition, the defendant argued that it could not be liable under COGSA/the Hague Rules for the truck segment of the shipment because the parties had a port-to-port sea waybill, which would relieve the defendant of any liability for occurrences unrelated to the ocean carriage.

Defendant moved for summary judgment on the ground that the sea waybill absolved the defendant of liability, regardless of the plaintiff's ability to establish a prima facie case under COGSA/the Hague Rules. The defendant argued that it was not liable because neither the container nor the cargo was pre-cooled prior to stuffing. In addition, the defendant argued that according to ss 11.2.c and 12.1 of the sea waybill, it was not liable because the refrigeration and temperature controls were improperly set when the container was delivered to the terminal.

Held: Motions for summary judgment denied.

Although the sea waybill provided for port-to-port carriage, the parties contracted to apply COGSA/the Hague Rules during the period before delivery and after discharge. Under COGSA/the Hague Rules, the plaintiff bears 'the initial burden of proving both delivery of goods to the carrier in good condition, and outrun by the carrier in damaged condition'. Once the plaintiff has established a prima facie case, the burden shifts to the defendant to show that one of the statutory (COGSA/the Hague Rules) exceptions to liability exists. The Court will grant the motion for summary judgment if the applicant shows that there is no genuine dispute as to any material fact and the applicant is entitled to judgment as a matter of law.

The Court explained that, for the purposes of analysing the plaintiff’s prima facie case under COGSA/the Hague Rules, if Autransa was an agent of the defendant, then the cargo was delivered to the defendant at the time Autransa picked up the stuffed container from DALSE. If not, the cargo was delivered to the defendant when it reached the terminal. After reviewing the evidence, the Court found that disputes existed as to when the cargo was delivered to the defendant and whether the cargo was delivered in good condition.

In addition, the Court rejected the arguments in support of the defendant's motion for summary judgment. The Court found that even construing all facts in favour of the defendant, a genuine dispute of material fact existed as to whether the cargo and container were properly pre-cooled. In addition, ss 11.2.c and 12.1 of the sea waybill were ambiguous as to whether the defendant could be exempted from liability. The Court interpreted the ambiguities against the defendant because the sea waybill was considered to be a contract of adhesion. Thus, the Court found that ss 11.2.c and 12.1 of the sea waybill did not relieve the defendant's liability.