“Hijacking” clause in bill of lading exculpates carrier
September, 2007
By
Marilyn Raia
Great American Ins. Co. of New York v. A/P Moller-Maersk, etc.
2007 AMC 1326 (S.D.N.Y. 2007)
Maersk contracted with Karim International USA, Great Amercian's subrogor, to transport a containerized shipment of yarn from Burlington, N.C. to Guatemala City, Guatemala. Maersk issued a bill of lading that stated the "place of delivery" to be Guatemala City. The bill of lading also contained a clause that relieved Maersk from losses due to hijacking.
The shipment was transported by land from Burlington to Port Everglades, FL. At Port Everglades, it was loaded aboard a vessel and carried to Santo Tomas de Castilla, Guatemala. At Santo Tomas de Castilla, the containerized shipment was tendered to a trucker for inland carriage to Guatemala City. During the trip from Santo Tomas de Castilla to Guatemala City, the shipment was hijacked. It was never recovered.
Great American paid Karim for the loss and filed a subrogation action against Maersk. Great American and Maersk filed cross motions for summary judgment.
Great American argued that the "hijacking clause in Maersk's bill of lading violates the Harter Act, 46 USC app § 190 which prohibits carriers from inserting clauses in their bills of lading that relieve them from liability, and that the Harter Act governs until "proper delivery has been made". Therefore, Great American argued, because the shipment was hijacked before it reached Guatemala City, the Harter Act still applied, rendering the hijacking clause void.
The District Court rejected Great American's argument holding that "proper delivery" under the
Harter Act does not mean delivery to the ultimate consignee at the end of the transportation. Rather, it means delivery to the inland carrier. The Court declined to extend the reach of the Harter Act, a maritime statute, to an inland point of delivery. Summary judgment was entered in favor of Maersk.