RECENT DEVELOPMENTS IN ADMIRALTY AND MARITLME LAW

• Published in: Tort trial & insurance practice law journal Vol. 50; no. 2; p. 155
• Main Authors: Martyn, Jessica Link, Deans, Alistair Christian, DiCicco, Mark, Gayer, Sarah Yantakosol, Greenbaum, Aaron B, Hamilton, Christopher F, Henderson, Marissa M, Mau, Donald A, Walker, Christine M
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association 01.01.2015
• Subjects: Attorneys; Citizenship; Federal court decisions; Interstate commerce; Interstate Commerce Act-US; Jurisdiction; Jurisprudence; Maritime law; Offshore; State court decisions; United States > US
• ISSN: 1543-3234; 1943-118X

Once the carrier presents prima facie evidence that an opportunity existed-something that can be established from the language of the bill of lading-the burden shifts to the shipper to demonstrate that a fair opportunity did not exist.166 The court then analyzed the language in the bill of lading at issue and found it to unambiguously notify the shipper that the COGSA package limit applied.167 The shipper countered with other Second Circuit precedent requiring the carrier to provide a space on the bill of lading to declare another value, which the carrier failed to do.168 While the court agreed that it is a best practice to provide the shipper with a space in a bill of lading, the court determined that the impact of a failure to provide a space is not an issue for summary judgment, but rather a question for a jury.169 In contrast to the conclusion in OOO "Garant-S, " in Jean-Baptiste v. New York Terminal 1, Inc., the court found that the carrier did not satisfy the fair opportunity requirement after it produced two bills of lading, neither of which unambiguously provided the shipper with a chance to declare a different value.170 In reaching its conclusion, the court looked at the standards in circuits that apply the fair opportunity doctrine to COGSA issues.171 Curiously, however, Jean-Baptiste was decided in a Third Circuit district court, which, as explained above, rejects the application of the fair opportunity doctrine within the COGSA framework. [...]the Third Circuit's departure from the other federal circuits' application of the fair opportunity doctrine to COGSA cases has resulted in not only a circuit split in what is supposed to be a uniform body of admiralty law, but also either confusion or dissent within its own circuit as to the application of the fair opportunity doctrine.