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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ALLIED SIGNAL TECHNICAL SERVICES CORP. v. M/V DAGMAR MAERSK, et. al. : : : : : :

Civil Action WMN-00-3730

MEMORANDUM Before the Court are Plaintiff's Motion for Summary Judgment (Paper No. 29), Defendant Maersk's Motion for Summary Judgment (Paper No. 27), and Defendant Connor's Motion for Summary Judgment (Paper No. 28). The motions are ripe for decision.

Upon a review of the pleadings and applicable case law, this Court determines that no hearing is necessary (Local Rule 105.6) and that Plaintiff's motion will be denied, and that Defendants' motions will be granted. I. BACKGROUND This case involves a claim for damage to a space telescope owned by Plaintiff, Allied Signal Technical Services Corp., which was shipped by Defendants, J.S. Connor, Inc. (Connor) and Maersk, Inc., from Baltimore, Maryland to Salerno, Italy. Plaintiff,

through project manager Mike Selden, contacted Defendant Connor for the inland U.S. and U.S. port to Italian port portion of the shipment. Because Defendant Connor did not own any ocean

carriers, it acted as a non-vessel operating common carrier

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(NVOCC) and contacted Defendant Maersk to perform the actual ocean shipment. Plaintiff then arranged for Pietro, Balena &

Figli, S.L.L. (Balena) in Italy to clear the cargo at Selerno through Italian customs and have a truck available to transport the telescope to its final destination in Italy. On the day of the shipment, the telescope was packaged in wood crates, trucked to Baltimore, and placed on a flatrack container and secured with three metal bands. then loaded on a barge in Baltimore. The flatrack was

A surveyor retained by

Plaintiff's insurance company, Bernie O'Connor, observed the loading and stated that it was without incident. Additionally,

Defendant Connor issued a clean bill of lading stating that the flatrack with the two crates had been received "in apparent good order and condition." Defendant Maersk also issued a clean bill

of lading, attesting to the receipt of the flatrack and two crates in good order and condition. The cargo was barged to

Norfolk where it was loaded on the ocean carrier for its shipment to Italy. The ocean carrier stopped at the Italian port of Gioia Tauro, south of Salerno. When Selden learned of the planned

stop, he arranged for a surveyor from Holme & Company to be present at the port. The flatrack and two crates were discharged

from the ship in Gioia Tauro by a container crane and then transported shipside by a portable container crane to a place on

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the pier.

The flatrack and two crates were stored in the

container yard for eight days. The flatrack and crates were then loaded on to another ship and transported to Salerno. The cargo was again discharged by a

container crane and transported to a place of rest on the pier. Another surveyor from Holme & Company was present to observe the flatrack. The surveyor took pictures of the cargo, and the

photographs show that one of the metal bands holding the crate to the flatrack had been replaced with a blue nylon strap, the plastic covering the crate had become torn in several places, and grease was present at several locations on the crate. The cargo

was removed from the flatrack by an overhead crane and placed on an air ride trailer which transported the cargo to Matera. Plaintiff discovered damage to the telescope during its installation in Matera, Italy. Three lever arms with connecting

weights had broken loose from the primary mirror of the space telescope. epoxy. The two parts had been connected using a strong

As a result of the detachment, the accuracy of the

telescope was affected, and Plaintiff estimates $500,000 of direct and indirect damage to the equipment. Plaintiff brought

this action against Defendants to recover for damage to the telescope. Plaintiff now moves for summary judgment as to

liability, arguing that it has established a prima facie case of liability against Defendants, and Defendants have not shown that

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the actual cause of damage was an exception allowed Defendants under the U.S. Carriage of Goods by Sea Act (COGSA). Defendants

move for summary judgment as well, arguing that Plaintiff has failed to establish a prima facie case of liability against Defendants. II. LEGAL STANDARD A moving party is entitled to summary judgment only if it can show that there exists no genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Blue Ridge Ins. Co. v. Puig, 64 F. Supp.2d 514 (D. Md. 1999) (citing, inter alia, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). When both parties file motions for summary judgment, the court applies the same standards of review. Taft Broadcasting

Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir. 1983) ("The court is not permitted to resolve genuine issues of material facts on a motion for summary judgment--even where ... both parties have filed cross motions for summary judgment.")(emphasis omitted), cert. denied, 469 U.S. 1215 (1985). The role of the court is to "rule on each party's motion

on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. and Indem. Co.,

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627 F.Supp. 170, 172 (D. Md. 1985)(quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d

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