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MITSUI & CO., LTD. v. AMERICAN EXPORT LINES

Nos. 8, 11, Dockets 80-7095/7085.

636 F.2d 807 (1981)

MITSUI & CO., LTD. and Ataka & Co., Ltd., Plaintiffs-Appellants-Cross-Appellees, v. AMERICAN EXPORT LINES, INC., Defendant-Appellee-Cross-Appellant. ARMSTRONG CORK CANADA, LTD., and Armstrong Cork Company, Plaintiffs-Appellees, v. AMERICAN EXPORT LINES, INC., Defendant-Appellant.

United States Court of Appeals, Second Circuit.

Decided January 16, 1981.

Attorney(s) appearing for the Case

Robert J. Ryniker, New York City (Hill, Rivkins, Carey, Loesberg, O'Brien & Mulroy, New York City, Martin B. Mulroy, and Thomas D. Toy, New York City, of counsel), for Armstrong Cork Canada, Ltd. and Armstrong Cork Company.

John T. Kochendorfer, New York City, N.Y. (Bigham, Englar, Jones & Houston, New York City), for Mitsui & Co., Ltd. and Ataka & Co., Ltd.

Brian D. Starer, New York City (Haight, Gardner, Poor & Havens, New York City, M.E. DeOrchis, New York City, of counsel), for American Export Lines, Inc.

Before FEINBERG, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.

FRIENDLY, Circuit Judge:

These appeals and a cross-appeal from a judgment of the District Court for the Southern District of New York awarding damages for cargo loss and damage again confront us with the application to containers furnished by the carrier of § 4(5) of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1304(5). This provides in pertinent part:

Neither the carrier nor the ship shall in any event be or become liable for any loss...

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