USVI Public Records

Document text

1 eel wom IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX: ARMSTRONG FORD, INC., Plaintiff, Vv. FORD MOTOR ‘COMPANY, INC., =. FORD MOTOR COMPANY, EXPORT*‘DIVISION, FORD MOTOR COMPANY, CREDIT COMPANY INC., MOTOR COMPANY, CARIBBEAN, INC., SUMITOMO MARINE & FIRE INS. CO., LTD., AIR MAR SHIPPING, INC., POLAR SHIPPING, INC., & THE MASTER OF THE M.V. POLAR TRANS. Defendants. ay er ee ee ee geet See Sm See eet ee ee See Smee Ste? ee See Set See eee RICHARD D. KEELING, ESQUIRE #6 Company Street Christiansted, St. Croix U.S. Virgin Islands 00820 (809) 773-6641 (Attorney for Plaint&iiff) JOHN F. JAMES, ESQUIRE James & Resnick . #1A King Street Christiansted, St. Groix U.S. Virgin Islands 00820 (809) 773-0402 i (Attorney for Defendants FORD) KENNETH R. LINDQUIST, ESQUIRE P.O. Box 4173 Christiansted, St. Croix U.S. Virgin Islands 00820 (809) 773-2874 {Attorney for SUMITOMO) PETERSEN, Judge MEMORANDUM OPINION September 93 , 1985 KINGSHILL CIVIL NO. 649/1984 ACTION FOR: DAMAGES BREACH OF CONTRACT, CONVERSION, FORD INTERFERENCE WITH ECONOMIC RELATIONS NEGLIGENCE & BARRATRY: FOR RECOVERY OF FINANCE CHARGES, & FOR RECOVERY UNDER POLICY INSURANCE oe ARMSTRONG FORD, INC., v. FORD MOTOR CO., INC., ET. AL. CIVIL NO. 649/1984 ACTION FOR DAMAGES This is an action for damages. This matter comes before this Court after a hearing on a Motion for Summary Judgment by Defendant Ford Motor Company and its subdivisions. s For the reasons set forth below, this motion must be denied. FACTS On Decemb2r 29, 1982, Armstrong Ford placed an order for the shipment of six Ford Lasers from Japan. The Sumitomo Corporation, as representative of Ford Motor Co. (Japan) Ltd., consigned six 1983 Ford Lasers to Ford Motor Co. Caribbean Inc. The contract indicated that the shipment was C.I.F. San Juan. (Bxhibit I-A,I-B). The transhipment section of the bill of ladfng, which would have indicated that the vehicles were to be* shipped from San Juan to St. Croix, was left blank (Exhibit 1~C). On February 9, 1983, Air Mar Shipping consigned six (6) Ford Lasers fron? San Juan, Puerto Rico to Christiansted, St. Croix (Exhibit 1-D). Neither the contract nor the bill of lading contained explicit provisions allocating the risk of loss while the goods were in possession of the carrier nor 1/ were any delivery terms indicated. = The cars were unloaded i/ "FLO.B.", "C.&F.", "F.A.S." are other delivery terms commonly used. l11A V.I.C. §2-319, §2-320 (1965). ARMSTRONG FORD, INC., v. FORD MOTOR CO., INC., ET. AL. CIVIL NO. 649/1984 ACTION FOR DAMAGES in St. Maarten where they were left on a dock and sustained damages. Five of the six vehicles were shipped from St. Maarten to San Juan to St. Croix. The sixth vehicle is currently being held in bond in San Juan. Plaintiff Armstrong Ford has filed suit asserting liability for damages against Ford Motor Co., Ford Motor Co. Caribbean, Inc., Ford Motor Credit Co., Inc., ind Ford Motor Co., Export Division, as sellers, against Sumitomo Insurance Co. as co-defendant Ford's insurer, and against Air Mar Shipping as the freight forwarder. ISSUE This Cour® must decide whether Defendant Ford and its subdivisions cars be held liable for the subsequent damages to the six Ford Lasers. oe 0 DISCUSSION 0 Summary judgment is to be entered in a case only if the pleadings, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P.56(c). See, Macedon v. Macedon, 19 V.I. 434 (1983). I£ the evidence presented in the motion either is subject to conflicting interpretations or might induce reasonable men to differ as to ARMSTRONG FORD, INC., v. FORD MOTOR CO., INC., ET. AL. CIVIL NO. 649/1984 ACTION FOR DAMAGES its significance, summary judgment is improper. Bragen v. Hudson County News, Co., Inc., 278 F.2d 615, 618 (3d Cir. 1960). In its motion for summary judgment, Defendant Ford Motor Co. and its divisions [hereinafter Defendant Ford], by relying on 11A V.I.C.§ 2-320, contend that it has fulfilled all the requirements of a C.I.F. contract. Thus, once the vehicles were loaded onto the carrier in Japan, Plaintiff Armstrong Ford assumed liability for any and all damages. Plaintiff Armstrong Ford, asserts that Air Mar Shipping's agency relationship with Defendant Ford renders Ford liable for any resulting damages. A contrac® containing the phrase "C.I.F." plus a destination requires the seller to deliver goods according to the contract Beeee con on an appropriate carrier and to obtain a bill of lading covering the entire transportation to the named destinatien. L1A V.I.C. §2-320 (1965). The seller completes his performance by (1) loading the goods and obtaining a receipt from the carrier showing either that the freight has been pre-paid or that the seller and buyer have made other arrangements for payment; (2) obtaining insurance; (3) preparing an invoice and procuring any necessary oa ARMSTRONG FORD, INC., v. FORD MOTOR CO., INC., ET. AL. CIVIL NO. 649/1984 ACTION FOR DAMAGES documents; and (4) forwarding and tendering all documents required to perfect the buyer's rights. Id. at 2(b-e). 24 If the seller has complied with all the requirements of a C.I.F. contract, then title and risk of loss @uring shipment transfers to the buyer. Any matter arising thereafter becomes a matter between the buyer and the carrier or the insurers of the goods; however,. the seller is no longer involved in the transaction. Sig M. Glukstad Inc. Vv. Lineas Aereas Paraguayas, 619 F.2d 457, 459 (5th Cir. 1980); Farbwerke Hoeschst A.G. v. M/V "Don Nicky", 589 F.2d 795, 797 (5th Cir. 1979), citing York-Shipley, Inc. v. Atlantic Mutual Insurance Co., 474 F.2d 8 (Sth Cir. 1973). The recorc? and supporting affidavits indicate that Defendant Ford partéally complied with the requirements of a C.I.F. contract by placing the goods into the possession of a oe carrier, obtaining a negotiable bill of lading and insurance, and preparing ane invoice of the goods. l1A V.I.C. §2-320(2) (a), (c)-(d). However, the record does not indicate that the required documents were forwarded and tendered with "commercial promptness”. On the afternoon before the shipment's arrival, Plaintiff Armstrong Ford was notified that the vehicles were cy) Delivery obligations that control a C.I.F. contract are llA §2-503(2), and §2-504 (1965) while risk of loss is determined by 11A 2-509(1) (A) (1965). ARMSTRONG FORD, INC., v. FORD MOTOR CO., INC., ET. AL. CIVIL NO. 649/1984 ACTION FOR DAMAGES on their way. Arguing that the industry custom and the course of dealings between the parties have provided that documents are to be shipped five (5) days in advance, plaintiff asserts that receipt of documents on the day of the vehicles' arrival was not "commercially prompt". Plaintiff notes that upon receiving the documents, representatives of Armstrong Ford had to "go to four or f..ve separate offices" before plaintiff had clearance to return to the dock to obtain possession of the cars. Since the documents were not shipped with "commercial promptness", plaintiff contends that it was unable to gain possession of the cars before the ship left St. Croix. Defendant Ford, on the other hand, contends that the six hours notice received by Plaintiff was sufficient. Comment &1 of 111A V.1I.C.§2-320 indicates the importance of a buyer receiving documents with "commercial o promptness", The buyer needs all of the documents required under a C.I.F. contract, in due form and with necessary endorsements, so that before the goods arrive, he may deal with them by negotiating the documents or may obtain prompt possession of the goods after their arrival. If the goods are lost or damaged in transit, the documents are necessary to enable him promptly to assert his remedy against the carrier or insurer. The seller is therefore obligated to do what ne ARMSTRONG FORD, INC., v. FORD MOTOR CO., INC., ET. AL. CIVIL NO. 649/1984 ACTION FOR DAMAGES is mercantilely reasonable in the circumstances and should make every reasonable exertion to send forward the documents as soon as possible after the shipment. (Emphasis added) Defendant Ford's argument ignores the spirit of 11A V.1.C.§2-320(3) (1965). Documents are to be forwarded as soon as possible after she goods have been shipped so that the buyer, either before the goods' arrival, may negotiate a transfer of the goods, or upon their arrival, promptly assert claims against the carrier. The record is unclear as to what constitutes the industry standard, custom or practice of “commercial promptness". This Court cannot grant summary judgment inasmuch af there are significant issues of material fact as to whether the seller has complied with all the requirements of a C.F. contract. Furthermore, there are separate and distinct claims remaining against tthe various Ford Divisions which are not affected by the outcome of this Court's decision. See Armstrong Ford, Inc. v. Ford Motor Co., Inc. et. al., No. 649/1984 (Terr. Ct. St. C., Feb. 8, 1985) (order affirming jurisdiction). For the reasons set forth above, the motion for summary judgment is denied. yy 7