Opposition Brief — Binladen BSB Landscaping v. M. V. "Nedlloyd Rotterdam."

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: No. 85-261 < ey Se ae

SEP 16 1985

IN THE JOSEPH F. SPANIOL, uR.

Supreme Court of the United tem cLERK

OCTOBER TERM, 1985

>

BINLADEN BSB LANDSCAPING,

Petitioner,

—against—

M.V. “NEDLLOYD ROTTERDAM”, her engines, boilers, etc.,

NEDLLOYD LIJNEN B.V. (NEDLLOYD LINES),

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

—

RESPONDENT’S BRIEF IN OPPOSITION

RICHARD H. SOMMER

Counsel of Record

KIRLIN, CAMPBELL & KEATING

14 Wall Street

New York, New York 10005

(212) 732-5520

Attorneys for Respondent

| BEST AVAILABLE COPY |

J. SCOT PROVAN

ARTHUR E. HOFFMANN, JR.

Of Counsel

QUESTION PRESENTED

The only question fairly presented for review is whether the

Court of Appeals for the Second Circuit correctly held that, in

construing the United States Carriage of Goods by Sea Act, 46

U.S.C. § 1304(5) (West 1975), where the bill of lading contract

entered into between a shipper and an ocean carrier does not

include a shipper-supplied description of an alternative number

of “packages”, lists a marine cargo container as a package and

the contracting parties have not specified that the shipment is

one of “goods not shipped in packages”, the container is

properly considered a “package” in applying the “per pack-

age” limitation of an ocean carrier’s liability contained in the

statute?

STATEMENT REQUIRED BY RULE 28.1

Respondent Nedlloyd Lijnen B.V. (Nedlloyd Lines) is a

wholly owned subsidiary and division of the Royal Nedlloyd

Group N.V. Other divisions of the Royal Nedlloyd Group N.V.

which are affiliates of Respondent Nediloyd Lijnen B.V. are:

Nedlloyd Bulk

Neddrill

Mammoet Transport

Nedlloyd Fleet Services

Damco International Transport

Transavia

Nedlloyd Energy

A list of subsidiaries of the Royal Nedlloyd Group N.V.

which are affiliates of Nedlloyd Lijnen B.V., complete as of

May, 1985, is annexed hereto as Appendix A.

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TABLE OF CONTENTS

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PETITIONER LACKS STANDING TO SEEK

REVIEW OF THE QUESTIONS PRESENTED

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THE DECISION OF THE COURT OF AP-

PEALS IS NOT IN CONFLICT WITH DECI-

SIONS OF THIS COURT OR WITH

DECISIONS OF THE COURTS OF APPEAL

FOR THE FIFTH, NINTH OR ELEVENTH

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THE DECISION OF THE COURT BELOW IS

CORRECT AND IN ACCORD WITH ITS

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THE QUESTION(S) PETITIONER RAISES DO

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TABLE OF AUTHORITIES

Cases: PAGE

Allied Int’! American Eagle Trading Corp. v. S.S.

YANG MING, 672 F.2d 1055 (2d Cir. 1982)......... 9

Allstate Insurance Co. v. Inversiones Navieras Imparca,

©.A., 666 F.ze 169 (Sth Cir. 1961)................. 7, 8,9

eee foe, Bee 0.5. POO CISGZ) .. i cas ce acca, 4

Binladen BSB Landscaping v. M.V. NEDLLOYD ROFT-

TERDAM, 593 F. Supp. 546 (S.D.N.Y. 1984), rev’d

and remanded, 759 F.2d 1006 (2d Cir. 1985)...... 4.3, 5,%

Hartford Fire Insurance Co. v. Pacific Far East Line,

Inc., 491 F.2d 96% (9th Cir.), cert. denied, 419 U.S.

eae G a cs gdhonaccav kk 65000s65%0-0005 8

Hayes-Leger Associates, Inc. v. M/V ORIENTAL

KNIGHT, 765 F.2d 1076 (ilth Cir. 1985) ........... 7,8

Jenkins v. McKeithen, 395 U.S. 411 (1969) ........... 4

Kirchberg v. Feenstra, 450 U.S. 455 (1981) ........... 5

Leather’s Best, Inc. v. S.S. MORMACLYNX, 451 F.2d

EE a ee 6

Mitsui & Co., Ltd. v. American Export Lines, 636 F.2d

ES 6, 7, 8, 9, 10, 11

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249

ee uk kay dh skew ca venveswse 6

Rosenbruch v. American Export Isbrandtsen Lines,

Inc., 543 F.2d 967 (2d Cir.), cert. denied, 429 U.S. 939

NS SAS eT i 10

Simon v. Eastern Kentucky Welfare Rights Organiza-

ee 4

iV

PAGE

Smythgreyhound v. M/V EURYGENES, 666 F.2d 746

y pe |) ere e Te eee ree eee 8, 9, 10, 11

Standard Electrica, S.A. v. Hamburg Sudamerikanische

Dampschifffahrts-Gessellschaft, 375 F.2d 943 (2d

Cir.), cert. denied, 389 U.S. 831 (1967)............. 9

Seanton ¥. Stanton, 421 U.S. 7 (1975)... 2. cece uncnes 4

Watermill Export, Inc. v. M.V. PONCE, 506 F. Supp.

BE Ss We ON na hvac cecede cases siusesueses 10

Statutes, Rules and International Conventions:

(1) Longshoremen’s and Harbor Worker’s Compensa-

tion Act, 33 U.S.C. § 901, (West 1978) .......... 6

(2) United States Carriage of Goods by Sea Act 46

fh fo Bu Fy 68 rrr passim

t) Be BoP omy. (ity | errr 2

(4) 1968 Brussels Protocol to Amend the Interrational

Convention for the Unification of Certain Rules of

Law Relating to BILLS OF LADING ........... 7

ie te Ss Pr errT Tete err eee ere 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-261

—<j—_—_

BINLADEN BSB LANDSCAPING,

Petitioner,

—against—

M.V. “NEDLLOYD ROTTERDAM”, her engines, boilers, etc.,

NEDLLOYD LIJNEN B.V. (NEDLLOYD LINES),

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

—_—<j>—

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Nedlloyd Lijnen B.V. (hereinafter referred to as

“Nedlloyd”) respectfully requests that this Court deny the

Petition for a Writ of Certiorari seeking to review the judgment

and opinion of the United States Court of Appeals for the

Second Circuit.

OPINIONS BELOW

The order of the United States Court of Appeals for the

Second Circuit denying the petition for rehearing with a

suggestion that the action be reheard en banc is reproduced at

Appendix 20A of the Petition. The opinion of the United

2

States Court of Appeals for the Second Circuit reversing the

judgment of the United States District Court for the Southern

District of New York and remanding the case for additional

findings of fact is reproduced at Appendix 1A through 19A of

the Petition. That opinion is officially reported at 759 F.2d

1006 (2d Cir. 1985). The opinion of the United States District

Court for the Southern District of New York is reproduced at

Appendix 21A through 29A of the Petition. That opinion is

officially reported at 593 F. Supp. 546 (S.D.N.Y. 1984).

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

The Petition for a Writ of Certiorari is timely in light of the

order of the United States Court of Appeals for the Second

Circuit, dated May 16, 1985, denying the petition for rehearing

with a suggestion that the action be reheard en banc.

STATEMENT OF THE CASE

Petitioner’s statement is inaccurate and incomplete. How-

ever, only facts bearing on the issue before the Court require

clarification. It is sufficient to note that in June, 1980 Peti-

tioner, Binladen BSB Landscaping (hereinafter referred to as

“Binladen”), as shipper and consignee, and Nedlloyd, as ves-

sel-owning ocean carrier, contracted for the carriage of ten

refrigerated marine cargo containers loaded with live plants

from two ports in the United States to one port in Saudi

Arabia. The contents of two of the containers were damaged

on receipt in Saudi Arabia. As a result, Binladen’s under-

writers commenced this maritime action to recover $80,322.00

for breach of contract.

After a bench trial, the District Court held Nedlloyd liable

for the damage to the live plant cargo and rejected Nedlloyd’s

argument that the $500. per package limitation on an ocean

carrier’s liability provided for in the United States Carriage of

3

Goods by Sea Act, 46 U.S.C. § 1304(5) (West 1975) (herein-

after referred to as “COGSA”),' operated to restrict Nedlloyd’s

liability to $500. per container. Nedlloyd confined its appeal to

the argument that the District Court improperly awarded

damages in excess of those permitted by COGSA. The Court

of Appeals reversed the District Court and remanded the case

for additional findings of fact.

The Court of Appeals, in conformity with well-established

precedent, examined the express contractual agreement be-

tween the parties embodied in the bill of lading to determine

the proper application of the COGSA “per package” limitation

of liability. Recognizing that this case raised an issue which had

been expressly left unresolved in prior decisions, the Court of

Appeals held, establishing a clear rule, that “. . .when the bill

of lading does not clearly indicate an alternative number of

packages, the container must be treated as the COGSA pack-

age if it is listed as a package on the bill of lading and if the

parties have not specified that the shipment is one of ‘goods

not shipped in packages.’ ” 759 F.2d at 1016 (Appendix 16A

through 17A of the Petition).? However, the Court of Appeals

allowed the new rule to apply prospectively only, to bills of

lading prepared after the date of the decision; the rule was not

applied to Petitioner, Binladen. Instead, the Court of Appeals

considered the cargo in question to be “goods not shipped in

packages,” thus limiting Nedlloyd’s liability to $500. “per

customary freight unit”, and remanded to the District Court

for findings of fact regarding the customary freight unit for the

shipment. To date there have been no further proceedings in

the District Court and this issue remains unresolved.

l Section 1304(5) of the United States Carriage of Goods by Sea Act,

46 U.S.C. § 1304(5) (West 1975) is reproduced at Appendix 36A

through 37A of the Petition.

2 The shipper, Binladen, supplied the description of the container’s

contents appearing on the bill of lading as is customarily the case.

REASONS FOR DENYING THE

WRIT OF CERTIORARI

Respondent Nedlloyd respectfully submits that the “special

and important reasons” which justify the granting of a writ of

certiorari (Sup. Ct. R. 17) are not present in this case.

PETITIONER LACKS STANDING TO SEEK REVIEW

OF THE QUESTIONS PRESENTED IN THE PETITION

Petitioner essentially seeks to have this Court re-examine the

rule created by the Court of Appeals that a container will be

considered a COGSA “package” if it is identified on the bill of

lading as a package, the bill of lading does not clearly indicate

an alternative number of packages and the parties have not

agreed that the shipment is comprised of “goods not shipped in

packages.” However, the Court of Appeals decided that the

rule would have prospective application only and did not

utilize it in this case. Therefore, Petitioner has not been

affected by the rule it seeks to have this Court review.

A party seeking relief must have a personal stake in the

outcome of an issue to assure the “concrete adverseness”

which hones presentation of a question. Jenkins v. McKeithen,

395 U.S. 411, 423 (1969) (quoting Baker v. Carr, 369 U.S. 186,

204 (1962)); see, Stanton v. Stanton, 421 U.S. 7, 12 (1975).

Thus if the litigant is unable to show that a favorable decision

will accrue to its benefit, standing to raise the issue is lacking.

See, Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26, 38 (1976). Because Petitioner seeks review of a

rule which was given prospective vitality only, it would not

reap the benefits of a favorable decision in this Court and

consequently lacks standing to challenge the Court of Appeals

decision on this ground.’

3 Petitioner’s argument that the Court of Appeals applied the prospec-

tive rule of this case to Binladen reflects a misunderstanding of the

This Court considered principles of standing in a compara-

ble context in Kirchberg v. Feenstra, 450 U.S. 455 (1981).

There appellant contended that the Court of Appeals decision

appealed from was ambiguous but was intended to create a

rule with prospective application only. Appellant urged this

Court to adopt this interpretation of the decision, leaving

intact a favorable District Court decision. In rejecting this

argument and finding that the Court of Appeals intended to

resolve the case against appellant this Court noted,

“{a]ppellant [name] never sought clarification from the Court

of Appeals on the scope of its decision, and apparently

regarded the court’s judgment to be sufficiently adverse and

binding on him to warrant seeking review on the merits before

this Court.” 450 U.S. at 462 n. 10. The logical corollary to this

statement is that where the ruling of a lower Court is given

prospective application only, the disappointed litigant may not

seek review in this Court because the decision is not sufficiently

adverse and binding on it. Falling within this class, Petitioner

lacks standing to seek review of the issue(s) presented in the

Petition.

decision. (Point B, pages 20 through 23 of the Petition). The Court

found that because the plants comprising the shipment were not

described on the bills of lading as packaged, they did not constitute

COGSA “packages” although, if properly described, some of them

might have warranted treatment as COGSA “packages”. 759 F.2d at

1014 (Appendix 13A of the Petition). Parenthetically, the District

Court’s finding that each plant was individually treated in preparation

for the carriage was rejected by the Court of Appeals as “clearly

erroneous” 759 F.2d at 1014 n.9 (Appendix 14A of the Petition).

Armed with this conclusion, the Court of Appeals articulated the rule

in question, which, had it been applied to Binladen, would have

resulted in Nedlloy. «bility being limited to $500. per container (the

COGSA “nackage”) » .d the Court of Appeals ordering that judgment

be entered accordingly. Instead of applying the rule however, the Court

of Appeals instructed that the shipment be treated as one of “goods

not shipped in packages”, remanding to the District Court for a

determination of the “customary freight unit”.

THE ECISION OF THE COURT OF APPEALS IS NOT

IN CONFLICT WITH DECISIONS OF THIS COURT OR

WITH DECISIONS OF THE COURTS OF APPEAL FOR

THE FIFTH, NINTH OR ELEVENTH CIRCUITS

Although Petitioner argues that the decision of the Court of

Appeals below conflicts with a decision of this Court and with

decisions of other courts of appeal, the comparisons drawn are

illusory and in fact are undercut by recent authority.

Petitioner relies on Northeast Marine Terminal Co. v. Ca-

puto, 432 U.S. 249 (1977), apparently to contend that a rule

treating a container as a “package” within the meaning of

COGSA section 1304(5) conflicts with this Court’s statements.

In Caputo this Court construed the 1972 amendments to the

Longshoremen’s and Harbor Workers’ Compensation Act, 33

U.S.C. § 901 et. seq., which were intended to extend the Act’s

coverage to a larger geographical area for specific types of

workers, to encompass a worker injured while unloading a

container. This Court found that the advent of containeriza-

tion permitted traditional cargo loading and unloading opera-

tions to move shoreward making the container a modern

substitute for the hold of a ship and concluded that the injured

worker was within the scope of the amendments. 432 U.S. at

269-71. The Caputo decision simply has no bearing on the

definition of the term “package” in the context of COGSA and

the law developed in connection with contracts of ocean

carriage represented by bills of lading.*

4 The Court of Appeals for the Second Circuit has expressly recog-

nized that a container is “functionally a part of the ship”, Leather’s

Best, Inc. v. S.S. MORMACLYNX, 451 F.2d 800, 815 (2d Cir. 1971) in

a line of cases actually construing the “per package” limitation

contained in section 1304(5) of COGSA. See, Mitsui & Co., Ltd. v.

American Export Lines, 636 F.2d 807, 816 (2d Cir. 1981) (citing

Caputo). In fact, the decision of the Court of Appeals below expressly

considered the widely accepted proposition that a container is the

modern extension of a vessel. (Appendix 10A through 11A of the

The correctness of the Second Circuit’s reasoning in this case

is evidenced by the decision in Hayes-Leger Associates, Inc. v.

M/V ORIENTAL KNIGHT, 765 F.2d 1076 (11th Cir. 1985)

where the Court of Appeals for the Eleventh Circuit expressly

adopted the Second Circuit’s rule. The Eleventh Circuit con-

cluded that the Second Circuit’s decision supplied a reasonable

method of applying section 1304(5) of COGSA, comported

with che 1968 Brussels Protocol’ and provided certainty for the

maritime industry. 765 F.2d at 1080. In addition, the Court in

Hayes-Leger noted that adopting the rule promoted uniformity

among the circuits. See, id. Thus the purported conflict be-

tween this case and decisions of the Court of Appeals for the

Eleventh Circuit is nonexistent.

The assertion that the Fifth Circuit’s decision in Adlstate

Insurance Co. v. Inversiones Navieras Imparca, C.A., 646 F.2d

169 (Sth Cir. 1981) conflicts with the Second Circuit’s decision

in this case is fallacious. In Jnversiones Navieras the Fifth

Petition). Therefore, to the extent that the discussion Caputo is

instructive in applying section 1304(5) of COGSA, it has long been a

component of the “per package” limitation analysis developed in the

Second Circuit.

5 The 1968 Brussels Protocol to Amend the International Convention

for the Unification of Certain Rules of Law Relating to BILLS OF

LADING provides in pertinent part:

“Article 2

(c) Where a container, pallet or similar article of transport is

used to consolidate goods, the number of packages or units

enumerated in the bill of lading as packed in such article of

transport shall be deemed the number of packages or units for

the purpose of this paragraph as far as these packages or units

are concerned. Except as aforesaid such article of transport shall

be considered the package or unit.”

The rule established by the Second Circuit in this case comports with

this international convention; where the bill of lading does not reflect

the number of packages, each “article of transport” (i.e. container)

shall be deemed the package or unit. Mitsui & Co., Ltd. v. American

Export Lines, 636 F.2d 807, 821 (2d Cir. 1981). Thus the decision

promotes international uniformity.

8

Circuit held that a container would not be considered a

COGSA “package” where the goods in question were placed in

packages (cartons in that case) and the number of such pack-

ages was disclosed to the carrier on the bill of lading or

otherwise. 646 F.2d at 172-73. In that scenario each individual

package within the container was determined to be the COGSA

“package”. Thus the Fifth Circuit in Jnversiones Navieras did

not consider a case where the bill of lading specified the

number of containers but did not reveal the number of pack-

ages inside, the factual context of the Second Circuit’s decision

in this case.°

The decision of the Court of Appeals for the Ninth Circuit

in Hartford Fire Insurance Co. v. Pacific Far East Line, Inc.,

491 F.2d 960 (9th Cir.), cert. denied, 419 U.S. 873 (1974)

similarly addressed a different issue and thus does not conflict

with the Second Circuit’s decision. Hartford concerned the

carriage of one large unboxed electrical transformer fastened

to a skid; no container was involved in the movement and the

Court of Appeals was not called on to construe a bill of lading

contract. The Ninth Circuit held that merely attaching the

transformer to the skid did not create one COGSA “package”,

instead the transformer was not shipped in a “package”,

implicating the “per customary freight unit” limitation of

liability contained in section 1304(5) of COGSA. Thus Hart-

6 The Fifth Circuit’s decision in Jnversiones Navieras is in complete

harmony with Second Circuii decisions generated by analogous facts.

Compare, Inversiones Navieras, 646 F.2d 169 (Sth Cir. 1981) with,

Smythgreyhound v. M/V EURYGENES, 666 F.2d 746 (2d Cir. 1981)

and, Mitsui & Co., Ltd. v. American Export Lines, 636 F.2d 807 (2d

Cir. 1981). In both Smythgreyhound and Mitsui the relevant bills of

lading disclosed the contents of the containers in terms of :eparate

packages. In addition, because the Eleventh Circuit adopted as prece-

dent the decisions of the Fifth Circuit rendered prior to October 1,

1981, see, Hayes-Leger, 765 F.2d 1076 at 1079 n.6, the Inversiones

Navieras decision was the law of the Circuit when Hayes-Leger was

decided.

9

ford is factually and legally distinguishable from the Second

Circuit’s decision.’

The decision of the Court of Appeals in this case is not in

conflict with decisions of this Court or with decisions of the

Courts of Appeal for the Eleventh, Fifth or Ninth Circuits.

Moreover, the rule formulated in the decision has been adopted

by the Court of Appeals for the Eleventh Circuit.

THE DECISION OF THE COURT BELOW IS

CORRECT AND IN ACCORD WITH ITS PRIOR

DECISIONS

The Second Circuit’s decision provides a reasonable rule for

a limited category of cases which that Court had expressly

declined to address in prior cases not properly raising the issue.

In addressing the COGSA “per package” limitation of an

ocean carrier’s exposure, the Second Circuit developed, and

now uniformly applies, the doctrine that the touchstone of the

inquiry is an analysis of the parties intent manifested in the bill

of lading contract. See, e.g., Allied Int’l American Eagle

Trading Corp. v. S.S. YANG MING, 672 F.2d 1055 (2d Cir.

1982); Standard Electrica, S.A. v. Hamburg Sudamerikanische

Dampfschifffahrts-Gessellschaft, 375 F.2d 943, 946 (2d Cir.),

cert. denied, 389 U.S. 831 (1967). Applying this overarching

principle, the Second Circuit has held that where the bill of

lading discloses the number of containers and the number of

items qualifying as packages loaded inside, the container will

not be the COGSA “package”. Mitsui & Co., Ltd. v. Ameri-

can Export Lines, 636 F.2d 807 (2d Cir. 1981); see, Smythgrey-

7 Insofar as Petitioner suggests that the Second Circuit’s decision

conflicts with the definition of a “package” the Ninth Circuit adopted

from Black’s Law Dictionary in Hartford (page 8 of the Petition), the

Second Circuit recognized that “[t]his definition confirms our intuition

about what a package is, but it does little to establish a satisfying legal

standard.” Allied Int’! American Eagle Trading Corp. v. S.S. YANG

MING, 672 F.2d 1055, 1057 (2d Cir. 1982).

10

hound v. M/V EURYGENES, 666 F.2d 746 (2d Cir. 1981)

(applying the Mitsui decision). Where a container is loaded

with unpackaged goods which, absent a container, would have

been shipped in a crate of comparable size and the shipping

documents provide the carrier with no information regarding

the number of units within the container, the container has

been held to be the COGSA “package”. Rosenbruch v. Ameri-

can Export Isbrandtsen Lines, Inc., 543 F.2d 967 (2d Cir.),

cert. denied, 429 U.S. 939 (1976). Where the bill of lading

contains no agreement regarding packaging of a containerized

cargo and describes the goods as not separately packaged, the

carrier’s limitation of liability is applied “per customary freight

unit” for “goods not shipped in packages.” Watermill Export,

Inc. v. M.V. PONCE, 506 F. Supp. 612 (S.D.N.Y. 1981).

However, the Court heretofore refrained from ruling on the

treatment to be accorded situations where the bill of lading

fails to disclose the number of alternative “packages” within a

container. Mitsui, 636 F.2d at 821 n.18 (“Nothing said here, of

course, covers the situation in which the bill of lading does not

show how many separate packages or units there are.”);

Smythgreyhound, 666 F.2d at 752 n.16 (“Mitsui did not cover

the situation in which the bill of lading does not show how

many separate packages there are.”).

The instant case arose in a factual context squarely present-

ing the issue left unresolved in prior cases. The rule created by

the Second Circuit merely completes the logical analysis devel-

oped to address COGSA “per package” limitation issues.

i aaa oor.

11

IV

THE QUESTION(S) PETITIONER RAISES

DO NOT MERIT REVIEW

The issue(s) raised in the present case are too narrow to

warrant review by this Court on certiorari. The rule articulated

by the Court of Appeals for the Second Circuit applies to the

rare case where the bill of lading contract lists a container as a

package and does not provide an alternative number of pack-

ages and the parties have not specified that the shipment is

comprised of “goods not shipped in packages’. This con-

fluence of factors is unusual® and unlikely to recur with

regularity. In fact, the vast majority of containerized ocean

carriages involve shipments composed of several smaller

COGSA “packages”. In order to avoid application of the rule

created in this case a shipper merely has to disclose the number

of component packages to the ocean carrier, thus implicating

the holdings of the Mitsui, 636 F.2d 807 (2d Cir. 1981) and the

Smythgreyhound, 666 F.2d 746 (2d Cir. 1981) cases.

In addition, this Court should not exercise its discretion to

review one aspect of the impact of containerization on section

1304(S) of COGSA because the law in this area is still evolving

and unsettled. Issues arising under section 1304(5) of COGSA

must be resolved with reference to the particular facts of a

case, the section eludes construction as a straightforward

matter of law. Finally, resolution of the question(s) Petitioner

raises will entail redefining the language of COGSA, a duty

appropriately left to Congress.

8 The singularity of this factual matrix is evidenced by the fact that the

issue it engenders remained unresolved from the date of the Second

Circuit’s decision in Mitsui (January 16, 1981) through the date of the

decision in question (April 3, 1985).

12

CONCLUSION

For the foregoing reasons the Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

RICHARD H. SOMMER

Counsel of Record

KIRLIN, CAMPBELL & KEATING

14 Wall Street

New York, New York 10005

(212) 732-5520

Attorneys for ?espondent

J. SCOT PROVAN

ARTHUR E. HOFFMANN, JR.

Of Counsel

APPENDIX A

\

Subsidiaries

Shipping

KHL-Lijnen B.V., Rotterdam

KNSM-Kroonburgh B.V.. Rotterdam

KNSM-Lijnen B.V., Rotterdam.

Nedlloyd (Singapore) Pte Ltd . Singapore

Nedlloyd Bulk (Belgié) N.V.. Antwerpen

Nedlloyd Shipbrokers Ltd., Londen

Nedlloyd Bulkchem B V., Rotterdam

Nedlloyd Fleet Services (HK) Ltd. Hongkong

Nedlloyd Group (Antiles) N.V.. Willemstad

Nedlloyd Lines (Antilles) N.V., Willemstad

Nieuwe Kustvaart Maatschappi B V.. Amsterdam

Noordzee Veerdiensten B V.. Europoort

Exploitation of Drilling Units

Nedlloyd Inc., Houston

Mammoet Transport

Mammoet Liner Services B.V.. Amsterdam

Mammoet Shipping B.V., Amsterdam

Mammoet Stoof B.V.. Breda

Rhine and Iniand Shipping

Nedlloyd Rijn- en Binnenvaart B V., Rotterdam

Shipping Agencies

Holland West-Afrika Liin B.V.. Tema

Nedlloyd KK (Agency), Tokio

Nediloyd KK, Kobe

Nedlloyd KK, Nagoya

Nedlloyd KK, Osaka

Nedlloyd KK, Yokohama

Nedlioyd (HK) Ltd., Hong Kong

Ned!loyd-EAC Agencies Pte. Ltd.. Singapore

2a

Nedlloyd Agencies SA (Pty) Ltd. Durban

Nedlloyd Agencies SA (Pty) Ltd.. Cape Town

Nedlloyd Agencies SA (Pty) Ltd . East London

Nedlloyd Agencies SA (Pty) Ltc . Johannesburg

Nedlloyd Agencies SA (Pty) Ltd . Port Elizabeth

Nedlloyd Inc.. New York

Transpacific Transportation Company, San Francisco

Transpacific Transportation Company. Los Angeles

Transpacific Transportation Company, Portland

Transpacific Transportation Company Ltd.. Vancouver

Kronschiff “chiffsagenturen GmbH, Duisburg

H. Oehl Au, Basel

Plate-Ruys & Cie S.A., Le Havre

Raffin & Cie S.A., Dunkirk

Reedereikontor GUnther Preuss GmbH. Dusseldo

H. C. Réver GmbH, Hamburg

Ruys & Co. B.V. (The Netherlands), Rotterdam

Ruys & Co. N.V. (Belgium), Antwerp

Ruys & Co. S.A., Paris

Ruys & Co. S.A. (France), Marseilles

Stevedoring/Warehousing

Combined Terminals Amsterdam v.o.f., Amsterdam

Havenbedrijf Kroonviag Rotterdam B.V., Rotterdam

Aug. de Meyer B.V., Terneuzen

B.V. Stevedore Company ‘Quick Dispatch’, Rotterdam

Uniterminal B.V., Rotterdam

Offshore Supply

Damco Offshore B V.. Amsterdam

Damco Offshore Ltd.. Aberdeen

Damco Offshore (Texas) Inc.. Houston

General Trucking and International Forwarding

C.R. Armfield (Hull) Ltd., Hull

Aveka S.a.r.l., Strassbourg

Damco Baltimore Inc., Baltimore

Damco Boston Inc.. Boston

Damco Charleston Inc., Charleston

Damco Forwarding N.V., Antwerp

Damco-Fritz Rieder Spedition GmbH, Berlin

Damco-Fritz Rieder Spedition GmbH, Nurnberg

Damco International (France) S.A.. Paris

Damco International Forwarders Ltd , Barking

3a

Damco International Transportation & Distribution Inc. New Yc

Damco Internationale Spedition GmbH, Nurnberg

Damco Transport Nederland B V., Rotterdam

Damco Spedizioni Internazionali, Genoa

Damco-van Swieten B.V., Amsterdam

Damco-van Swieten B.V., Rotterdam

Frans Hoynck’s Scheepvaartkantoor B.V.. Amsterdam

Intermodal Transports B.V., Amsterdam

Karl Schroers Speditions- und Schiffahrts GmbH. Duisburg

Van Swieten B.V.. Amsterdam

Specialised Trucking and International Forwarding

Braakman Autovervoer B.V., Oosterhout

Damco Creten Transport N.V., Merksem (Antwerp)

Damco GG Transport B.V., Rotterdam

E.1.C. Nederland B.V., Drachten

‘Ereska’ Internationale Spedition- und

Transportgesellschaft mbH, Netteta!

J.P. Janssen B.V., Venlo

J.P. Janssen GmbH, Nett: ‘al

N.V. J.P. Janssen S.A., Ternat

RSK Internationale Expeditie- en Vervoer-

onderneming B.V., Amsterdam

Reym Tanktransport (Reym Charters) B.V., Veendam

Ruys Auto Transport (Ruys & Co.), Antwerp

Schenker & Co's internationale Expeditie BV,

Nijmegen/Rotterdam

Airfreight Forwarding

Aeronaut B.V., Amsterdam Airport

Chartair Europe B.V., Amsterdam Airport

Chairtair U.K., Heathrow .

Damco Air B.V.. Amsterdam Airport

Damco Air, Zaventem

Damco Air S.A.. Charles de Gaulle Airport, Roissy

Damco Air Spedition GmbH, Frankfurt/Main

Damco Distribution International and Servicing BV

Amsterdam Airport

Damco Expres B V.. Amsterdam Airport

Damco International Transport (HK) Ltd . Hong Kong

Damco International Transport (Singapore) Pte Ltd . Singapore

General Freight Handling B V.. Amsterdam Airport

Trade and Industries

Autocenter Borghstijn B.V., Rotterdam

Autocenter Van Gorp Dordrecnt B V , Dordrecht

Autocenter Van Gorp Rotterdam BV ., Rotterdam

_Autocenter Pietersen Rotterdam B V., Rotterdam