Fishman & Tobin v. Tropical Shipping & Construction Co., 240 F.3d956 (11th Cir. 2001).

The claimants are both clothing manufacturers which utilized the same carrier, defendant, for shipments of its clothing. The first claimant, Fishman, shipped its product in a unit referred to in the industry as a "big pack." A big pack is akin to a pallet and contains bundles of clothing wrapped in paper and sorted by style. The second claimant, MacClenny, shipped men’s suits and jackets in extra tall containers containing structural beams on which to place "garment-on-hanger packages." Each garment-on-hanger container could hold between 4500 and 5500 hangers.

During a routine voyage, the defendant had a number of containers fall overboard due to improper storage on the vessel. The defendant admitted liability, and the only issue was the definition of a package under COGSA. The district court held that the Fishman package was a big pack and that Fishman was entitled to compensation for $500.00 per big pack. The district court further held that MacClenny could receive only $500.00 in compensation for the loss of one container. Both claimants appealed the ruling.

The Court of Appeals first discussed four basic principles identified by the Second Circuit in Hayes-Leger Associates, Inc. v. M/V Oriental Knight for applying the term "package" to containerized shipments: (1) the contractual agreement between the parties as set forth in the Bill of Lading; (2) the term "package" means the result of some preparation for transportation "which facilitates handling but which does not necessarily conceal or completely enclose the goods;" (3) a container cannot be a COGSA package absent "a clear agreement between the parties to that effect, [and ] at least so long as its contents and the number of packages or units are disclosed;" and (4) "absent an agreement in the Bill of Lading as to packaging of the cargo, goods placed in containers and described as not separately packaged will be classified as goods not shipped in packages."

Fishman contended that the smaller bundles of pants, referred to as "dozens," should be considered packages rather than the big packs used to store these dozens before they go into the containers. The Court of Appeals stated that the touchtone of the analysis is the contractual agreement between the parties as set forth in the Bill of Lading. Otherwise, if the number of packages is not fully and accurately disclosed and easily discernable by the carrier, carriers will suffer unforeseen liability. In the instant case, both the Bill of Lading and the shipping documents agreed that the number of packages shipped was the number of "big packs" shipped. Therefore, the Court of Appeals held that recovery for Fishman would be based on the thirty-nine big packs indicated.

MacClenny argued that a single jacket packaged on a hanger and enclosed in a poly bag was understood in the industry to be a unit of packaging. Under the quantity column in the Bill of Lading, the description stated the dimensions of one container. However, the description of goods stated 5,000 units men’s suits were inside the container. In addition, U.S. Customs rules and regulations compel shippers to specify jackets as units, thus establishing each packaged jacket as a standard shipping unit. Even so, after reviewing the customs declaration form and reembarque, the Court of Appeals found that MacClenny of their own will stipulated under the number of packages column only one. The evidence that each garment-on-hanger was a recognized shipping unit was inconclusive. Finding MacClenny to be experienced in the shipping business, the Court of Appeals held that it should have understood the significance to COGSA recovery of correctly completing all of the declaration forms and bills. Thus, MacClenny was awarded $500.00 for a single container shipped.