Albany Insurance Company v. M v. Istrian Express, Her Engines, Tackle, MacHinery Appurtenances, Etc., in Rem

ORDER

The memorandum disposition filed June 22,1995, is redesignated as an authored opinion by Judge Gibson.

OPINION

Albany Insurance Company appeals the district court’s grant of summary judgment in favor of the M.V. Istrian Express in Albany’s in rem action against the M.V. Istrian Express for damage to goods sustained in transport. We reverse.

The district court granted the M.V. Istrian Express’ motion for summary judgment because no contract of carriage existed between the M.V. Istrian Express and Albany’s insured/subrogor, Ekland Marketing Company. In reaching its decision, the district court relied on Ins. Co. of N. America v. S.S. American Argosy, 732 F.2d 299 , 302-304 (2d Cir.1984). However, S.S. American Argosy is inapposite.

In S.S. American Argosy, the cargo in issue was damaged after it was discharged from the S.S. American Argosy, the vessel against which the maritime lien was being executed. Because the cargo’s non-vessel operating common carrier (“NVOCC”) had issued a bill of lading purporting to provide carriage through to the cargo’s final destination, the subrogated insurer brought an in rem action against the S.S. American Argosy, claiming that the ship’s…