Stolen Mascara Not Subject to COGSA

Stolen Mascara Not Subject to COGSA

Remand Ordered

By: Arthur Crais

Blinc, Inc. v. AZ Miami Corp., 2015 U.S. Dist. LEXIS 84776 (S.D. Fla., June 30, 2015)After a shipment of mascara and eyeliner was “released by warehouse personnel to ‘criminals who had been made aware of the arrival and pending release’” of the merchandise, the shipper brought suit in state court alleging state claims of negligence and negligent bailment. The defendant sought to remove the case under 28 U.S.C. Sec 1337 (granting federal courts original jurisdiction of claiming arising under any act of Congress regulating commerce) and further maintained that the Carmack Amendment applied as well as COGSA pursuant to a Himalaya clause in the bill of lading. In addition, the defendant sought dismissal on the grounds of preemption.Based upon discovery, the parties agreed that the Carmack amendment did not apply. But, while the combined bill of lading extended COGSA to pre-lading and post-discharge periods, the court stated that it was unclear whether it applied after the merchandise was delivered to the plaintiff in Miami. The trial judge thus found that the defendant failed to prove federal question jurisdiction and remanded the case to state court.