Avenue, Suite 190 

e, New York 10580 

ne(914)921-1200 

Via U.S. Mail 

Honorable P. Kevin Castel 

Daniel Patrick Moynihan U.S. 

500 Pearl Street, Room 2260 

New York, NY 10007 

Tel: (2 12) 805-0262 

Dear Judge Castel: ~ 

Re: Nippon Express U.S.A. (Illinois), Inc. v. 

Case No: 06 Civ. 694 (PKC) 

Our File: 1412.37 

We represent Plaintiff Nippon Express U.S.A. (IlIinois), Inc. n connection with the 

referenced cargo damage matter. 1 I 

U/"Chiang Jiang Bridge 

I write now to request permission to submit this letter as a s -reply on the pending 

motion to dismiss to respond to certain authorities raised for the by Yang Ming in 

reply. 

I 

PROPOSED SUR -REPLY MEMORANDUM 

CONCERNING NEWLY RAISED AUTHORITI:2S 

Should the Court wish to consider it, we would respectllly point ut to the court that the 

Second Circuit case newly cited by Yang Ming, Nippon Fire & Marine ns. Co. Ltd v. Skyway 

Freight Systems, Inc., 235 F. 3d 53, 60 (2d Cir. 2000), actually strong1 supports our position 

herein holding that a party whilst it is acting as a warehousemen in the idst of a longer cargo 

movement is indeed also acting as a carrier. The same should thus be sai of TransBay Terminal, 

i.e. that as a terminal it is also at the same time a "carrier" because i engaged in "carriage" 

within the clear meaning of this bill of lading's definition of carriage. A case even more closely 

on point is The Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 1 979 F.Supp. 206, 212 

(S.D.N.Y. 1997), qff'd 167 F.3d 99 (2d Cir. 1999). In that case, the wanted to be part 

of the carriage contract. The Court accepted that argument, and that the work of a 

stevedore comes within the definition of ''part of [the] now rule that a 

Case 1:06-cv-00694-PKC Document 21 Filed 06/22/2007 Page 1 of 2
stevedore is not engaged in the "caniage" of goods would create a cl ar inconsistency in the 

law.' 

As concerns Yang Ming's other new attempt to define a "carri r," under Black's Law 

Dictionary, the cases interpreting that treatise hold that "a carrier is an i ividual or organization 

engaged in transporting passengers or goods for hire." Those Cerfain i nderwriters at Lloyd's 

Subscribing to Policy Number 25693JB, 932 F.Supp. 1444, 1448 (S.D.F a.,1996) (citing Black's 

Law Dictionary 214 (6th ed. 1990)); Adelman v. Hub Ciiy Los Ang 4 es Terminal, Inc., 856 

F.Supp. 1544, Fn. 2 (N.D.Ala., 1994) (citing Black's Lav Dictiona 214 (Deluxe 6th ed. 

1991)); Black's Law Dictionary 205 (7th ed., 1999) ("carrier. 1. An or organization 

(such as a railroad or an airline) that transports passengers or goods for 

Clearly, a terminal operator "transports" goods. This is confirm in the seminal federal 

statute on domestic transportation, the Carmack Amendment, which "transportation" as 

follows: 

property, facility, 

movement of passengers or property, or both, 

an agreement concerning use; and 

(B) services related to that 

receipt, delivery, elevation, transfer in transit, 

ventilation, storage, handling, packing, unpacking, 

passengers and property. 49 U.S.C. $13 102 (23) 

Should the Court consider it useful, Plaintiff respectfully request oral argument on this 

motion. 

At the end of the day, if experienced maritime lawyers need ~l&k's Law Dictionary to 

We thank the Court for its kind consideration. ! 

try to understand what the term "Underlying Carrier" means, it has to 

ambiguous to non-lawyers (likely reading in Japan). 

-ink+ 

avid T. Maloof 

at least be considered 

cc: Via Facsimile- 212-344-7285 

Paul M. Keane, Esq. 

Chicanowicz Callan Keane Vengrow & Textor 

Altorneysfor Defendant 

' The Court may note that we were counsel in both of these two cases, but that is hardly s rprising since we are 

among the leading cargo counsel in the country, with many decisions (mostly winning!) t k our credit. 

Case 1:06-cv-00694-PKC Document 21 Filed 06/22/2007 Page 2 of 2