UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIPOSAN HARF VE MATBAA GERECLERI

A.S.,

Plaintiff-Appellant,

v.

MASONITE CORPORATION,

Defendant-Appellee,

and

AYERS MARITIME SERVICE,

No. 97-2082

INCORPORATED,

Defendant,

v.

B.D.P. INTERNATIONAL,

INCORPORATED; EVANS MARITIME

SERVICES, INCORPORATED; JET

COMPANIA NAVIERA S.A.,

Third Party Defendants.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CA-94-885-BO)

Argued: May 7, 1998

Decided: August 10, 1998

Before ERVIN and HAMILTON, Circuit Judges, and

BLAKE, United States District Judge for the District of Maryland,

sitting by designation.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Keith Edward Hope, KEITH E. HOPE, P.A., Tallahassee,

Florida, for Appellant. David Alan Nash, HOGUE, HILL, JONES,

NASH & LYNCH, L.L.P., Wilmington, North Carolina, for Appellee.

ON BRIEF: Robert B. White, Jr., SOBERING, WHITE &

LUCZAK, P.A., Orlando, Florida, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-appellant Tiposan Harf ve Matbaa Gerecleri ("Tiposan")

appeals the district court's grant of summary judgment to defendantappellee Masonite Corporation on its breach of contract claims. Finding no error, we affirm.

I.

Tiposan, a Turkish company, contracted with Masonite to purchase

a quantity of medium density fiberboard ("MDF") manufactured by

Masonite in North Carolina. The terms of the sale were "CF Istanbul."

"CF" (also called "C&F") means that the price includes cost and

freight. See N.C. Gen. Stat. § 25-2-320 (1995). Under this type of

contract, the risk of subsequent loss or damage to the goods passes to

the buyer upon delivery to the carrier, as long as the seller has properly performed all its obligations with respect to the goods. See id.

cmt. 1.

 2
The carrier selected to transport the fiberboard was Jet Compania

Naviera ("Jet"). Tiposan claims, and for summary judgment purposes

we accept its contention as true, that Masonite's product manager,

Mike Hopkins, booked the shipment himself rather than going

through Masonite's usual freight broker, B.D.P. International Inc., or

having Tiposan book it.

Masonite delivered the MDF to the carrier, Jet, and was issued a

clean bill of lading. According to industry practice, such a "clean" bill

of lading indicates that the goods to be shipped were stored "on

board" (i.e. below deck) and not "on deck." See, e.g., Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 303-04 (2d Cir. 1987)

("It has long been recognized in admiralty custom and practice that

a "clean" bill of lading refers also to the place on a ship where cargo

is to be stowed. `[A] clean bill of lading imports that the goods are

to be safely and properly stowed under deck.'" (quoting The

Delaware, 81 U.S. (14 Wall.) 579, 602 (1871)) (footnote omitted)).

Nonetheless, because of overbooking Jet stored a portion of the MDF

on the deck of the ship and, as a result, this portion sustained water

damage as it was being shipped from the port in Wilmington, North

Carolina to Istanbul, Turkey. Both parties agree that the MDF should

have been stowed below deck in order to avoid water damage. Jet, the

entity responsible for stowing the MDF below deck, is in bankruptcy.

Tiposan brought suit against Masonite alleging Masonite was negligent and in breach of the sales agreement by failing to make reasonable and adequate shipping arrangements, and negligent and in breach

of the terms of the letter of credit by allowing a clean bill of lading

to be issued by Jet at the time the MDF was loaded onto the ship in

Wilmington. Masonite responded by filing a motion for summary

judgment against Tiposan.

The district court granted Masonite's summary judgment motion,

noting in its order that under the terms of the CF contract, once

Masonite had "(1) put the MDF into the possession of the carrier at

the port for shipment and procured a reasonable contract of carriage

for the MDF, (2) received a clean bill of lading, and (3) forwarded

and tendered an invoice for the goods and the bill of lad[ing] to Tiposan and notified Tiposan of the shipment, Masonite[had] fully and

satisfactorily performed its duties under the contract with Tiposan."

 3
J.A. at 106. The district court went on to observe that "[t]here [was]

no indication from the contract or the statutes which govern[ed] the

contract that Masonite should be held accountable for the fact that the

MDF was stowed on deck and was damages [sic] as a result thereof."

Id. (citation omitted). Therefore, because there was "no question as to

what Masonite's duties were" and "no question that Masonite fulfilled

those duties," Tiposan had failed to establish a genuine issue of material fact as required to survive summary judgment. Id.

II.

After reviewing the parties' briefs and the applicable law, and having had the benefit of oral argument, we conclude that the district

court's order of summary judgment for Masonite was correct.

Accordingly, we affirm on the reasoning of the district court.

AFFIRMED

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