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13-1685-cv

OOO ―Garant-S‖ v. Empire United Lines Co., Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 5

th day of February, two thousand thirteen.

PRESENT: REENA RAGGI,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges.

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OOO ―GARANT-S‖,

Plaintiff-Appellant,

v. No. 13-1685-cv

EMPIRE UNITED LINES CO., INC., MICHAEL 

KHITRINOV AKA MICHAEL HITRINOV, 

Defendants-Appellees.

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APPEARING FOR APPELLANT: KOSTYANTYN NESTEROV, ESQ. (Dmitri A. 

Chernov, Esq., on the brief), Rockville, 

Maryland.

APPEARING FOR APPELLEES: JON WERNER, ESQ. (Edward P. Flood, Esq.

on the brief), Lyons & Flood, LLP, New York, 

New York.
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Appeal from a judgment of the United States District Court for the Eastern District 

of New York (Frederic Block, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment entered on March 29, 2013, is AFFIRMED.

Plaintiff OOO ―Garant-S‖ (―Garant-S‖) appeals from the grant of summary 

judgment in favor of Defendants Empire United Lines Co., Inc. (―Empire‖) and Michael 

Khitrinov (―Khitrinov‖) for breach of contract and various tort claims under New Jersey 

state law resulting from the theft of two motor vehicles. Specifically, Garant-S challenges 

determinations that Empire‘s liability is statutorily limited to $1,000 (which Empire has 

paid), and that Khitrinov is not the alter ego of Empire. We review an award of summary 

judgment de novo, viewing the record evidence in the light most favorable to non-moving 

party Garant-S and drawing all reasonable inferences in its favor. See Fed. R. Civ. P. 

56(a); Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., 612 F.3d 138, 144 (2d 

Cir. 2010). We assume the parties‘ familiarity with the facts and record of the underlying 

proceedings, which we reference only as necessary to explain our decision to affirm.

1. Empire‘s Limited Liability

Garant-S contends that the district court erred in ruling that the Carriage of Goods 

by Sea Act, ch. 228, 49 Stat. 1207 (1936) (codified as a note to 46 U.S.C. § 30701) 

(―COGSA‖),

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limited Empire‘s liability to $1,000 for three reasons: (1) COGSA does not 

apply to Garant-S‘s claims; (2) Empire‘s unreasonable actions deprived it of the benefit of 

limited liability; and (3) Garant-S was denied a fair opportunity to declare a value in excess 

of the standard limited liability amount.

First, we agree with the district court that, although a bill of lading never issued,

COGSA applied because Empire‘s house bill of lading expanded COGSA‘s scope to reach

the time at which the two later-stolen vehicles came into Empire‘s possession at its 

Elizabeth, New Jersey warehouse. COGSA applies ―to all contracts for carriage of goods 

by sea between the ports of the United States and the ports of foreign countries.‖ Nippon 

Fire & Marine Ins., Co. v. M.V. Tourcoing, 167 F.3d 99, 100 (2d Cir. 1999). It ―applies 

by its own force [] during  ̳the period from the time when the goods are loaded on to the 

time when they are discharged from the ship.‘‖ Hartford Fire Ins. Co. v. Orient Overseas 

Containers Lines (UK) Ltd., 230 F.3d 549, 557 (2d Cir. 2000) (quoting former 46 U.S.C. 

§ 1301(e)). Parties may also by bill of lading ― ̳contractually extend COGSA‘s 

 

1 Until 2006, COGSA was codified at 46 U.S.C. § 1300, et seq. 
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application beyond its normal parameters.‘‖ Id. (quoting Colgate Palmolive Co. v. S/S 

Dart Canada, 724 F.2d 313, 315 (2d Cir. 1983)). Here, Empire‘s house bill of lading 

states that Empire ―undertakes responsibility from the place of receipt if named herein or 

from the port of loading to the port of discharge or the place of delivery if named hereto.‖ 

J.A. 141. Moreover, a previous bill of lading between the parties lists the ―place of 

receipt‖ as Elizabeth, New Jersey. Because the two automobiles were stolen after arriving 

at Empire‘s Elizabeth, New Jersey facility, COGSA applies by contract to limit the liability 

for each package to $500.

Garant-S contends that COGSA does not apply here for two reasons. Garant-S 

first argues that COGSA does not apply because Empire never issued a bill of lading. We 

disagree. Although no bill of lading in fact issued for the two automobiles, this is because 

the automobiles were stolen at a point in the shipping process before Empire customarily 

issues the bill. Garant-S has shipped hundreds of vehicles with Empire since 2008, with a

standard arrangement consisting of inland trucking of the automobiles from auction to 

Empire‘s Elizabeth, New Jersey location, where they await ocean carriage. The only bill 

of lading between the parties in the record lists Elizabeth, New Jersey as the ―place of 

receipt,‖ and Garant-S has provided neither evidence nor argument to suggest that this was 

not customary. Because there is no indication that the house bill of lading with which 

Garant-S had extensive experience would not have issued, COGSA applies by contract. 

Cf. Cweklinsky v. Mobil Chem. Co., 364 F.3d 68, 77 (2d Cir. 2004) (applying Connecticut 

law and stating that implied contract exists where parties ―agreed, either by words or 

actions or conduct, to undertake [some] form of actual contract commitment‖ (alteration in 

original and internal quotation marks omitted)); Luckenbach S.S. Co., Inc. v. Am. Mills 

Co., 24 F.2d 704, 705 (5th Cir. 1928) (holding that parties may be bound by ocean bill of 

lading even where none had issued at the time cargo was lost). 

Garant-S also argues that the house bill of lading distinguishes between ―place of 

receipt‖ and ―port of loading,‖ and that the house bill of lading limits COGSA‘s application 

to when goods are delivered to the ―port of loading‖ and not the ―place of receipt.‖ 

Garant-S never made this argument before the district court, however, and thus did not 

preserve it for appeal. See Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir. 2000). Of 

course, this court has discretion to consider arguments raised for the first time on appeal, 

but we are unlikely to do so where the question is not purely legal and additional 

fact-finding is required. Id. Because additional fact-finding is required to determine 

whether the ―place of receipt‖ and the ―port of loading‖ are in fact distinct places, we 

decline to consider Garant-S‘s argument.2

 

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The only bill of lading in the record identifies the ―place of receipt‖ as ―Elizabeth, New 
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Second, assuming arguendo that Empire played a part in the theft, as Garant-S 

asserts, we agree with the district court that this is not an unreasonable deviation that 

nullifies COGSA‘s limitation of liability. The doctrine of ―unreasonable deviation‖ 

deprives a carrier of its COGSA benefits, including limited liability, where the carrier 

engages in a deviation that is unjustifiable. Because this doctrine ―grew out of the 

pre-COGSA law of marine insurance,‖ however, it has been narrowly limited to a few

specific scenarios. B.M.A. Indus., Ltd. v. Nigerian Star Line, Ltd., 786 F.2d 90, 91 (2d 

Cir. 1986). It was applied originally when a vessel geographically departed from its 

scheduled and anticipated route, causing an increased risk of danger to cargo. See id. It 

was later extended to unauthorized on-deck stowage, which again involved the increased 

risk of damage, see id. at 91–92 (citing pre- and post-COGSA case law), and to the 

issuance of bills of lading incorrectly stating that goods have been received on board

because this was considered unreasonable under pre-COGSA admiralty law, see Berisford 

Metals Corp. v. S/S Salvador, 779 F.2d 841, 846 (2d Cir. 1985). 

This court has declined to extend the doctrine further. In Iligan Integrated Steel 

Mills, Inc. v. S.S. John Weyerhaeuser, 507 F.2d 68 (2d Cir. 1974) (Friendly, J.), this court 

held that it was not an unreasonable deviation for a carrier knowingly or with gross 

negligence to supply an unseaworthy vessel that damaged cargo because holding otherwise 

would require inquiry into the carrier‘s culpability and thereby defeat COGSA‘s purpose 

of establishing clear and administrable rules for allocating loss. See id. at 72 (stating that 

―shippers or, realistically, their insurers would demand a further inquiry into the degree of 

the carrier‘s culpability, with enormous potential liability‖). We have construed Iligan to 

apply even where a carrier is alleged to have engaged in conduct prohibited by the criminal 

law. See B.M.A. Indus., Ltd. v. Nigerian Star Line, Ltd., 786 F.2d at 92 (holding that it is 

not an unreasonable deviation for carrier‘s agent, whose actions are attributable to carrier, 

to accept bribe to deliver cargo to unknown party); Italia Di Navigazione, S.p.A. v. M.V. 

Hermes I, 724 F.2d 21, 22 (2d Cir. 1983) (holding that ―systematic theft‖ by carrier does

not amount to unreasonable deviation that would void statute of limitations). These cases 

control here. Whether a carrier intentionally gives the cargo to a briber after shipment or 

intentionally allows or participates in a theft prior to shipment is irrelevant, in both 

instances the carrier is responsible for having delivered the cargo to an improper party

while COGSA applied. 

 

Jersey,‖ and the ―port of loading‖ as ―New Jersey.‖ On that record alone, we cannot tell 

whether the ―port of loading‖ is distinct from the ―place of receipt.‖
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Garant-S‘s attempt to distinguish this case from Nigerian Star on the grounds that 

there the carrier intended properly to deliver the cargo is unpersuasive. Nigerian Star

assumed that the agent‘s intentional actions were attributable to the carrier when it held no 

deviation to apply no matter when in the shipping process the intended misdelivery 

occurred. Further, Garant-S‘s attempt to cast this case as an extreme geographical 

deviation is misplaced because that reasoning would equally apply to, and therefore be 

inconsistent with, Nigerian Star.

Third, the district court did not err in finding that Garant-S had a fair opportunity to 

declare a value in excess of $500 per package, i.e., per car. COGSA ―provides that the 

carrier‘s liability is limited to $500 per package unless a higher value is declared by the 

shipper and inserted in the bill of lading, or the parties agree to a higher limit.‖ Nippon 

Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d at 101 (citing former 46 U.S.C. § 

1304(5)). ―Under the  ̳fair opportunity‘ doctrine, however, the COGSA limit is 

inapplicable if the shipper does not have a fair opportunity to declare higher value and pay 

an excess charge for additional protection.‖ Id. (citation omitted). ―The carrier bears the 

initial burden of proving fair opportunity.‖ Gen. Elec. Co. v. MV Nedlloyd, 817 F.2d 

1022, 1029 (2d Cir. 1987). Once the carrier presents prima facie evidence that an 

opportunity existed—something that can be established from the language of the bill of 

lading—the burden shifts to the shipper to demonstrate that a fair opportunity did not exist. 

See id.

Here, Empire‘s house bill of lading states:

In no event shall the Carrier be or bec[o]me liable for any loss 

of or damage to or in connection with the Goods in an amount 

exceeding the limit per package or unit . . . provided for by 

[COGSA] . . . unless the nature and value of such goods have 

been declared by the Shipper before shipment, agreed by the 

Carrier [and] inserted in the Bill of Lading . . . .

J.A. 117. This unambiguously notifies the shipper both that COGSA applies to limit 

liability and that a higher value may be declared. Garant-S nonetheless maintains that this 

language does not constitute prima facie evidence of a fair opportunity because the bill of 

lading does not have a space to declare excess value. Cf. Binladen BSB Landscaping v. 

M.V. ―Nedlloyd Rotterdam‖, 759 F.2d 1006, 1017 n.12 (2d Cir. 1985) (concluding that the 

burden was satisfied where the bill of lading incorporated COGSA and provided space for 

declaring excess value). The argument demands too much at the prima facie stage. 

Although it may be a best practice to include a space for an excess declaration, as the bill in 
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Binladen did, where the bill clearly states that liability is limited unless the nature and 

value of the goods is declared on the bill of lading, a specific space is not needed. This

lack of space, of course, remains relevant to whether a fair opportunity was actually 

provided. 

Here, we conclude that a reasonable jury presented with the totality of the evidence 

in the summary judgment record could find only that a fair opportunity was actually 

provided. It is uncontested that Garant-S had declared a higher value in the past, and 

Garant-S presented no evidence to suggest that the bill of lading that would have issued 

here but for the theft is in any way different from the past bills of lading, or that its 

interactions with Empire were materially different such that the previous method it used for 

declaring excess value was not available in this particular instance.

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 Moreover, 

Garant-S‘s denial that it knew of the limited liability is contradicted by its aforementioned 

admission that it previously declared excess value and belied by the fact that it is an 

experienced commercial shipper. See Gen. Elec. Co. v. MV Nedlloyd, 817 F.2d at 1029 

(noting that ―[a]s an experienced shipper, [the plaintiff] obviously knew it could declare a 

higher value‖). The evidence compels the conclusion that Garant-S had an opportunity to 

declare a higher value and made a business decision not to do so. Thus, it cannot now 

adjust its loss calculation retrospectively by denying it had an opportunity to declare a 

higher value.

In sum, the district court did not err in granting partial summary judgment in 

Empire‘s favor.

2. Khitrinov‘s Individual Liability

The district court also properly concluded that no reasonable jury could find that 

Empire is Khitrinov‘s alter ego. ―Alter ego liability exists when a parent or owner uses 

the corporate form  ̳to achieve fraud, or when the corporation has been so dominated by an 

individual or another corporation (usually a parent corporation), and its separate identity so 

disregarded, that it primarily transacted the dominator‘s business rather than its own.‘‖ 

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 195 (2d Cir. 2010) (quoting Gartner

v. Snyder, 607 F.2d 582, 586 (2d Cir. 1979) (applying New York law)), aff‘d, 133 S. Ct. 

 

3 Garant-S argues that it is a non-sequitur to say it had an opportunity to declare excess 

value when Empire at first denied having ever taken possession of the cars. This 

argument is unavailing since the cars were stolen after Garant-S‘s shipment but before

Empire‘s denials. 
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1659 (2013).4 ―In deciding whether to pierce the corporate veil,  ̳courts look to a variety 

of factors, including the intermingling of corporate and [shareholder] funds, 

undercapitalization of the corporation, failure to observe corporate formalities such as the 

maintenance of separate books and records, failure to pay dividends, insolvency at the time 

of a transaction, siphoning off of funds by the dominant shareholder, and the inactivity of 

other officers and directors.‘‖ Id. (quoting Bridgestone/Firestone, Inc. v. Recovery Credit 

Servs., Inc., 98 F.3d 13, 18 (2d Cir. 1996)). ―The decision whether to pierce the corporate 

veil in a given instance depends on the particular facts and circumstances.‖ Weinstein v. 

Willow Lake Corp., 262 A.D.2d 634, 635, 692 N.Y.S.2d 667, 667 (2d Dep‘t 1999). 

Although there is evidence that Khitrinov was Empire‘s sole shareholder and that 

Empire never had a board of directors or, apparently, a company treasurer or secretary, it is 

nevertheless clear from the record that Empire is distinct from Khitrinov. There is no 

evidence whatsoever that Empire conducted Khitrinov‘s business as opposed to its own 

business. More specifically, Garant-S fails to point to any evidence of intermingling of 

personal and corporate funds, of failure to maintain adequate records, or of Empire 

conducting business for Khitrinov‘s personal benefit. The lack of corporate formalities

that Garant-S presses here as key evidence of Empire being Khitrinov‘s alter ego is 

unpersuasive because, ―with respect to small, privately-held corporations,  ̳the trappings of 

sophisticated corporate life are rarely present,‘ and we must avoid an over-rigid 

 ̳preoccupation with questions of structure, financial and accounting sophistication or 

dividend policy or history.‘‖ Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 

98 F.3d at 18 (quoting William Wrigley Jr. Co. v. Waters, 890 F.2d 594, 601 (2d Cir. 

1989)).

 

We have considered Garant-S‘s remaining arguments and reject them as without 

merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: 

CATHERINE O=HAGAN WOLFE, Clerk of Court

 

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The parties appear to assume that New York veil-piercing law applies because they cite 

only cases interpreting New York law. The court agrees because Empire is incorporated 

under New York law and, under New York choice of law rules, the state of incorporation‘s 

law governs veil piercing. See Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995).