## Facts

- Fishman & Tobin, Inc. (Fishman) and MacClenny Products, Inc. (MacClenny) shipped clothing in ocean containers carried by Tropical Shipping & Construction Co. (Tropical).
- Fishman’s cargo consisted of 27,908 pairs of boys’ pants bundled in sets of twelve, placed into 39 cartons referred to as “big packs,” and loaded into a single 40-foot container.
- Fishman’s bill of lading described the shipment as “one 40 foot container said to contain 39 big packs containing 27,908 units of boys’ pants.”
- MacClenny’s cargo consisted of 5,000 men’s jackets shipped using a garment-on-hanger method: each jacket was individually wrapped in plastic and hung inside a 40-foot container rather than boxed or packed into cartons.
- MacClenny’s bill of lading described the shipment as “one forty foot container said to contain 5000 units of men’s jackets.”
- The containers were lost at sea from Tropical’s vessel.
- Fishman and MacClenny sued Tropical under the Carriage of Goods by Sea Act (COGSA) for cargo loss.
- Tropical accepted responsibility for the loss but relied on COGSA’s $500-per-package limitation, requiring the court to decide what counted as a “package” for each shipment.

## Issues

1. For Fishman’s shipment, does COGSA treat each “big pack,” the individual bundles/garments, or the container as the relevant “package” for the $500 limitation?
2. For MacClenny’s garment-on-hanger shipment, does COGSA treat each jacket, the hangers/arrangement inside the container, or the container itself as the “package” for the $500 limitation?

## Decision

- For Fishman, the court held the 39 “big packs” were the COGSA packages, limiting Tropical’s liability to 39 × $500 ($19,500).
- For MacClenny, the court held the container was the COGSA package because the shipment had no smaller packaged units identified as packages, limiting liability to $500 for the container’s loss.

## Legal Principles

- Under COGSA § 4(5), carrier liability for loss or damage is limited to $500 per “package,” or (if goods are not shipped in packages) $500 per customary freight unit, unless the shipper declares a higher value and pays any related charges.
- “Package” is not defined in COGSA; courts determine the package by looking first to the bill of lading’s description and the shipping unit reflected there.
- When a bill of lading clearly identifies and counts intermediate shipping units that function as packages (such as cartons, pallet-like units, or similar handled units), those units are generally treated as the COGSA packages rather than the individual items inside.
- A container is not automatically a COGSA package; it may be treated as the package when the bill of lading and the shipment method do not identify any smaller, qualifying packaged units and the container is the operative unit tendered to and handled by the carrier.
- Shippers can avoid the $500 limitation by declaring a higher value on the bill of lading in the manner contemplated by COGSA.

## Conclusion

The court applied COGSA’s $500 limitation by tying the “package” inquiry to the bill of lading and the shipping units actually used: Fishman’s pants were shipped and listed as 39 “big packs,” so Tropical’s exposure was capped at $19,500, while MacClenny’s garment-on-hanger jackets were not shipped in smaller packaged units and were described only as a container holding 5,000 jackets, so the container was treated as the package and recovery was capped at $500.


Fishman & Tobin, Inc. v. Tropical Shipping & Construction Co., 1999 AMC 1051 (1999)